Manepuria v Commissioner of Forest [2024] SBHC 4; HCSI-CC 416 of 2022 (6 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Manepuria v Commissioner of Forest
Citation:
Date of decision:	6 February 2024
Parties:	Timothy Manepuria, Bulososo Forest Resources Limited v Commissioner of Forest, Valepelo Development Company Limited, Grace Logging Company
Date of hearing:	30 January 2024
Court file number(s):	416 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:	1. The application by 2nd and 3rd defendants for dismissal of the proceeding on the ground of an abuse of the court’s process under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted. 2. In consequence hereof, the entire proceeding inclusive of the interim orders and any pending interlocutory applications are dismissed forthwith. 3. The application for summary judgment is dismissed for it also amounted to an abuse of the court’s process under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007. 4. Cost of this hearing is to be paid by the 1st and 2nd claimants to the 1st, 2nd and 3rd defendants on standard basis.
Representation:	Mr D Nimepo for the 1st and 2nd Claimants Mr E Waiwaki for the 1st Defendant Ms Y Samuel for the 2nd and 3rd Defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Middle Island Investment PTY Ltd v Ghiro [2013] SBHC 146

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 416 of 2022

BETWEEN

TIMOTHY MANEPURIA
(Representing himself and his tribe owning group of Tetekanji Land East Guadalcanal, Guadalcanal Province)
1^st Claimant

AND:

BULOSOSO FOREST RESOURCES LIMITED
2^nd Claimant

AND:

COMMISSIONER OF FOREST
1^st Defendant

AND:

VALEPELO DEVELOPMENT COMPANY LIMITED
2^nd Defendant

AND:

GRACE LOGGING COMPANY
3^rd Defendant

Date of Haring: 30 January 2024
Date of Ruling: 6 February 2024

Mr D Nimepo for the 1^st and 2^nd Claimants
Mr E Waiwaki for the 1^st Defendant
Ms Y Samuel for the 2^nd and 3^rd Defendant

RULING

Commissionner Aulanga

1. There are two applications for me to determine. First, an application for summary judgment filed by 1^st and 2^nd claimants on 16^th November 2023. The second is an application for dismissal of proceeding filed by 2^nd and 3^rd defendants on 17^th November 2023. That second application was based purely on a question of law which requires the examination of the relevant rules and legal principles applicable to the circumstance of this matter.
2. I prefer to first deal with the second application. That is, for dismissal of the proceeding since its outcome will eventually determine the survival of the application for summary judgment. In other words, if I find that the proceeding is to be dismissed on the ground of an abuse of the court’s process under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 then that should be the end of the matter. By logic, there is nothing more left that would warrant or enliven the court to make a finding on the remaining application.

Application for dismissal of proceeding

3. This application can be easily disposed or resolved. In the application, the 2^nd and 3^rd defendants narrated the brief history of the matter, revealing that the claimants filed the claim in Category A on 23^rd January 2023, naming all the three defendants to the proceeding. Prior to filing of the claim, the court on 23^rd September 2022 had issued interim injunctive orders restraining the 2^nd and 3^rd defendants from undertaking logging activities inside Tetekanji customary land in the East Guadalcanal region.
4. On 4^th April 2023, the claim was believed to be served on all the defendants by the 1^st claimant Timothy Manepuria. A sworn statement of Manepuria as proof of the service of the claim was filed on 27^th April 2023. There was no defence filed by any of the defendants and an application for default judgment was heard.
5. On the court’s record, the default judgment application was heard on papers before Justice Lawry. It turned out that the application was refused. The court thereby declined to grant the orders. In the court’s orders delivered on 1^st November 2023 when it refused to grant the default judgment, it concluded there was no evidence to show the claim was served on all the three defendants in these unequivocal terms:
   • “1. There is no evidence that the claim was served on the First and Second Defendants as required, the claim against them is lapsed.
   • 2. The Court cannot be satisfied even on the balance of probability that the claim was served on the Third Defendant as required. The application for default judgment against the Third Defendant is refused”.^[1]
6. In court, Counsel Ms. Samuel for the 2^nd and 3^rd defendants submitted that as a result of the court’s finding on 1^st November 2023, it evidences in clear terms that there was no service of the claim on all the defendants. This therefore means that the claimants have breached rule 5.43^[2] for failing to serve the claim within the three months statutory time from the date of the filing of the claim. Consequently, as averred by counsel, it must follow that there is no longer any effective or valid claim before the court for continuity of the proceeding. The action taken by the claimants to file this proceeding after the claim was declared ineffective is improper and tantamount to an abuse of the court’s process recognised under rule 9.75 (c) of the Solomon Islands (Civil Procedure) Rules 2007.

