Kelly v Lausalu [2019] SBHC 46; HCSI-CC 470 of 2018 (5 July 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kelly v Lausalu
Citation:
Date of decision:	5 July 2019
Parties:	Martin Kelly, Dominion Enterprises, Samlinsun Company Limited v James/Jimmy Lausalu, John Kwalegau, Bushman Enterprises, New World Company Limited
Date of hearing:	12 June 2019
Court file number(s):	CC 470 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Application for Default Judgment refused with costs against all defendants Malaita Provincial Executive is joined as a defendant party Matter prepared for trial with speed All operations under license A 101698 and A 10406 are to be halted until further orders of the court Second defendant’s late filed defence is declared effectual Third claimant removed as a party by consent of counsel
Representation:	Mr. B Etomea for the Claimant 1 to 3 Mr. B Kaehuna for the Defendant 1,3 and 4 Mr. P Teddy for the Defendant 2
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act (cap 133)as amended, s254(1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 470 of 2018

MARTIN KELLY
(Representing the Niuki Tribe owing The Niuki/Matangaitala Customary Land)
Claimant

DOMINION ENTERPRISES
(Licensee)
Second Claimant

SAMLINSUN COMPANY LIMITED
Third Claimant

V

JAMES/JIMMY LAUSALU
First Defendant

JOHN KWALEGAU
Second Defendant

BUSHMAN ENTERPRISES
Third Defendant

NEW WORLD COMPANY LIMITED
Fourth Defendant

Date of Hearing: 12 June 2019
Date of Ruling: 5 July 2019

Mr. B Etomea for the Claimant 1 to 3
Mr. B Kaehuna for the Defendant 1, 3 and 4
Mr. P Teddy for the Defendant 2

RULING ON APPLICATION FOR DEFAULT JUDGMENT

1. Claimant applied for default judgment, because he effected proper service on the defendants. Yet the defendants have not filed defences in the time allowed by the Rules. Second defendant filed a defence on 2/05/2019. Even that defence was filed late, because service was made on 2^nd defendant on 8/03/2019. So I find that none of the defendants have filed their defences on time.
2. This leads me to enquire, if the defendants have a reasonable cause for the delay in not filing a defence. Mr. Kaehuna for the 4^th defendant offered no explanation for delay. Mr. Teddy for the 2^nd defendant says the delay was because, his client had seen 3 lawyers before, his third lawyer, Togamae law firm could enter appearance for him. On file there is a Notice of change of Advocate filed 01/05/2019, by Togamae law firm to move file from Dominion lawyers. Evidence shows there were attempts to engage, Steward Tabo and Barnabas Upwe. I accept finding a lawyer is not easy. So I accept the reason for late defence by the 2^nd defendant.
3. Next is whether the defendants have a meritorious defence. This is a dispute about ownership of a piece of customary land called Matangaitala Customary land. It is about trespass on that land. First claimant assert ownership over Matangaitala land. And invited 2^nd and 3^rd claimants to do logging within Matangaitala/Niuki land (M/N land). First and second defendants also assert ownership over the same M/N land. Defendants collectively assert possession of a valid felling license over MN land. The same goes for the claimants collectively, asserting possession of a valid felling license over M/N land.
4. So the meritorious defence is issue of ownership and trespass between claimants collectively and defendants collectively, but in particular ownership assertions over M/N land, and/or Gwounafou land, between 1^st claimant, 1^st defendant and 2^nd defendant. I must say that whenever there is a dispute over customary land ownership, it entails boundaries, genealogies and customary law. And these are matters of custom that must be resolved at the appropriate forum. So how could I possibly enter judgment on issues that I have no power to enquire into? Even the Timber Rights determination of trustees by the Executive Government does not make a binding and conclusive determination on ownership, boundary and genealogy issues. It is not the work of the Executive to do this. Executive is not a tribunal to determine matters of customary land disputes. So no one should ever rely on Executive’s determination of trustees in a timber rights grant as binding and conclusive determination on customary land ownership. Only the Local Court can resolve disputes on customary land^[1]. Currently local court has quashed the chiefs’ decisions on M/N land and referred the matter back to the chiefs. So ownership issue is still outstanding. In view of what I say, customary land ownership disputes by their nature warrants trial rather than early termination, through default judgment. But trial in this court is dependent on ownership being settled in the appropriate forum.
5. The other issue is on the 2 licenses. Which license covers the M/N land? Is it A10406 or A101698? There is one serious issue of illegality surfacing or apparent on face appearance of the 2 licenses concerned. That is to do with the manner the Timber Rights hearing/determination was made by Malaita Provincial Executive (Executive). I called for the Timber Rights determination of the 2 licenses. The one supplied did confirm my concern. That on the face of the determination, there is an apparent serious illegality. But this will be an issue for proper investigation at trial. Second defendant also raised the issue whether the Executive had excluded M/N land from second claimant’s Timber Rights determination and hence removed/excluded it from its license A101698 (issue for trial). I am yet to see the determination for license A10406. The court is the custodian of the law and whenever there are serious illegality of the law (Forestry law), the court need to pay attention. And public policy demands that every illegality must not be left unpunished. Again matter for trial. And I will order the Executive to become a party to answer to the apparent illegality or for enforcement purposes only.
6. This claim was served only in the first quarter of 2019. And the application for default judgment was filed on 8/03/2019. So the case is progressing with good pace. But of course the applicant is prejudiced by having to apply for default judgment against the defendants owing to non-filing of defence within the time required. I will therefore order cost in favour of claimant.
7. Accordingly, the Court orders are:-
   • 7.1 Application for Default Judgment refused with costs against all defendants.
   • 7.2 Malaita Provincial Executive is joined as a defendant party.
   • 7.3 Matter prepared for trial with speed.
   • 7.4 All operations under license A 101698 and A 10406 are to be halted until further orders of the court.
   • 7.5 Second defendant’s late filed defence is declared effectual.
   • 7.6 Third claimant removed as a party by consent of counsel.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

---

^[1] Section 254 (1) of Land and Titles Act (Cap 133), as amended.