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Bexter v Glengrow (SI) Company Ltd [2016] SBHC 83; HCSI-CC 86 of 2014 (2 June 2016)

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

Civil Case No. 86 of 2014

BETWEEN:

ROBERT BEXTER
Claimants

AND:

GLENGROW (SI) COMPANY LIMITED
First Defendant

AND:

CATHERLAENA KITU
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant

Date of Ruling: 2nd June 2016

Mr Tagini for Claimants
Mr Wilson Rano for Defendant

RULING ON APPLICATION
FOR SUMMARY JUDGMENT

Maina J:

Introduction

The Claimant applies for summary judgment pursuant to Rules 9.57 of Civil Procedure Rules 2007 (CRC) to be entered against the Defendants for trespass and environmental damages on Lot 23 of LR 515, Parcel no 143-001-15.

Claimant claims that he holds the registered titles of the land and any defence by the Defendant in the case would be dismissed as frivolous and vexatious or an abuse of the court process.

Brief Background

On 8^th April 2014 the Claimant obtained injunctive orders in the High Court against the First and Second Defendant from carrying out operation within Lot 23 of LR 515, Parcel no 143-001-15.

The court also ordered a joint survey team to be conducted by an assessment team which comprises of forestry officer, land surveyor and valuer. And the joint survey team conducted the survey on 4^th – 14^th May 2014.

On 30^th May 2014 the Claimant then filed a Category -A claim seeking:

1. Declaration that the Claimant is the registered title holder of Lot 23 of LR 515, Parcel no 143-001-15 and Second Defendant had not given a grant of profit to the First Defendant of the said Parcel no. 143-001-15.
   
2. The order that the First Defendant pays to the Claimant a sum of SBD$1,355,789.47 (as royalties to waste logs and SBD$4,270,736.83for a total of 1449 logs that have been cut according to the stumps that have been counted or such amount to be assessed by the court.
   
3. He also seeks orders for Defendant to pay costs on relates environmental damages etc.
   

On 18^th June 2014 the Court ordered a joint re-survey by the assessments team which they conducted at Lot 23 of LR 515, Parcel no 143-001-15 on 23^rd June 2014 which the Claimant is the registered title holder/owner.

The First and Second Defendant filed the defence and counter-claim on 24^th July 2014. And on 1^st August 2014 the Claimant filed this application for summary judgment under Rules 9.57 of CRC and inherent jurisdiction of this court.

Issue

The issue is whether or not the application for summary judgment can be granted to the Claimant.

Claimant’s case

The Claimant is saying that he holds the registered titles of the land and did not invite the First Defendant to do any logging on the land. In spite the Defendant filing the Defence and counterclaim the Claimant believes that the Defendants do not have any real prospect of succeeding in this case.

The Claimant being registered owner of the land is not disputed by the Defendants and Claimant uses this argument in the registered titles of the land as the basis of his application for the summary judgment.

Defence’s Case

The Defendant by Mr. King Shou Yien filed a sworn statement on 26^th May 2015 stating the Defendant has an arguable defence that relates to a Contract with Applicant/Claimant to enter his land and carry out logging. The contract raises serious question of facts required to be tested at trial.

It concerns the validity of the contract between the Claimant and Defendant, agreement mutually terminated and by virtue of the agreement the entry would amount to trespass. And it also concerns the Claimant’s entitlements of the proceeds of the logs if felling were carried in pursuant of agreement.

There is also disparity on the reports from the various surveyors with the number of logs logged or hectares logged. If compensation is to be paid, the court needs to properly determine them.

The Law

Rule 9.57 of the CRC provides:

9.57 “The claimant may apply to the court for a summary judgment where the defendant has filed a response or a defence but the Claimant believes that the Defendant does not have any real prospect of defending the Claimant's claim”.

And Faukona J in the case Solomon Islands Home Finance v Jack Kaota & Ethel Kaota Civil Case No. 259 of 2012 discusses or states the belief advocates by R.9.57 in the following terms:

“The belief advocates by R.9.57 must not be perceived as a myth. The Claimant before forming such belief is obliged to seriously consider the materials file by the Defendant. Having considered and measure up the strength of the Defendant’s case as to his own, concluded that the defendant do not have real prospect of defending the claim. This belief depends on individual intellectual capacity and experience.

Knowing one’s own capacity to assess is of significant. It assist the Court and at the same time not unduly wasting of Court’s time. The rule must not be taken for granted to achieve earlier judgment or result, than it is required in the process lead up to trial of the substantive matter”.

The purposes of the summary judgment under Rule 9.57 of the CRC is also to provide an early judgment in a case in which the Defendant has no hope of success and defence he raises will merely have effect of delaying judgment. The rule enables the court to grant summary judgment at an interlocutory judgment stage without the delay and expense of a full trail if it shown that trail is not necessary.

Where an application is made, the task is of the court is to determine whether there ought to be a trial. To defeat the application the defendant does not have to show a good defence. He only needs to show an arguable defence or some other reason why there out to be a trial (Civil Litigation, O’Hare & Hill 2^nd Ed, p. 198). As long as there is an issue for investigation, summary judgment will not be granted (Miles v Bulls 1 QB 258).

In this case, the claim is based on illegal trespass and there is evidence of the Defendant and Claimant has interest or contractual agreement with logging activities on the land. The activities allegedly and prompt by the Defendant does not reflected well from the various surveyors reports and would raise arguments if there is an order for compensation at the stage or with summary judgment.

What seems to be clear is that there is a defence and a counterclaim filed by the Defendant that shows or supported by facts and so they are not frivolous, vexatious or not an abuse of judicial process as proposed or submitted by the Claimant. The Defendant and Claimant’s interest or contractual agreement with logging activities on the land is a matter of fact and law and present debatable questions that would require trial to check on them.

With the circumstance of this case it is my view that the case should go to trial to test those issues and therefore the summary judgment is refused.

ORDERS

1. Application for summary judgment refused.
   
2. Cost is awarded to the Defendant.
   
3. Adjourn for mention on 13^th July 2016.
   

THE COURT

Justice Leonard R Maina
Puisne Judge