Response to the application for dismissal of proceeding

7. There is no direct response to the application. The claimants through counsel only emphasised that the claim is not frivolous and vexatious. Counsel Nimepo submitted that the claim was founded on an illegal logging operation inside the 1^st claimant’s Tetekanji customary land which requires it not to be prematurely terminated. While that was not the issue, counsel unfortunately laboured on and did not assist the court on any submission or authority on the validity of the claim to necessitate further proceeding in the existing matter after it was declared ineffective.
8. What actually transpired during counsel Nimepo’s submission was an attempt to revisit or reopen the findings of the court in the default judgment, which in my view, is improper. Counsel, without filing of an application to set aside the orders, attempted to call the 1^st claimant to give oral evidence to prove the properness of the service of the claim and by implication, the default judgment orders ought to be set aside. Counsel also submitted the need for the court to have that evidence of the service of the claim to support the application for the summary judgment.
9. During the hearing, I have declined to have the witness called because the claimants did not file an application to set aside the default judgment orders and notice to call the witness. Without the application and notice to call the witness, it will be improper for the court to entertain such ambush hearing. The legal process for civil proceeding must be followed and not to be circumvented at one’s own whim.

Whether the claim was effective following the court’s ruling on 1st November 2023

10. The orders of the court of 1^st November 2023 are clear. They in fact confirmed that there was no service of the claim on all the three defendants since it was filed on the 23^rd January 2023. It also held that the claim against all the defendants now lapsed and became ineffective.
11. For purposes of emphasis, rule 5.43 states:
    • “If a claim is not served within 3 months of the date endorsed by the registrar under rule 4.3:
    • (a) the claimant may apply to the Registrar to have the claim renewed within one month after the expiry of that period; and
    • (b) if the claimant does not do this, the claim ceases to be of any effect.
1. Where the Registrar agrees to renew a claim under this sub-rule the claim may be renewed for a further three months and the Registrar shall endorse the claim accordingly.”
12. By rule 5.43, it imposes a statutory obligation on the claimants to serve the claim on the defendants within three months. For this present case, it should be served by 23^rd April 2023 calculated from 23^rd January 2023 as the date the claim was filed. In this case, the claimants thought the claim had been properly served by the 1^st claimant on the defendants on 4^th April 2023 which turned out not to be so. This error, that somehow becomes fatal to this case, could have been easily avoided if the claimants are prudent and undertaken careful check on the need for the proper service of the claim on the defendants.
13. It is to be noted that despite the ruling and taking into account the time under rule 5.43 (a) for the renewal of the claim has long gone, the claimants did not file any application for leave for the court to possibly extend time under rule 1.14 and 26.5 for the sole purpose of renewing the claim. Since there is no application filed by the claimants, it is improper for me to grant leave under those two provisions for extension of time for the claimants to renew the claim.
14. This entire proceeding as of 1^st November 2023 should become ineffective or ceased to be of any effect. The court already declared it a nullity. The claimants are no longer entitled to any reliefs in the claim when it was declared ineffective. As held in Middle Island Investment Pty Limited v Ghiro^[3] that involved a claim regarding an illegal logging operation was served on the defendant more than four months after it was filed, the court therein held the claim was ineffective and stated: “if the claim is not served within three months from the date of filing then the claim ceases to be any effect.”^[4] Since the claim has been declared ineffective, it must follow that there is no valid claim before the court to warrant further progression of the matter.
15. The time for renewal of the claim has long gone. There is no application to renew the claim on foot. The rule is silent and with respect, perhaps debatable on whether this court can allow renewal of the claim that has bypassed its renewal period more than eight months ago^[5]. This therefore means that the claimants by law are estopped from further litigating the matter after it was declared ineffective, and any subsequent proceeding filed by the claimants after that declaration is an abuse of the court’s process.
16. The application to dismiss the proceeding on the ground of an abuse of the court’s process under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted. Consequently, the entire proceeding inclusive of the existing interim orders and any pending interlocutory applications, are dismissed with cost to be paid by the 1^st and 2^nd claimants to the 1^st, 2^nd and 3^rd defendants on standard basis.

Application for summary judgment

17. Having reached this finding, it is needless for me to consider the second application filed by the claimants for summary judgment. This application was filed on 16^th November 2023 after the claim had been declared ineffective on 1^st November 2023. It must therefore mean that there is nothing more left for the court to consider and adjudicate over any proceedings in the existing matter taken by the claimants following the court’s ruling. Thus, any subsequent proceeding on the existing matter initiated by the claimants, must be invalidated and by law, ought to be out rightly rejected.
18. Having reached this finding, it is my considered view that this application must be dismissed as well pursuant to rule 9.75 (c) of the Solomon Islands (Civil Procedure) Rules 2007 as a result of an abuse of the court’s process.

Orders of the Court

1. The application by 2^nd and 3^rd defendants for dismissal of the proceeding on the ground of an abuse of the court’s process under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted.
2. In consequence hereof, the entire proceeding inclusive of the interim orders and any pending interlocutory applications are dismissed forthwith.
3. The application for summary judgment is dismissed for it also amounted to an abuse of the court’s process under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
4. Cost of this hearing is to be paid by the 1^st and 2^nd claimants to the 1^st, 2^nd and 3^rd defendants on standard basis.

.Augustine Sylver Aulanga
Commissioner of the High Court

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^[1] At page 3 under the orders section of the ruling.
^[2] Solomon Islands Courts (Civil Procedure) Rules 2007.
^[3] [2013] SBHC 146.
^[4] At page 1 of the ruling.
^[5] The claim was filed on 23^rd January 2023. By rule 5.43, it has up to 23^rd April 2023 for service on the three defendants. If no service, under rule 5.43 (a), it may be renewed within 1 month after it has expired which should be by 23^rd May 2023.