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Zinihite v Solomon Islands Ports Authority [2022] SBCA 13; SICOA-CAC 11 of 2020 (12 August 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The present Appellants, Billy Zinihite, Sheally Zinihite, Milton Talasasa & Others, representing themselves and members of the Kazakuru Left Hand Primary Right Owners were claimants in an action filed 25^th September 2017 against the Solomon Islands Ports Authority (SIPA). SIPA is now the respondent to this appeal.
2. The appellants brought their claim in trespass. The respondent had entered into an area of land known as Rakutu Hill which, according to the appellants, falls within Kazakuru Left Hand land, for the purposes of extracting gravel. That operation began in June 2017 and has long since ceased.
3. The respondents do not take issue with the fact of entering into this land and extracting gravel but submit that this was done with the permission of a representative of the landowners with whom negotiations had taken place. The representative, according to the respondents was one Milton Aqorau.
4. By February 2018 after no defence had been filed by the respondent, the appellants sought and obtained a judgment in default. An application was thereafter made, on 8^th March 2019 for the assessment of damages. On 23^rd April 2019, the respondent applied for the setting aside of the default judgment.
5. It is against the decision made on the application to set aside the default judgment that this appeal and cross appeal are made. No decision has been made on the assessment of damages given the order made in the setting aside application. That matter remains to be determined subject to any decision made on the default judgment.
6. The order made on 27^th March 2020 following a hearing on 9^th December 2019 are now set out for convenience: -
   1. “Application to set aside is stayed pending joining of Mr. Aqorau as a defendant party. A proper application be made to join.
   2. This matter is permanently stayed.
   3. Claimants, defendant and Mr. Aqorau to enter into meaningful negotiations in regards to the gravel already extracted from the disputed land.
   4. The terms of any resulting agreement shall be brought to the court for viewing so as to reinstate this proceeding.
   5. Parties must enter into negotiations in “good faith,” Gravel extracted may be for public use.”
7. As might be clear, those orders cannot be maintained as they are mutually inconsistent and could not effectively progress this matter as the trial judge perhaps intended. Whilst the intention behind the order is, perhaps, admirable, nothing could be achieved by following its terms. The application to set aside is stayed pending an application to join a third party, yet no provision is made for removal of the stay in the event that no application is made for joinder. In order (ii) the claim itself appears to be the subject of a permanent stay. What step, if any, could be taken by any party given that order? The next order is based on the assumption that an order for joinder has been made, even though the matter has been stayed and no such order could therefore be made, and only on an agreement between the parties could the court be approached to lift the stay.
8. This appeal, therefore, whether brought by the appellant or the respondent, must succeed give the terms of the order made. The only remaining question is what order should replace it.
9. The respondent asserts that it entered into an agreement with Milton Aqorau for the extraction of gravel after he held himself out to represent the custom owners. Without him as a party to these proceedings, the respondent can have no viable defence to the claim for trespass. Yet it took no step to seek to join him as a party when responding to the claim. It appears that the respondent asked Mr Aqorau to negotiate with the claimants himself to reach a settlement that would resolve the claim.
10. That unsurprisingly did not happen. Whilst there was nothing wrong to ask Mr Aqorau to seek to settle the claim with the claimants, at the same time it was incumbent on the respondent to respond to the claim in accordance with the Solomon Islands Courts Civil Procedure Rules. It was insufficient to rely upon Mr Aqorau and ignore the pending civil claim which had been served on it.
11. It was more than one year after the default judgment had been entered and also after the successful party sought an assessment of damages that the respondent first took any step to seek an order setting aside this default judgment.
12. As the trial judge dealing with the application to set aside himself found, “there is no acceptable explanation for the delay. Defendant is a multi-million dollar company. And it must take matters of court proceedings against it, seriously.”
13. Aside from the question of delay, a court when considering the setting aside of a default judgment should consider the merit of any proposed defence. The respondent alone cannot maintain a defence but must rely upon the intervention of others who claim to be custom landowners of the land in question. That, in turn, brings into play earlier decisions made by the appropriate authorities on the question of customary ownership.
14. Kazakuru land has been elsewhere described as the most litigated piece of land in the Solomon Islands. Following a 1970 decision declaring Edwin Biku the landowner, a successful appeal in 1971 in Native Land Appeal Case No 9 of 1971 was followed by various decision in, inter alia, High Court Land Appeal Case 23 of 1984, the High Court case reported at [2013] SBHC 149 and Court of Appeal case Talasasa v Bea [2016] SBCA 3. The decision concerning this land made over the years are most helpfully contained in the appellants/cross respondents’ book of authorities on this appeal.
15. As the appellant submits on this appeal, the evidence of Milton Aqorau will not assist them even were he joined as a party to these proceedings at this late stage. Rakutu Hill is still within Kazakuru Left Hand Land.
16. We therefore conclude, on the question of merit to the proposed defence, and the prospects of success, are not such that an order should be made setting aside the default judgment. Too much time was allowed to pass after the default judgment was entered for which no acceptable explanation has been offered, no step was taken until after the application for assessment of damages was filed and the prospects of success of the defence are themselves limited.
17. In the event we conclude that the default judgment should not be set aside. The respondent to this appeal made a tactical decision not to defend but rely on a process outside of the court process and that tactical decision was made in error.
18. The orders made on this appeal and cross appeal are that, to the extent that it is necessary, leave is granted for both the appeal and cross appeal, leave is granted to file the additional evidence as requested and the appeal is allowed. The cross appeal is dismissed. The default judgment will stand, and the matter is referred to the High Court for the assessment of damages. Costs on and incidental to this appeal will be paid by the respondent company to the appellants on a standard basis such costs to be agreed or assessed.

Goldsbrough (P)
Palmer (CJ)
Hansen (JA)