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Vaebatu v Legubatu [2023] SBHC 21; HCSI-CC 94 of 2015 (31 March 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 94 of 2015

BETWEEN

BENAE VAEBATU
Claimant

AND:

HENDERSON LEGUBATU AND SERAH MAGOVE
First Defendant

AND:

GABRIEL GAVERE
Second Defendant

AND:

ROBERT GINA
Third Defendant

Date of Hearing: 20 October 2021
Date of Ruling: 31 March 2023

Ms. L. Ramo for the Claimant
Mr. J. Seuika for the 1^st, 2^nd and 3^rd Defendant

RULING ON APPLICATION FOR SUMMARY JUDGEMENT

Faukona, (DCJ): A claim in Category A was filed on 20^th March 2015. The main relief sought is an order for trespass and consequent to that the Defendants be permanently restrained from continuous trespassing. A defence was filed on 21^st may 2015.

2. The Claimant alleges that the Defendants had continuously entered his land gasalata customary land, and performed extensive gardening and harvesting of bush materials.
3. In support of his claim for trespass, the Claimant relies on the decision by the Deputy Commissioner for the Western Pacific in Civil action No. 3/50.
4. That decision was delivered on 18^th January 1950. It was in favour of the plaintiff Mr. Talu representing the gave branch of the vuruvasu line.
5. There is no evidence to direct this court as to the relationship of the current parties as to the parties in 1950 case. However, the only fact that created a hint is paragraph 3 of the claim. The last sentence of the paragraph stated, “the Claimant and the Defendants in this present matter are immediate descendants of the parties in civil action No. 3/50”.
6. From those facts, together with the decisions by the Batava Chiefs, Local Court and Western Customary Land Appeal Court which were all in favour the Claimant in the current case.
7. Obviously the Claimant is claiming the decision in 1950 as in favour of his tribe. Besides that, based on that decision he won the litigations he had with the Defendants in chief’s hearing, in the Local Court and in the customary land appeal court.
8. There is no challenge that the Claimant is not the direct descendant of Mr Talu who was a party in the 1950 case.

Application for Summary Judgment.

9. Rule 9.57 which provide for such application, specifically define that the Claimant may apply where the Defendant had filed response or defence (as in this case), but the Claimant thinks the defendant does not have any real prospect of defending the claim.
10. In this case the Claimant rely on chief’s decision, Local Court decision and CLAC decision which decided in favour of his party. The CLAC decision was never appealed and time had concluded that decision was final.
11. The Defendants still contest some irregularity that the starting point of the boundary of gazalata land as define by 1950 case, started from a creek north of vadetaru village. The Defendants further argue that the chiefs’ decision placed the starting point of the boundary differently. It started from the foot of the hills.
12. I learned of that difference as demonstrated by the records. However, should there be any irregularity or difference in names and position, the Defendants were granted opportunity to argue that in the Local Court. They did but still the Local Court made decision in favour the Claimant. They further appealed to CLAC.
13. Eventually the CLAC decided on 26^th February 2021, that the 1950 legal boundary of gazalata land is reaffirmed and is binding on parties. There was no appeal filed thereafter, litigation should end there and then.
14. The Defendants further argue that since the boundary is still under dispute, litigation between the parties is still to be resolved.
15. The none appeal effort to the High Court was never filed and done, and time guaranteed has long gone. In such circumstances it would be unwise and effortless to continue high lightening issues that had been dealt with by the forums specially appointed to deal with customary land ownership.
16. From my perspective, the Defendants continuance in wielding dispute concerning the boundaries of the land should now come to an end. Their chances had been given and they had utilized but they have not succeeded in the chiefs and court hearings.
17. In conclusion I must therefore grant summary judgment against all the Defendants with costs.

Orders:

1. Application for summary judgment granted.
2. Cost of this hearing be paid by the Defendants to the Claimant on standard basis, if not agreed upon.

The Court.
JUSTICE REX FAUKONA.
DEPUTY CHIEF JUSTICE.