Ngwaefuna v Ulasi [2021] SBHC 181; HCSI-CC 500 of 2019 (21 April 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ngwaefuna v Ulasi
Citation:
Date of decision:	21 April 2021
Parties:	John Ngwaefuna v John Ulasi
Date of hearing:	29 January 2021
Court file number(s):	500 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Order is hereby made dismissing the defense file by the Defendant on 9th October 2019. 2. Cost of his hearing to be paid by the Defendant to the Claimant.
Representation:	Mr J To’ofilu for the Claimant Mr O. Limeniala for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act S 12 (2) and (3) Limitation Act S 5 and S 17
Cases cited:	Rupakana V Vozoto [2017] SBCA 8

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 500 of 2019

BETWEEN

JOHN NGWAEFUNA
Claimant

AND:

JOHN ULASI
Defendant

Date of Hearing: 29 January 2021
Date of Ruling: 21 April 2021

Mr J To’ofilu for the Claimant
Mr O. Limeniala for the Defendant

Ruling on application for summary judgment

Faukona, DCJ: This is an application for summary judgment filed by the Claimant on 3^rd February 2020. The Claimant’s legal basis for filing the application is pursuant to Rule 9.57.

2. The rule clearly states that the Claimant may apply for summary judgment where a defendant has filed a defense but the claimant believes that the defendant does not have any real prospect of defending the claim.
3. The major relief sought is for trespass and damages and to curb any further such activities an extended relief for permanent restraining order is sought.
4. For a claim of trespass and damages to be effectively decided the issue of land ownership must first be settled. If it does not then the claim is futile.
5. The Claimant has based his claim and this application on the Chief’s decision dated 8^th November 2011, which was in his favour. The conduct of the case was an inter-parte hearing and since then there was no referral to the local Court by an aggrieved party until 29^th October 2020.
6. The Defendant relies on a judgment of Chiefs dated 20^th June 1989 which gave ownership of abuna customary land to Mr. Uzziel Ulasi.

The issue.

7. Whether the Defendant’s defense discloses issues for investigation at trial?

The principle in application for Summary Judgment.

8. The principle admonishes by the rules in respect to applications for summary judgment is where the Claimant believes the defendant does not have any real prospect of defending the claim-see Rule 9.57. This is a kind of, not so much of academic nature, but upon perusal of the defendant’s case then assessing the strength on the balance, so as to conclude that the Defendant is not in a good position or has no arguable case pursuant to R9.64. Therefore rather than wasting the Courts time the proceedings can be ending earlier by application of this nature.
9. In all manners as a requirement, the Court must be satisfied on the evidence supporting the facts pleaded in the claim. At the end of the day there must be a real dispute between the parties which the Court is obliged to investigate.
10. There are many authorities on this principle. Some are submitted by the parties which I accepted. However, it is worthy to note that there is no two cases have the same and equal set or facts. This mitigates that each case must be decided on its own set of facts.

Analysis of evidence.
Two Chief decisions.

11. The Chiefs’ decision on 30^th June 1989 of which the Defendant relies on was in respect of boundaries between saenaua and babalakona customary lands. It also included humanisi, abuna, gwainali, ura, bokoabu and alileli customary lands.
12. The abuna customary land as identified in the map attached to the Chiefs decision was exhibited by the Defendant under his sworn statement filed on 9^th December 2019. The map clearly prints out abuna customary with demarcated boundaries according to the Chiefs decision given to Mr Uzziel Ulasi; there is no other land more out of the subject lands under dispute awarded to Mr U. Ulasi.
13. In the Chief decision of 8^th November 2011, the subject matter was in respect of two tabu sites. One is likoi within babalakona land and the other was lau’ua land located within saunaua customary land.
14. The Chiefs in their findings further mentioned that abuna customary land was given to Aoole and Tako, and the current Claimant is the rightful owner of that land. Besides that, the Chiefs also awarded lau’ua customary land to the current Claimant.
15. One significant factor I noted, which am not so sure is whether abuna land mentioned in the 1989 case was the same land as abunga mentioned in 2011 case. After sometimes of consideration I could able to conclude they are the same customary land; the synonyms sound the same.
16. Apparently, the reason why the Defendant exhibited the 1989 Chiefs decision was because he must be related to Mr. Uzziel Ulasi bearing the same surname. Therefore from 1989 until now the current Defendant who was connected to Mr. Ulasi, who was awarded the ownership of abuna land.
17. From materials disclosed I am unable to cite a hint that implicates the current Claimant is related to the parties in 1989 case. Therefore his challenge to Mr John Ulasi’s claim of ownership to abuna/abunga customary land was a new litigation which the Chiefs had made their determination on in November 2011.

The referral to the Local Court.

18. To maintain his contention alive, and to remain a litigant the Defendant had filed a referral with the Malaita Local Court on 29^th October 2020 as implicated by GTR receipts for the sum of $55-00 as Court fee.
19. That action though provided for under S. 12 (2) and (3) of the Local Court Act, the Claimant has challenged that as invalid. The reasons the Claimant alludes is that the referral was filed on 29^th October 2020, whilst the Chiefs determination was delivered on 8^th November 2011, hence it was late by 8 years and 11 months. Therefore was time barred in accordance with S. 5 and 17 of limitation Act?
20. S. 5 states that no action shall be brought, nor any arbitration shall commence after the expiration of six years from the date on which the date of action accrued. S. 17 states that a cause of action shall be deemed to accrue on the date on which the right to relief sought by an action arises, with an exception when the cause of action is founded on a continuing wrong then a fresh cause of action deemed to accrue on each day of the wrong.
21. The issue as to when an action be brought, in particular when there is no timeline prescribe, S. 5 of limitation Act states, at the expiry of six years from the date upon which when the action accrued. In this case the date for action accrued as from 8^th November 2011. The Defendant should have filed a referral with the Local Court by 8^th November 2017. By filing it on 29^th October 2020, was late by 8 years and 11 months, thus time barred pursuant to S. 5 of the limitation Act.
22. In the case of Rupakana V Vozoto^[1], Justice Brown stated that the cause of action must deem to have accrued in 2005. It is important that the other party to that determination appears to have gone to the local court for proceedings required by S.12 of Local Court Act as an “aggrieved person”.
23. 23. In the current case the Defendant has taken no steps until 8 years and 11 months had passed. His referral to the Local Court must therefore be time barred. He was only allowed by law to file a referral within six years and not beyond.
24. The decision by Justice Brown was appealed to the Court of Appeal but was dismissed.
25. From the evidence in the materials and as submitted, I find there is no issue that this Court will investigate at trial, or that the Defendant can able to argue. I must therefore summarily dismiss the defense filed by the defendant on 9^th October 2019.

Orders:

1. Order is hereby made dismissing the defense file by the Defendant on 9^th October 2019.
2. Cost of his hearing to be paid by the Defendant to the Claimant.

The Court.

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^[1] [2017] SBCA8; SICOA-CAC of 2017 (13 October 2017)