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Tausuli v Kikele [2012] SBHC 45; HCSI-CC 334 of 2011 (11 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 334 of 2011.

BETWEEN:

JOSEPH TAUSULI and NIKASIO LOTTO
(for and on behalf of Laukuili tina tribe, West Guadalcanal, Guadalcanal Province).
First Claimants

AND:

MATHEW HENO and KALANI PEROLE
(for and on behalf of Haubata tribe, West Guadalcanal, Guadalcanal Province).
Second Claimants

AND:

ABDON PARAI, JOSEPH KESALE and MEMORAION TANGISIKAVI
(for and on behalf of Kidipale tribe, West
Guadalcanal, Guadalcanal Province).
Third Claimants

AND:

DANIEL KIKILE and JACK HANIGARO
(for and on behalf of Lakuili tribe, West Guadalcanal, Guadalcanal Province).
Defendants.

Date of Hearing: 4th May, 2012.
Date of Ruling: 11th May, 2012.

Mrs M. Bird for the Claimants.
Mr M. Tagini for the Defendants.

RULING ON APPLICATIONS FOR DEFAULT JUDGMENT.

Faukona J: This is a composite application filed on 12th December, 2011 for summary and default judgments, in anticipation of a possibility that the Defendant might file a defence to the actions.

2. At the hearing of this application, on the outset, Ms Bird submits that she will proceed with the application for default judgment and abandoned the application for summary judgment. In that instance she is relying on the sworn statement of Charles Belande and her in relation to the issue of service and searches that was conducted at the High Court.

3. With the last minute withdrawal of one component of the application, often in most cases, require redirection of strategy on submissions by the other party. It's a pity this has happened but has to be accepted. Often at times, parties ambush each other. As a result, the case they present is not the best they hope for. However, this is quite new to me in this jurisdiction. It's like putting your cart before the horse, or more so, counting your eggs before they hatch.

4. I think the Rules specifically and explicitly make distinction between applications for default judgment and application for summary judgment. The two can never complement each other, nor do the Rules encourage that both applications be made at the same time. The basic reason is that when a case is filed with supporting sworn statements, and served on the Defendant, Rule 5.37 expressly required that the Defendant within the time required, must file a defence. Should no defence is filed the claimant should invoke Rule 9.17 and file an application for default judgment. At this stage nothing is ever mentioned or included or even attempt to absorb application for summary judgment into the process.

5. Application for summary judgment can be filed at a later stage when a defence has been filed.

6. The main issue in an application for default judgment is an explanation as to why the Defendant fails to file a defence. In a summary judgment application, the issues are whether there is real prospect of or any part of the claim succeeding, and if there is an arguable case.

7. Mr Tagini who appears on behalf of the Defendants armed with a sworn statement of Selwyn Baokusu filed on the morning of the hearing. He has prepared himself to challenge both applications. He ensures he challenges the statement of claim and the relief sought, as if the application for summary judgment is still on foot.

8. In his submissions he could have been confined to the application for default judgment and should focus on the question of why fail to file a defence as required by Rule 5.37. The question requires simple explanation. Reasons for failure are expected to be given. Because it is a failure against the rule, evidence by way of sworn statement must be given. In this case no reason at all is given by way of evidence.

9. However the sworn statement of Selwyn Baokosu does not in any form explain the reason for not filing a defence. The bulk of it, if not most, refers to the previous civil case No. 431 of 2007.

10. Despite the anomaly it is perceived that the core of this dispute grounded on certain blocks of customary land situated within Savulei Ward 3, West Guadalcanal. At this stage it is quite difficult to verify the boundaries of the lands. The problem that there are two distinctive descriptions to their actual location. However, there are maps attached to the original claim filed on 23 October, 2011, which give some assistance in identifying the disputed lands.

11. The Defendants claim the three blocks of land called Talalu 1, 2 and 3. Their claim derived from various previous determinations to initiate Civil Case No. 431 of 2007 of which they won. The claimants denied those three blocks of land owned by the Defendants. They assert they own various customary lands situated in Vaturanga area between konjuku and jarupega rivers including lands claimed by the Defendants. They said the lands claimed by the Defendants in Civil Case No. 431 of 2007 are situated outside of Vaturanga lao area.

12. Noted from the materials there were two previous chiefs hearing. Whether the proceedings were in respect of the three blocks alone, or part of a general claim that covers other blocks as well with the same boundaries.

13. The first house of chief's determination was made by Sahalu and Savulei House of Chiefs dated 26th June, 1984. The second determination was made by the Savulei House of Chiefs dated 16th September, 2008. The argument here is that the 1984 hearing was outside of the provisions of 1985 Local Court Act which provide that all customary land disputes have to be referred to the Chiefs first.

14. Following the Chiefs determinations there was no reference case made to the appropriate local Court for hearing of the ownership claim. Whilst there is no time limit indicated for such referral, the local Court's jurisdiction still wide open for the parties to access to. By authority of Veno v Jino[1] the aggrieved party should make a reference case to the Local Court accessing section 12(2) of the Local Court Act.

15. On December 3rd 1998, the Kalahaki Timber Limited was advised by the Commissioner of Forest that their licence Tim 2/7 was extended to cover customary lands between Konjuku river to hoilava river, on West Guadalcanal. The Kalahaki Timber Limited then engaged the Organic Earth Limited as its contractor to carry out logging operations in the area covered by the licence, in Savulei Ward 3.

