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Lone v Solomon Telekom Co Ltd [2017] SBHC 67; HCSI-CC 353 of 2015 (15 August 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 353 of 2015

BETWEEN: BILLY LONE - Claimant

AND: SOLOMON TELEKOM COMPANY LIMITED - Defendant


Date of Ruling: 15^th August 2017

14. Laurere for the Claimant

L. Puhimana for the Defendant

RULING

Maina PJ:

1. Introduction
   

This is a case of trespass and damage and a Default Judgment was entered against the Defendant for failing to file defence. From that Default Judgment, the parties contacted valuations processes and filed reports and documents to the court for the assessment of the damages.

A hearing was conducted for the assessment of damages and oral evidences, submissions, documents and valuation reports were presented for consideration by the court.

2. Brief Background
   

On 24^th July 2015 the Claimant filed a claim of trespass and damage against the Defendant for erecting a tower on PE Parcel no. 135-003-5 Lot 429 at Takwa, Malaita Province.

Defendant did not file any defence in pursuant to Rule 19.45 of the Civil Procedure Rules and a Default Judgment was entered against the Defendant.

On 26^th November 2015 the Claimant filed a sworn statement to support his claim and exhibited the Perpetual Estate Register “BL2”.

Counsel Laurere for the Claimant on 26^th November 2015 stated that no defence was filed by the Defendant. And also on 26^th November 2015 the Claimant filed an application for Default Judgment under Rule 19.45 CPC Rules 2007.

A Default Judgment for failing to file the defence was entered against the Defendant and perfected on 15^th April 2016.

On 29^th February 2016 the Counsel for the Defendant filed sworn statement that discloses the copies of documents stating the acts, activities occurred on the land by them and various people who have interest on the land. The statement and copies of the documents were also served on the Claimant.

At the assessment hearing on 1^st February 2017 counsel for the Defendant informed the court that some people have also imposed caveat on the land.

3. The Claimant’s case for the assessment of damages
   

The Claimant relied on his own sworn statements filed on 26^th November 2015 and Land Valuer Mr David Junior Oli’s oral evidence. Mr Oli also confirmed his sworn statement and his report on the valuation for assessment of damage filed with the court. His report endorsed SBD$3,770,000.00 for the value of the damage by the defendant.

4. Defendant’s case for the assessment of damages
   

Defendant relied on the sworn statements filed to assist the court in the assessment of damages on the land.

Counsel for Defendant put Wickly Faga, Assistant Company lawyer gave evidence on oath and orally confirmed his sworn statement filed on 29^th February 2016 and 3^rd May 2016. His sworn statement has the documents relates to this land in dispute and in particular exhibits as MOU between STCL and Ferataá Trustees dated 25^th June 2012; MOU between Takwa Parish and STCL dated 2012; Letter dated 29^th June 2012 Dwane Tigulu Lawyer to STCL – Appeal to the High Court from CLAC – Takwa Customary Land – HC/CC no. 497 of 2011; HC/CC no. 497 of 2011 Judgment dated 23^rd August 2013 and others.
And most notably the recent Perpetual Estate Parcel no. 135-003-5, Lot 429 records from the Register of Title.

And also Roddie Oti to confirm his sworn statement and the Defendant had been paying rental costs to Auki Diocese and Feratai Tribe Trust Board for the land that is subject to this case.

5. The Court
   

There are series of documents presented to the court by the Defendant’s witnesses for the purpose of assessing damages. They reveals interesting some facts or evidences that needs to be determine first before the assessment of the damages. It relates to the filing of the claim and the default judgment as or when the registered title shows that the Claimant was not vested the title of the land when he filed the claim to the court. This is legal issue that just been disclosed at the process of the assessment for damages.

The sworn statement of the Claimant himself filed on 26^th November 2015 in particular the exhibit on Perpetual Estate Register “BL2” stated the Claimant inclusion as joint owner was later on 28^th October 2015.

The Claimant filed the claim against the Defendant on 24^th July 2015 on the basis that he is among the joint owners Perpetual Estate Parcel no. 135-003-5, Lot 429. However the Register of Title (PE) on this land shows that he was made as joint owner later on 28^th October 2015. This is exactly or shown in the Register of title the Claimant had exhibited in his own sworn statement.

The statement of the case for the claim filed on 24^th July 2015 consists or appears in the following terms:

“Statement of the case

1. The Claimant is the registered owner of Takwa Landon Malaita Perpetual Estate Parcel no. 135-003-5, Lot 429. (herein the land)
   
2. In or about the 25^th June 2012, the Defendant entered the Claimant’s land (Perpetual Estate Parcel no. 135-003-5, Lot 429) and constructed its Tower on the Claimant’s land.
   
3. There was neither negotiation made nor consent granted by the Claimant to the Defendant for the Defendant to enter and construct its tower on the Claimant’s land
   
   4. The Claimant seeks the reliefs sought in the claim.”
      

The Statement “1” clearly shows the Claimant’s claim filed on 24^th July 2015 is on the basis or standing that he is the registered owner of Takwa Landon Malaita Perpetual Estate Parcel no. 135-003-5, Lot 429. But he did not acquire that until later on 28^th October 2015.

With that the Claimant appears to have no basis when he filed the claim or the inclusion of the Claimant as joint owners that was obtained by him was later on 28^th October 2015 by the Land record Reference Application no. 1398/15.

The evidences with documents disclosed by both parties for the purpose for assessment appears to establish difficulty to proceed with the assessment of damages, although a default judgment was entered against the defendant. Noted the judgment was entered on the basis or reason of not filing a defence.

With the document disclosed it is also very clear that there are issues that require the court to determine in the trial. Otherwise for this case as it now the Claimant no basis or standing for the claim.

Among the issues is the basis of the claim or when the Claimant filed the claim, he was not a registered owner of the Perpetual Estate Parcel no. 135-003-5 as he was joint as owner later or after the claim filed was with the court. He used or relied on that as basis for his claim. There is also the HC/CC no. 497 of 2011 Judgment that referred by the CLAC for re-hearing concerning the Takwa Customary land purportedly includes this land. For the question of being verified and so on has not been decided by the court or for the purpose of this case.

It is my view that the assessment of damages cannot be preceded in this circumstance but to have the case with issues determine in the trial proper. While the rules are there for purposes as default judgment or summary judgment they cannot be used without legal basis or within the bound of the statutes and rules otherwise justice is not done.

On that basis the assessment of damages is be discontinued and default judgment entered and perfected on 15^th April 2016 is to be set aside and normal process continues for a proper trial in the case.

ORDERS

1. Assessment of damages is discontinued and set aside;
   
2. Default Judgment perfected on 15^th April 2016 is set aside;
   
3. Defendant to file defence within 14 days;
   
4. Matter for mention on 30^th August 2017 and
   
5. Cost in the cause
   

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge