Alu Development Corporation Ltd v Oceanic Trading Co Ltd [2024] SBHC 89; HCSI-CC 257 of 2021 (9 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Alu Development Corp Ltd v Oceania Trading Co. Ltd
Citation:
Date of decision:	9 August 2024
Parties:	Alu Development Corporation Limited, George Taylor v Oceania Trading Company Limited
Date of hearing:	15 April 2024 and 23 April 2024
Court file number(s):	257 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. That the defence filed by the defendant on 21st June 2021, is hereby summarily dismissed, and uphold the reliefs sought in the claim filed on 21st May 2021. 2. The Claimant to proceed for next step of filing of an application for assessment of damages. 3. Costs of this hearing is awarded to the Claimants on standard basis if not agreed.
Representation:	Mr. D. Nimepo for the Claimants (1) and (2) Mr E Olofia for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 9.57, 9.60 and 9.61, Land and Titles Act S 97 (1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 257 of 2021

BETWEEN

ALU DEVELOPMENT CORPORATION LIMITED
First Claimant

AND:

GEORGE TAYLOR
Second Claimant

AND:

OCEANIA TRADING COMPANY LIMITED
Defendant

Date of Hearing: 15 April 2024 and 23 April 2024
Date of Ruling: 9 August 2024

Mr. D Nimepo for the Claimants (1) and (2)
MR. E Olofia for the Defendant

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Faukona, DCJ.

1. A Claim in Category A was filed on 21^st May 2021, supported by a sworn statement deposed by Mr. George Taylor filed on the same date.
2. On 21^st May 2021, the Defendant acknowledged receiving the Claim. Upon receiving, the Defendant’s Counsel gave notice that he will file defence within 28 days, that was by 18^th June 2021. He failed to file on that date but file on 26^th June 2021, eight (8) days late.
3. Despite the defence was filed late, the Claimant do not intend to file any application for default judgment, but filed an application for summary judgment on 6^th July 2021, pursuant to rules 9.57, 9.60 and 9.61.
4. The primary reliefs sought in the Claim are for trespass and damages and for conversion of merchantable trees felled within saena registered land PE N0. 019-001-10 often referred to as LR 714. The value of such is in the tune of SI$5,000,000.00.
5. The second relief sought is for destruction of environment in the tune of SI $5,000,000.00.
6. The first Claimant was the holder of registered grant of profit over PN.019-001-10. The second Claimant was the registered owner of PE N0. 019-001-10.
7. The Defendant was a company contracted to carry out logging operations in a separate portion of registered lands adjacent, under a separate logging concession, covered by felling licence N0. A10 1683.
8. Whilst the Defendant was carrying out logging operation on other adjacent blocks, had trespassed into PE N0. 019-001-10, registered block owned by the second Claimant.
9. On 14^th February 2023, this application was heard but suspended to allow parties to refer the boundary dispute to the Registrar of Titles under section 97(1) of Land and Titles Act to verify the common boundary between the two registered Lands.
10. The parties eventually filed the referral with the Registrar of Titles. On 26^th June 2023 the Registrar of Titles sent a copy of the determination to the Claimant’s Counsel.
11. In fact, the Registrar of Titles did not make any independent determination of his own. He refers to a report filed by lands officer based in Gizo, who surveyed the land.
12. However, the Registrar of Titles was satisfied there was a general encroachment into LR 714 of PN. 019-01-010, although the report he referred to did not ascertain the position of the boundary pegs common between LR 714 and LR 713.
13. In his recommendation, he stated a further survey should be done using Total Statistic. The survey would determine the position or location of three registered lands not just two. They are LR 714 – PN: 019-01-010, LR 713 – PN. 019- 01-013 and LR 715 –PN. 019-01-011.
14. Since the recommendation included another registered land to be surveyed, it is advisable that if possible, should be done.
15. The Claimants submission rely on the report made by the lands officer in Gizo in 2018, which the Registrar of Titles affirms as true, that there was trespass into LR 714. The report identified Tim 7 as one of the pegs separating LR 713 and LR 714.
16. The report also confirm the existence of the road entering into LR 714, from LR 713. The entry of this road occurred about 400m along the boundary lines of Tim 7 – Tim 5. The length of the road is about 1.8km into LR 714, it is the length of the encroachment.
17. The Defendant in its defence deny that its operation trespassed into the Claimants registered land but within its concession area of Sale and Haleta. It also denies any destruction of the 2^nd Claimant’s land and environment.
18. The problem encountered by the Defendant is that it failed to file any sworn statement in support of its defence. Such failure has totally negatived the defendant’s case. If there is no evidence to support it, it merely becomes a bare defence.
19. In submissions, the counsel for the Defendant has raised a total new issue. That due to its evidence the registration was made without survey to properly determine the boundary. One way is to give notice to the landowners or grantors of the Defendant’s felling operations.
20. In paragraph 18 above the Defendant had failed to file any sworn statement. Where is that evidence coming from so that land registration was made without any survey. This case does not involve any registration. It involves trespass into registered land and damage was done to environment and extraction of logs for sale.
21. I noted on the report the Registrar of Titles has mention three registered land, one is an additional which may require further report.
22. In the light that there is no evidence supporting the defence case, I hereby exercise discretion to omit the third land from the report. It is an additional land mention by the Registrar of Titles which was not mention in the report of the lands officer, Gizo.
23. If the Registrar of Titles affirms the report by the lands officer, indicated he was convinced that there was trespass done by the Defendant into LR 714.
24. With these narratives, and the fact that the Defendant has not filed any sworn statement in support of its defence until now, I therefore grant the application for summary judgment.

Orders.

1. That the defence filed by the defendant on 21^st June 2021, is hereby summarily dismissed, and uphold the reliefs sought in the claim filed on 21^st May 2021.
2. The Claimant to proceed for next step of filing of an application for assessment of damages.
3. Costs of this hearing is awarded to the Claimants on standard basis if not agreed.

The Court.
Hon. Rex Faukona.
DEPUTY CHIEF JUSTICE.