Huge v Mas Pacific (SI) International Ltd [2022] SBHC 18; HCSI-CRC 324 of 2019 (22 March 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Huge v Mas Pacific International Ltd
Citation:
Date of decision:	22 March 2022
Parties:	Moffat Huge, Pogu Enterprises Company v Mas Pacific International Limited
Date of hearing:	8 September 2021
Court file number(s):	324 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Application for Summary Judgement dismissed. 2. Cost of this application is to be paid by the Claimants to the Defendant. 3. Case adjourned to 17th March 2022 for mention.
Representation:	Mr. M. Ipo for the (1) Claimant (2) Mr. I Kako for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 97 (1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 324 of 20219

BETWEEN

MOFFAT HUGE
Claimant

AND:

POGU ENTERPRISES COMPANY
Second Claimant

AND:

MAS PACIFIC INTERNATIONAL LIMITED
Defendant

Date of Hearing: 8 September 2021
Date of Decision: 22 March 2022

Mr. M. Ipo for the Claimant (1) and (2)
Mr. I. Kako for the Defendant

RULING ON APPLICATION TO DISMISS CLAIM OR SUMMARY JUDGMENT

Faukona, DCJ: A Claim in Category A was filed on 27^th May 2019. A defence and counter claim was filed on 17^th July 2019. A reply to Defendant’s defence and counter-claim was filed on 2^nd August 2019. Apparently pleadings had been closed.

2. The First Claimant was a registered PE owner of Sidu land LR 688 or PN: 089-002-3. The Claimant represents his Boboe 2 Clan and its members in this proceeding.
3. The Second Claimant was the holder of felling licence No. A10612 which was granted by way of grant of profit in respect of the Claimant’s registered land as above. By that grant the second Claimant should enjoy logging activities in the land in question for 5 years from 1^st January 2017.
4. The Defendant is a company engaged in logging activities within Kahigi land or LR 288. It is an adjacent land which shares a common boundary with the Claimant’s land. Both lands run parallel to each other from the coastline.
5. The reliefs sought in the claim are for damages for trespass and environmental degradation; damages for conversion of tress; permanent injunction; and interest and cost.
6. It may appear the major dispute circles around the common boundary between the two registered lands. As a preliminary role, this court made direction order on 6^th December 2019, that the Registrar of Titles, pursuant to S.97 (1) of the Land and Title Act, to survey and determine the boundary between Sidu land PN. 089-002-3 and Kahigi land PN: 089-002-1.
7. A report dated 14^th May 2020 was finally compiled and was attached to the sworn statement of Mr. Manga as Exhibit “JAM-I”.
8. The determination as I note in paragraph (3) of page 7 states, “The boundary line between Sidu land PN: 089-002-3 and Kahigi land PN: 089-002-1 which runs from boundary mark 688 to online mark A688 or 100m peg or the least to boundary mark SS/688 in the bush is in straight line and emerging in its correct position.
9. And paragraph 4, page 7 states, that Mas Pacific (SI) International Limited’s logging activities had encroached and trespassed into Sidu land PN: 089-002-3, where tress were felled and extracted for export.
10. After the sworn statement of Mr. Malanga, which attached the report was filed on 27^th August 2020, that the Claimants filed this application for summary judgement.

Issues arise after the report was filed:

11. A copy of the Registrar’s report was filed first in time on 5^th June 2020 by Mr. Gada attached to his sworn statement before the Registrar of Title filed he’s on 27^th August 2020.
12. As a result attracted the sworn-statements of Mr. Lim filed on 28^th August 2020 and 2^nd October 2020 respectively.
13. I noted there are various reports filed by other forest officers and may probably refer to. This court will not consider other reports except one filed by the Register of Titles because he himself and others attended in person and conducted the survey following the order of this court.
14. It may now seem the argument or dispute concern the reports and the identification of the boundary line between the two registered lands after such finding and determination whether there was trespass or not. However, to touch on trespass is to touch on the substitutive issue, and so is the application for summary judgment.

Application for Summary Judgment

15. An application by the Claimant for Summary Judgment is provided for under R9.57. Rule 9.59 states “A Claimant’s application for Summary Judgement must have with it a sworn statement that
    • (a) verifies the fact stated in the claim; and
    • (b) states that the Claimant believes there is no defence to the claim; and
    • (c) ..............
16. I have the privilege to search the court file thoroughly and I find there is no sworn statement or evidence that supports the facts pleaded in the claim. What appears is a concentration of argument concerning the survey reports. The only evidence noted is those attached to the report compiled by the Registrar of Titles, and nothing more.
17. Rule 9.62 advocates a person wishing to oppose an application for summary judgement,
    • (a) may (if a defendant) file a sworn statement setting out the reasons why the defendant has an arguable defence or (if a Claimant) where there is a real prospect of any part of the Claimant’s claim succeeding, and
    • (b) ...........
18. Confine to this particular issue the Defendant did not file a sworn statement at all in support of its defence. However, it is a discretionally upon itself, it may or may not.
19. In any event this court will only determine the application for summary judgement effectively with concise reasons, if the Claimant adhered to the requirement that they should file a sworn statement in support of the claim. The boundary determination between the two registered lands is part and partial of facts that will enable the court to determine the allegation of trespass and damages. And the fact noted is that there is nothing in the claim that identified the area of trespass though refrigerated by the report.
20. In my opinion, what could have been the way forward is, after the Registrar of Titles had determined the common boundary between the two registered lands, the Claimant should file a sworn statement in support of the claim and the Defendant should likewise reply in a normal way before the application for summary judgement. The application was filed pre-mature. I must therefore dismiss it with costs.

Orders:

1. Application for Summary Judgement dismissed.
2. Cost of this application is to be paid by the Claimants to the Defendant.
3. Case adjourned to 17^th March 2022 for mention.

THE COURT.
Hon. Justice Rex Faukona
Deputy Chief Justice.