16. Whilst carrying out the operations, the Defendants initiated High Court Civil Case No. 431 of 2007 for trespass and further obtained injunctive orders restraining the Kalahaki Timber Limited and Organic Earth Limited from operating within the lands described as Talalo 1, 2 and 3.

17. Following the restraining orders, furthers orders were made by this Court on 5th September, 2011, initiated by interpleader Summons. In those orders Kalahaki Timber Limited and Organic Earth Limited were to pay the Defendants US$474,230 for damages for conversion of trees, and for environment damages and trespass in the sum of SI $2,959,965.00.

18. After the orders were made it would seem the Claimants have exhausted the legal remedies available to them.

19. It did not end there. The Claimants then filed an amended claim on 3rd November, 2011. Having effected service there was no responses or defence filed by the Defendants within the time required in Rule 5.37.

20. On 21st November, 2011, this matter was called for mention. The Defendant was represented by Mr Tagini who raised the issue relating to abuse of process. Justice D. Chetwynd then directed that a proper application must be filed. If nothing was done then the Defendants will face an application for default judgment.

21. To this date the Defendants or their Solicitor has failed to exercise their rights to file neither a defence nor an application to strike out the claim for being an abuse of process.

22. In an application for default judgment a simple question ought to be answered is why a defence was not filed within the time required? That should be the only question this Court expects to hear. Rather than confining to the reasons for failure, the Counsel for the Defendants have engaged himself in a legal battle that hinges on complex issues. These legal issues have their origins way back since 1984. And as matters progress forward they became more complicated, because logging operation did involve and of course prompted legal battles in Court. Even today the customary land dispute between the parties has not progressed beyond the Chiefs determination. And the continuous conflict between the parties has absorbed into issues created by logging operations.

23. Whilst the opportunity is there to have the issue resolve, none of the parties dare to make a move to have the disputes litigated in a Court of law. It appears that the party's main focus is only on proceeds they gain from logging, but no one has interest to sort out the substantive issue of land ownership.

24. Apart from that Mr Tagini argues reiterating that the statement of claim is frivolous and vexatious because it is carbon copy of the previous one struck out by Chetwynd J. The Claimants cannot use this case to urge the Court to make declaration orders prayed for as it would interfere with Civil Case No. 431 of 2009 of which a determination was in favour of his client. That is notable in relief 6 which directly refer to Civil Case 431 which the Defendants had unjustly enriched and that they are not entitle to the logging proceeds in Talalu lands 1, 2 and 3. Mr Tagini refers to a number of paragraphs in a case of Emco Pacific v Anita Emmett[2]. Paragraphs 18, 20 and 21 seem to advocate the principle that the Court cannot make an order to affect and interfere with another proceedings.

25. Ms Bird in counter submission says that there was no case struck out. In fact there was a direction for filing an amended claim which provided birth for this case.

26. I appreciate Mr Tagini's submissions raising a number of legal issues concerning the statement of claim and relief sought. However, that does not require at all in an application for default judgment. You need only to explain to the Court why you fail to file a defence within required time. That is the only issue this Court is urged to consider and exercise its discretion whether to grant or reject, see Zoreve v Makota [3] and Gaskel v Gaskel[4]

27. Generally a Council will only argue a point or an issue which he has pleaded and particularise. In this case there was no defence filed and would be improper in law for Mr Tagini to argue that the Claim is frivolous and vexatious, and abuse of process. There is no basis for that argument. Could have been better if a defence is filed and the application for summary judgment is still on foot. In any event it is no use either. His major contention is that if the orders sought in the relief are granted, they will affect and interfere with other proceedings. Indeed that is a legal point which I concede but does not change the position in law.

28. In this case there was no defence filed which clearly show that no pleadings had been done. Therefore the Defence cannot argue any issue whether in the nature of facts or law. He could have done so if he has filed a defence.

29. Having said that, and having heard the submissions and read all the materials, this case is indeed has complex legal issues related to customary ownership of land including logging operations on the those lands which made it more complicated. For those to be sorted out I feel the proper processes must be followed and pleading must be done. Furthermore, I also noted that all issues the Counsels canvassed are arguable which ought to be properly pleaded.

30. In the light of that I therefore refuse the application. My reason for refusing the application is not because I am convinced with what the Counsel for the Defendants says. But an irregularity noted at the initial filing of this composite application which provide for by two separate rules, under two distinctive processes, at two separate stages of the civil process. The abandonment of one application does not cure the mischief either. In fact it further carries the Counsel for the Defendants away where his indulgent seem inappropriate and out of context.

31. By implicitly Counsels are fully versed, that this Court has broader discretionary power to exercise. And I must do so in this case in in the best interest of justice, and to allow proper processes is followed. I take heed of the alternative submission suggested by Ms Bird. Perhaps that is the best option to resort to. To decide otherwise will be time consuming and expensive considering the process that may commence under Rule 9.52.

Orders.

1. Application for default judgment refused.

2. Case is adjourned to next motion day (17th May 2012) for further directions.

3. Cost is in the cause.

The Court.

^[1] Appeal Case No 2 of 2004.
^[2]Appeal Case No. 45 of 2011, 23^rd March, 2012.
^[3] Civil Case No. 138 of 1994.
^[4] (2011) SBHC 104; HCSI –CC 403 of 2008 (5^th October 2011)