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Manase v Anson Freight & Logistics Ltd [2019] SBHC 4; HCSI-CC 451 of 2017 (4 February 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 451 of 2017

THOMAS MANASE
Claimant

V

ANSON FREIGHT & LOGISTICS LIMITED
First Defendant

XIANG LINS (SI) LIMITED
Second Defendant

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 31 January 2019
Date of Ruling: 4 February 2019

Mr. R Dive for the Claimant
Mr. D Nimepo for the Defendants

RULING ON APPLICATION FOR SUMMARY JUGDMENT

Brief Facts

Kouhota PJ; The applicant, Mr Thomas Manase, is the registered owner of the property parcel No. 097-013-149 situated near Nusabaruku Island, Gizo, Western Province. The 1^st Defendant is the owner of Parcel No. 097-013-76 adjacent to the back of the claimant’s property.

The First Defendant on the 25^th February 2016, landed its badge carrying an excavator and other machinery at the entrance of the claimant’s settlement located on Parcel No. 097-013-149. The First Defendant and its agents then using their machines cleared the entrance of the Claimant’s registered land without his knowledge or consent. The Claimant avers that the First Defendant only have a 10 meters authorized access but instead clear the access road more than 10 meters and encroach into his property.

The claim and reliefs sought

The claimant filed a category A claim on 22^nd September 2017, seeking the following reliefs;

1. An order to restrain the First and Second Defendants from causing further damage to Parcel No. 097-013-149.
2. An order against the first and Second Defendants for trespass into registered land of the Claimant within parcel No. 097-013-149 situated near Nusabaruku Island, Gizo, Western Province.
3. An order that the First and Second Defendants pay damages for all the mangrove resources, its ego system and its surrounding habitats that were destroyed from the registered land in parcel No. 097-013-149 by acts of trespass of the First and Second Defendants. (sic)
4. That the First and Second Defendants is liable to pay for its act of trespass into Parcel No. 097-013-149. (sic)
5. Costs.
6. Any other cost the court deems fit.

The Application

The application now before the court is for summary judgment pursuant to rule 9.57, 959 and r.9.60 of the S.I. Court Civil Procedure Rules 2007. It was filed on 29^th August 2018. The applicant is support of the application relied on his sworn statement filed on 10^th September 2018 and the 3^rd Defendant’s defence filed on 2^nd May 2018.

The Law

Applications for Summary Judgment are covered under Chapter 9 of the Solomon Islands Court Civil Procedure Rules 2007. Rules 9.57 states, “the claimant may apply 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 claim.” Rules 9.59 and 9.60 set out the requirements which must be complied with by a claimant applying for summary judgment.

Rule 9.57 in my view, require the claimant to show the defence raised by the defendant will not tip the balance of probabilities in the defendants’ favour. In this respect it is pertinent to examine the facts asserted by the claimant against the defence filed by the defendant.

Assessment of the Facts and the Defence.

The claimant filed a category (A) claim against the 1^st and 2^nd defendants on 22^nd September 2017 and served on the First and Second defendants’ solicitors the same day. The first and second defendants filed their defence on 31^st October 2017. In their defence, the defendants denied that the claimant is entitled to the reliefs sought. The 1^st and 2^nd defendants stated in their defence that there was an approved existing 100 meter access. The 1^st and 2^nd defendants also stated that they never trespass into the land as the area they cleared was well within the 100 meters extension from lot 90 in front of Parcel No. 097-013-149.

Conclusion

Rule 9.66 states that the court must not give Summary Judgment if it is satisfied that there is a real dispute between the parties about a material fact. I had read the claim, the 1^st and 2^nd defendants defence and submission of counsel, I am satisfied there are reasonable and arguable defences in regard to access and trespass which need to be determined at a trial. The application for summary judgment is refused and dismissed. The cost of this application would be cost in the cause.

THE COURT
.....................................
Justice E. Kouhota
Puisne Judge