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Tan Sri Marine Product Ltd v Solomon Imports and Export's Ltd [2018] SBCA 16; SICOA-CAC 22 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. This is an appeal against the decision of the High Court at Honiara on 13^th June 2018 entering summary judgement in favour of the Respondent as follows:
   1. Granting early summary judgment to the Respondents for trespass.
   2. Damages to be separately assessed.
   3. Cost to be dealt with at assessment of damages hearing.

Appeal grounds

2. The specific grounds of appeal were:
   1. The learned Judge erred in law when he adjudged that the Appellant had trespassed onto the Respondent’s land when there is triable issue of the usage and ownership of land.
   2. The learned Judge erred in fact and law when he adjudged trespass by the Appellant when the Respondent’s title has been prevented or contested by various litigation cases in this court in terms of registration of land including sea in Parcel No. 192-010-262.
   3. The learned Judge erred in law when he adjudged trespass by the Appellants to the Respondent’s land Parcel No. 192-010-262 (sic) when in fact the title of the Respondent has been de-registered or set aside by an Application to set aside consent judgment in civil case No. 102 of 2014 on 16^th April 2018 and that trespass in registered land can only be claimed when someone has possession of or title to it.

Discussion

3. Before us the matter was presented on the basis:
   1. That the facts were not suitable for summary judgment.
   2. There was a realistic prospect that there was in fact:
      • (i) No clear evidence of trespass when the Respondent’s title has been prevented or contested by various litigation cases in this court in terms of registration of land including sea in Parcel No. 192-010-262; and
      • (ii) That the Respondent’s land Parcel No. 192-010-262 has been de-registered or set aside in a consent judgment in Civil Case No. 102 of 2014 on 16^th April 2018; and
3. There was triable issues on the usage and ownership of the land.
4. There is no real argument in this case about the rules which are applicable to summary judgment. They are set out in rules 9.57 to 9.66 of the Civil Procedures Rules No. of 2007. Rule 9.64 provides that if the court is satisfied that:
   • (a) The defendant has no arguable defence to the claim or part of the claim or that there is no real prospect of the claim succeeding; and
   • (b) There is no need for a trial of the claim or part of the claim; the court may:
   • (c) Give judgment for the application; and Rule 9.66 provides that the court must not give judgment if it is satisfied that there is a real dispute between the parties about a material fact.
5. The issue in this case is not about the test to apply in a summary judgment. The test has been applied but it has been misapplied in this case.
6. The Respondent contended that the test applied by the Judge in the court below is the correct test and it has been correctly applied in this case.
7. On the materials before us including two judgments of the High Court in HC-SI CC No. 102 of 2014 and HC-SI CC No. 521 of 2016 dealing or involving the same land parcel title No. 192-010-262, the issue of trespass to land and extended to the sea are very much alive and constitute real serious issues to be substantively determined at trial but that they cannot just be dealt with through summary judgment. It is beyond us that a summary judgment can be issued in such circumstances.
8. These points determine each and all grounds of appeal individually and together. These grounds of appeal are accepted by us and are successful.

Disposition

1. The appeal is allowed.
2. The judgment of the High Court on the summary judgment dated 13 June 2018, is set aside;
3. The appellants is awarded costs in this appeal and such costs are to agreed or assessed on the standard basis.

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Goldsbrough President
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Ward JA
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Lunabek JA