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Soltuna Ltd v Mamae [2024] SBHC 119; HCSI-CC 79 of 2024 (25 September 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 79 of 2024

BETWEEN

SOLTUNA LIMITED
Claimant

AND:

EDDIE MAMAE
(Including persons claiming right of occupation through the Defendant)
Defendant

Date of Hearing: 29 August 2024
Date of Ruling: 25 September 2024

Mr. G Muaki for the Claimant
Mr M Hauirae for the Defendant

RULING ON APPLICATION FOR SUMMARY JUDGMENT AND DISMISSAL OF COUNTERCLAIM

AULANGA; PJ:

1. The Claimant applies for summary judgment and dismissal of counterclaim with consequential orders in the reliefs sought in the application filed on 10^th May 2024.
2. The Claimant sues its former employee, the Defendant, for immediate possession of its residential property House No. 68 at Noro in the Western Province; damages for trespass to land limited to $50,000 or alternatively, for mesne profit to be assessed at open market monthly rental of $4,500 backdated to 25^th November 2022 to date of eviction order, and for costs.
3. The Defendant was employed as a mechanic operator for the Claimant. He was provided with an accommodation as part of his employment entitlement. The accommodation was described as residence House No. 68 at Noro in the Western Province. His wife and daughter were also employees of the Claimant and they all lived together in the same property. There is no issue that the accommodation was provided to the Defendant by virtue of his employment and position, and not for his wife and daughter.
4. On 14^th October 2022, the Defendant was formally terminated from employment. He was given notice to vacate the residential property. He refused to do so. He was then given extension of time to vacate the property by 25^th November 2022. His right to occupy the property had ceased as of that date.
5. On 6^th December 2022, the Defendant lodged an unfair dismissal claim at the Trade Dispute Panel pursuant to the Unfair Dismissal Act. The claim is for compensation award for loss of employment, and not for reengagement or reemployment.
6. On 10^th November 2023, the Claimant issued the Defendant a final notice to vacate the property, advising him of his illegal occupation of the property and indication of imminent forced eviction from the property to be carried out by the authorities.
7. The Defendant refused to comply and relied on two main grounds. First, his termination of employment was not proper and that his claim for unfair dismissal was still pending determination at the Trade Dispute Panel. Second, his wife and daughter were employed by the Claimant and therefore, he should not vacate the house.
8. At the outset, the unfair dismissal matter is still pending determination at the Trade Dispute Panel. It only involves the issue for compensation award and not for re-engagement of employment. As such, this means that even if the unfair dismissal matter is decided in his favour, he will only be entitled to an award of compensation for unfair dismissal of employment and not for reinstatement.
9. Premised on the application, Rule 9.57 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“Rule”) provides that the Claimant may apply for summary judgment where the Defendant has filed a response or defence but the Claimant believes the Defendant does not have any real prospect of defending the claim. The Claimant has provided a sworn statement to verify the facts in the claim as the basis of its belief that there is no viable defence to the claim as required by Rule 9.59.
10. Clearly, the main defence relied upon by the Defendant are of twofold. First, the referral of the matter for unfair dismissal of his employment to the Trade Dispute Panel and second, his wife and daughter are employees of the Claimant and by implication, they are entitled for that accommodation.
11. The defence raised by the Defendant in my view does not have any prospect of success for a number of obvious reasons. First, the defence of unfair dismissal is not a defence for immediate possession or occupation of the property against the order for eviction as sought by the Claimant. Second, the defence of unfair dismissal is not a defence that should be tried or enquired into by this Court. This Court lacks jurisdiction to do so. Unless it is a defence that relates to wrongful dismissal of employment, this Court is precluded by section 4 of the Unfair Dismissal Act to enquire into any complaint or claim of unfair dismissal of employment, except upon appeal. Third, even if the defence of unfair dismissal might be relevant for stay of proceeding pending the outcome of the dispute at the Trade Dispute Panel, it is clear that the claim at the Trade Dispute Panel only deals with compensation award for loss of employment, and not for reinstatement. Therefore, I do not see any relevance or even any success of that defence that could negate his liability for the continued wrongful occupation of the property. His right that would entitle him to occupy the property has already been ceased by termination of his employment. Fourth, the property the subject of this proceeding, is an entitlement given to him by virtue of his employment and position. There is no evidence to suggest that it is a joint entitlement given to his wife and daughter as employees of the Claimant. The Claimant would have said so if the entitlement to the house also applies to his wife and daughter. Hence, to raise the defence of the employment of his wife and daughter who are not parties to this proceeding as the basis for the occupancy of the property, is unmeritorious. That line of defence is clearly bound to fail.
12. In Solomon Islands Water Authority v Siosi [2005] SBHC 42, the Court when dealing with similar issue highlighted [page 3],
    • “The Defendant ceased being an employee of the Plaintiff on or about 19^th October 2001. His rights to occupy the property ceased on 15^th May 2002. He has been occupying the property illegally since 15^th May 2002. He has deprived the Plaintiff’ from using the property to accommodate its pump operator. The Defendant occupied the property because he claimed that the Plaintiff has made shortfalls in his salary and redundancy payments. These claims do not constitute rights that would entitle a person to occupy the property. A person can only occupy the property if he is an employee of the Plaintiff. The Defendant has ceased to be such a person on or about 19^th October 2001, when he was made redundant.”
13. Exhibit “MZ-2” of Mezach Zesapa sworn statement filed on 28^th February 2024 is a letter containing the following representations:
    • “Date: 25^th Oct 2022
