IN THE HIGH COURT OF SOLOMON
ISLANDS
Civil Case Number 90 of 2001
ass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
TIMOTHY TEspan>
p class="Mss="MsoNormal" align="center" style="text-align: center; margin-left: 3.0pt; margin-top: 1; margin-bottom: 1">
- v -
ALICK SANAU, JSUNUME,
DERRICK LIIHOU AND TOM HOUSI
(TRADING AS RAM HOLDING
TIMBER TRADING)
High Court of Solomon Islands
(FRANK O. KABUI, J)
Civil Case Number 90 of 2001
Hearing: 15th October 2001
<Judgment: 16th October 2001
Mr C. Ashley for thintiff
Mr J. Apaniai for the Defendant
JUDGMENT
(Kabui, J):
By Notice ofon filed on 17th/sup> September 2001, the Plaintiff
seeks the following orders -
ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
1. That the Defendants
Licence TIM 3/294 is a Licence to operate a mill and is not a Licence to
fell logs on Customary
Land; and
2. That part II A of the
Forest rces and Timber Utilizationation Act (as at then was) was not
complied with by the Defendants;
and
3. That the Plaintiff is
entitle to have Judgment entered against the Defendefendants as set out in the
Statement of Claim
dated 17th and filed 21st May 2001.
4. Costs of the application
be boy the Defendants.
This Notice of Motion is based
upon Order 14, rule 1(a) of the High Court (Civil Procedure) Rules 1964 (the
High Court
Rules). Order 14, rule 1(a) above is a summary procedure to save
costs of trial. It does not entitle the Plaintiff to use it
in every case
that is commenced by a writ specially indorsed under Order 3, rule 5 of the
High Court Rules. This procedure
is only used where the Defendant has no
defence to the action commenced by a Plaintiff.
The requirements of Order 14
(1) (a) of the High Court Rules
The High Court Rules in this
jurisdi are based upon the Rules of the Supreme Court in England 1and 1883.
They do not therefore
contain subsequent improvements that were brought
about in later years as revised in 1965. Order 14, rule 1(a) of the High
Court Rules must therefore be read and understood in that context. Order 14,
rule 1(a) of the High Court Rules looks
for a Writ of Summons that is
indorsed with a statement of claim or accompanied by a statement of claim to
which an appearance
has been entered by the Defendant. If the Plaintiff
makes up his or her mind at that stage to move for a summary judgment
against the Defendant on the ground that the Defendant has no defence, then
the Plaintiff or another person must file
an affidavit to support the
application for leave to enter judgment against the Defendant.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The affidavit must however
state facts verify the cause of action, the amount claimed (if it is a is a
liquidated sum)
and the fact that in the Plaintiffs belief, the Defendant
has no defence apart from the amount claimed. These are the requirements
for
the Plaintiff to fulfil if he or she wants relief under Order 14, rule 1(a)
of the High Court Rules. That is to say
...
<
Put shortly, the affidavit
must verify the plaintiffs cause of action. Itn. It must also, to comply with the
rules, depose
that the defendant has no defence, other than as to the amount
of damages, if damages are claimed.
To satisfactorily verify the
cause of action, the affidavit must depose to all the facts necessary to
establish that cause
of action. It must verify the whole of the plaintiffs
claim, that is, every essential element of the cause of action. An affidavit
that fails to do so is insufficient to support the plaintiff's
application�...
... �Apart from verifying
the cause of action, the affidavit must also depose that in the belief of
the plaintiff the
defendant does not have a defence. Elliptical statements
about the absence of a defence are insufficient. The plaintiff must
expressly say that he believes there is no defence to the action"...In the
event that the plaintiff's affidavit
fails to comply with these
requirements, the court has a discretion to allow a supplementary
affidavit�...
ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(see Australian Civil
rocedure by Bernard C. Cairns at 311 � 312).
>
In order for the Defendant to
defeat the Plaintiffs application, hshe must satisfy the Court ourt that
there is a good
defence on the merits or disclose facts which are sufficient
to demonstrate a defence at least generally. That is to say ...
�Machinery is provided by
the rule the defendant to show caus cause why summary judgment should not be
entered. A number
of alternatives are open to the court. It may enter
judgment for the plaintiff, dismiss the application and allow the defendant
unconditional leave to defence, or it may enter judgment for part of the
claim and allow the defendant to defend it in
respect of the balance.
Whatever order is made depends on the material put before the court. This
includes consideration
of the evidence of the defendant as well as of the
plaintiff. Since, in an opposed application, there will be conflicting
submissions and affidavits, the court must exercise a judicial discretion in
reaching a decision. In the exercise of its
discretion the court may grant
leave to defend either unconditionally or on terms. But if the defendant
opposes the application
he must show cause why summary judgment should not
be entered, which is usually done by filing an affidavit in reply to the
plaintiffs affidavit. Of course, if the defendant disputes the plaintiffs
application on technical grounds, affidavit
evidence may not be necessary.
But at all events the defendant should not ignore the proceedings, for a
judgment entered
in the defendant's absence on an application for summary
judgment is not a default judgment, and consequently it cannot be
set aside,
except on appeal.
To successfully show cause
the defendant's affidavit show a defence to the plae plaintiff�s claim and
disclose the facts
on which the defence is based. It is not necessary for
the defendant to show a defence that must succeed. He need only show
that he
has an arguable defence, or, where he asserts that there is a defence on the
facts, that his version of the facts
shows a prima facie defence. A simple
denial is insufficient, the affidavit must show the grounds for the
denial�... (ibid at
313).
The Plaintiff�s Case
On the face of it, the
Plaintiff�s Writ is not speciallyrsed; rather it is a general Writ of
Summons. The Plae Plaintiff
did not apply to amend it so that the Writ of Summons
falls under Order 14, rule 1(a) of the High Court Rules. This point was
raised by Counsel for the Defendants, Mr Apaniai, in his opposition to this
application. Apart from that, I must say
the affidavit filed by the
Plaintiff in support of this application can be said to be defective also.
The Plaintiffs supporting
affidavit is not altogether water - tin terms of the facts to be o be
covered in the affidavit.
For example, the affidavit makes no mention of the
amount claimed or relief sought.
The Defendant's Case
The Defendants had actually
filed their defence on 9th
Is there a defence on the part
of the Defendants?
I think there is a defence on
he merits. The defence is that the Plaintiff cannot allege lege trespass because
the Defendants
went on his land with his permission. The Plaintiff is
estopped by his conduct from alleging trespass against the Defendants.
<
That isiable issue. The
joint affidavit filed on 17th September 2001 by Messrs Honikulu and and Hoapue
is of no relevance
under Order 14, rule 1 of the High Court Rules. That sort
of evidence may well be relevant at the trial proper. Some facts
are also in
dispute. The facts about whether or not, trespass was committed by the
Defendants are in dispute. The facts
about the correct number of logs
extracted from Puriesi Customary land are in dispute. The facts about the
receipt of
$14,800 royalty are in dispute. All these would have to be
ascertained at the trial. The conflict of facts on each of these
issues does
make each issue a triable issue. In reaching a conclusion, the Court must
look for the correct ingredients
for the correct recipe in each case. That
is to say ...� There are three orders available on an application for
summary judgment. Judgment may be given for the plaintiff, or the defendant
may be given leave to defend the claim unconditionally, or subject to
stipulated conditions. While it is true that summary
judgment is entered
only in clear cases, it is usually ordered if the plaintiff shows that he
has a strong claim and
the defendant fails to show that the application is
irregular or that he has an arguable defence. But it is implicit in the
nature of the power that it will be exercised to enter judgment for the
plaintiff only if it is clear that there is really
no question to be
tried�.... (ibid at 312 - 313). The circumstances giving rise to summary
jurisdiction were noted by Lowe, J. in Australian Can Co.
Pty Ltd v Levin & Co. Pty Ltd [1947] VicLawRp 15; [1947] V.L.R 332. After reviewing the
existing authorities, Lowe, J. at page 334 said ... �From all this it
appears that where there is a real case to be investigated either in fact or
in law, leave to defend
should be given�...
Commenting on this same case at
page 313 above, earned author says ...
�What emerges from this is
that leave to defend should be given where there is a case, either of fact
or law, to be investigated�
...
The learned author then
continues, at page 3..
�It is then not necessary
for the defendant to show, in an absolute sense, that he has a defence. All
he need do is raise
an arguable defence, or show that there is a case to be
investigated. Even where the plaintiff appears to be entitled to summary
judgment, the court still has a discretion, it may or may not enter
judgment, depending on its assessment of the circumstance.
The court may
well exercise its discretion against the plaintiff where it is suspicious of
his claim or where an important
or difficult point of law is raised. In
short it may be said that the court will enter summary judgment only in a
clear
case where' it is fair for the proceedings to be determined without a
trial.
Both the courts and the
rules recognize that there are cases where the defendant may be able to
prevent the plaintiff
obtaining summary judgment when he has defence that is
at best dubious, or even a sham. To cater for that situation the court
may
grant the defendant leave to defend on terms. Those terms may relate to
security for costs, time or mode of trial,
or any other matter which the
judge considers appropriate. Under this last category, the court may for
example order
the defendant to make a payment into court. Conditions
relating to the payment of money impose on the defendant a degree of
hardship, and they are considered to be warranted only if the defence is
suspect�...
ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Applying my mind to the facts
of this case against the background of the eng principles applicable inle in
cases bought
under Order 14, rule 1 (a) of the High Court Rules, I am
satisfied that the Plaintiffs application should be dismissed with
costs. I
would give leave for the Defendants to defend the action commenced by the
Plaintiff. In fact, the Defendants
filed their defence as far back as 9th
July 2001. The Plaintiff for his part disregarded that defence and opted for
relief under Order 14, rule 1(a) of the
High Court Rules. That in itself
cannot be said to be wrong although in my view that should not have been
done in this
case. The defence filed by the Defendants on 9th" July 2001
would constitute a good reason for this application to fail.
What the
Plaintiff could have done was file his reply and the pleadings being deemed
closed. In view of my ruling, the
Plaintiff is now out of time for a reply
under Order 25, rule 1 of the High Court Rules. The Plaintiff my also be out
of time for taking out summons for directions. However, it is for the
Plaintiff to do what is necessary to move his case along
the road to
justice. The order of the Court is that-
<
1. the Plaintiffs
application be dismisseh costs.
>
2. Leave to defend is
granted.
F.O. Kabui
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/74.html