    • Dear Sir,
    • ONE MONTH’S NOTICE
    • This letter serves to inform you that the company has given you a One Month Notice to vacate the company house you are residing in. This Notice is effective from 25^th October 2022 to 25^th November 2022. The Housing Committee agrees, and resolves based on the following reasons:
    • The Company will not pay any outstanding bills that may incur at this present time on cash power & water bills.
    • The house will be allocated to the next employee
    • The property team will assess the house for repair & maintenance
    • All housing inventories/fittings remain the company, and the housing committee has the right to retrieve all its decision.
    • Therefore, this letter serves to officially inform you that you must leave/vacate the company house by 25^th November 2022.
    • Finally, the housing committee would like to thank you for your cooperation and time with the company for the past years and wish you in your future endeavours.
    • Should you fail to listen to and adhere to this Notice, the committee has the right to remove you from the company house or can bring this matter further to management for further proceedings under the housing policy.
    • Thank you for your understanding in due course.
    • Yours sincerely,
    • Veronica Nonga
    • For: Housing Moderator
    • SolTuna Ltd.”
14. The letter conveys clearly the Defendant’s right to occupy the property had ceased on 25^th November 2022. Therefore, his continued occupation of the property thereafter, is illegal and amounts to trespass to the property. As the claim pending at the Trade Dispute Panel is for compensation for loss of employment, and not for reengagement, in my view, the defence filed by the Defendant does not have any real prospect of success to the claim.
15. I have also looked at the counterclaim. It is based on a claim for loss of employment as a result of being unfairly dismissed from employment pursuant to the Unfair Dismissal Act. The counterclaim also includes a claim by his wife regarding outstanding housing allowance due to her since 2017.
16. I have made it clear in this ruling that a claim under the Unfair Dismissal Act is a statutory claim with a prescribed process and forum to hear the dispute. For the reasons stated earlier regarding the lack of jurisdiction of this Court to try any matter arising under section 4 of the Unfair Dismissal Act, the counterclaim must also be dismissed. Any employment claim (not appeal) founded under the Unfair Dismissal Act, is a matter to be tried and decided by the Trade Dispute Panel as established by statute and not the High Court. This is well settled law both in statute and case laws. For example, in King v Gold Ridge Mining Limited [2009] SBHC 16, Cameron J stated [at para 17-18]:
    • “17 This leaves for consideration whether the claimant may be able to assert he was ‘unfairly dismissed’, though this has not been pleaded or relied upon by the claimant. Under Solomon Islands law, a person who wishes to pursue a claim of unfair dismissal must file an unfair dismissal complaint with the Trade Disputes Panel (Unfair Dismissal Act). This is a statutory claim, and as stated in Halsbury’s Laws of England, 4th edition, Vol. 16(1B) para. 697, it is separate and distinct from the common law claim for wrongful dismissal.
    • 18 This Court has no jurisdiction at first instance to entertain a claim of unfair dismissal (though there are limited rights to appeal a decision of the Trade Disputes Panel). A complaint of unfair dismissal can only be pursued in the first instance by presenting a complaint to the Trade Disputes Panel under the Unfair Dismissal Act.”
17. For the reasons held, this aspect of the counterclaim must be dismissed under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for an abuse of the Court’s process.
18. Another serious defect is the Defendant’s counterclaim for his wife’s unpaid outstanding housing allowance due to her since 2017. Unfortunately, his wife is not a party to this proceeding. For reasons unknown, this was pleaded in the counterclaim. For that reason, I do not think there is any legal basis available to sustain that aspect of counterclaim. If there is any, then this could be a subject of a separate proceeding altogether. I find there is no cause of action to this counterclaim.
19. The Defendant raises an issue regarding the intrusion into their constitutional rights to the peaceful and uninterrupted occupation of the property. I do not think there is any merit in that argument considering that he does not own the property, coupled with the fact that he and his family had been in illegal occupation of the property after 25^th November 2022. Therefore, I do not see what constitutional rights said to have been infringed that would require the Court to preserve the matter for proper investigation at trial.
20. I have considered all the pleadings in this proceeding and accordingly, the application to grant summary judgment and for dismissal of the counterclaim is granted. The Claimant shall have immediate possession of property House No. 68 at Noro, SolTuna based residence occupied by the Defendant and his family forthwith. The Defendant is ordered to pay damages to the Claimant in the sum of $50,000 as a result of trespassing into the property House No. 68 at Noro in the Western Province. The relief for mesne profit for monthly rental of $4,500 backdated to 25^th November 2022 to date of eviction order, as alternative relief to trespass, is refused since the order for trespass has already been considered and accepted.
21. The counterclaim is dismissed accordingly pursuant to rule 9.75 (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for disclosing no cause of action and for an abuse of the Court’s process.
22. Cost of this proceeding is be paid by the Defendant to the Claimant on standard basis.

Orders of the Court

1. The application to grant summary judgment and for dismissal of the counterclaim is granted.
2. The Claimant shall have immediate possession of property House No. 68 at Noro, SolTuna based residence occupied by the Defendant and his family forthwith.
3. The Defendant is ordered to pay damages to the Claimant in the sum of $50,000 as a result of trespassing into the property House No. 68 at Noro in the Western Province.
4. Dismissed the counterclaim pursuant to rule 9.75 (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for disclosing no cause of action and for an abuse of the Court’s process.
5. Cost of this proceeding is be paid by the Defendant to the Claimant on standard basis.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE