Chow v Maenu'u [2020] SBHC 27; HCSI-CC 144 of 2018 (5 February 2020)

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Case name:	Chow v Maenu’u

Citation:

Date of decision:	5 February 2020

Parties:	Francis Chow v Mostyn Maenu’u Junior

Date of hearing:	4 February 2020

Court file number(s):	144 of 2018

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Kouhota PJ

On appeal from:

Order:	Application dismissed with cost against the defendant/applicant

Representation:	Mr. B Upwe for the Claimant Mr. C Hapa for the Defendant

Catchwords:

Words and phrases:

Legislation cited:	Civil Procedure Rule, r 7.11, 7.13

Cases cited:

The claimant, Mr Francis Chow, brought a category A claim against the defendant, now applicant, seeking judgment against the defendant and his relatives and agents for;

The claim was served on the defendant but he failed to file any defence as required by the Rules. Consequently, the claimant applied for default judgment against the defendant. Default judgment was entered against the defendant on 31st January 2019. Despite the various orders against the defendant, he and his relatives then proceeded and constructed a dwelling house on the claimant's property. Because of this committal proceeding were instituted against the defendant in July 2019. The defendant despite been served with the committal proceeding failed to turn up in court. As a consequence, a warrant of arrest has to be issued against him and he was subsequently been arrested and brought to court. Following enforcement proceeding, an enforcement order was issued against the defendant and perfected on 4th November 2019. On 13 January 2020, the Sheriff of the High Court issued a notice of eviction informing the defendant and his relatives to vacate the premises by 5 pm on 20th January 2020. The defendant and/or his relatives failed to vacate the premises hence the Sheriff of the High Court, on 27th January 2020, has to move in and evict them from the premises.

This application now before the court is an urgent amended application by defendant seeking the following orders;

The applicant in support of his application relied on documents listed 1 to 6 on page 2 of the Amended urgent interlocutory Application filed on 4^th February 2020. The application was brought under Rule 7.11 and rule 7.13 of the SI Civil Procedure Rules 2007. In his sworn statement in support of the application filed on 29/1/2020, Mr Mostyn Maenu’u Jnr alleged that the court was misled by the claimant in that it was not highlighted to the court that the claimant does not legally own the disputed land, that the disputed land is beyond the high water mark and so is regarded as customary land. He also claims the disputed land in accordance with the custom of the traditional owners, namely the Haubata tribe who traditionally owned the seashore and that his family performed a Chupu ceremony according to the Guadalcanal custom.

He also stated that he moved out of the land and only his sisters and their children were living on the disputed land and that as a result of the enforcement order little children were forced to stay out in the cold at night and sun during the day.

I will start by considering the reasons stated by Mr. Maenu’u about the ownership of the land. The things Mr Maenu’u is saying now are matters he should have brought up in court to challenge the claim when it was filed and served on him in early 2018, more than 1 year ago. It is now too late to advance this argument. If you have a right you can not sleep on it. The law does not help people who sleep on their rights.

The court has relied on the evidence of ownership produced in court by the claimant, Mr Chow, when the court gave the default judgment and the subsequent orders that follow. Mr Maenu’u has all the time in the world to challenge the claim before the default judgment was entered against him but he failed to do so, he only has himself to blame.

This application was purportedly brought under rule 7.11 and rule 7.13 of the SI Court Civil Procedure Rules. Chapter 7 of the Solomon Islands Court Civil Procedure Rules deals with interlocutory applications. Since this application was brought as an urgent application, the applicable rule would be rule 7.13. Rule 7.13 states as follows. The court may allow an oral application to be made if;

What does Rule 7.13 intended to protect? I believe the provisions of rule7.13 are purposely to protect persons and property from unlawful interference. In the present case, there is no unlawful interference because the persons and the properties were removed under a lawful order of the court so this rule does not apply to them.

To grant the orders sought would be seen as the court going back on its own decision. The enforcement orders remain on foot as there was no application to set it aside. I also agree with Mr Hapa submission that there is no flaw in the proceedings that warrants granting the orders sought. I am aware that women and children were affected by the execution of the court order and sympathised with them but using the issue of children staying out in the cold of the night and heat of the sun outside the SMI building to support of this application as a matter of urgency and a humanitarian issue seem insincere. In his claim, the claimant, not only seeks orders against the defendant, Mr Maenu’u, but also his relatives living on the premises so any court orders against Mr Maenu’u also apply to them.

Those evicted from the property, I am sure and aware that there was a court order for them to vacate the property but choose to continue to live in defiance of the court orders. I believe they are now staying outside the SIM fence as a show of defiance to the lawful execution of an order of the court more than anything else. As a Solomon Islander, I do not believe these women and children really do not have any place to go. No Solomon islander is homeless or should be homeless. In our culture and custom, there is always relatives or even wantoks somewhere to turn to in such situations. I believe these women and children have a home or relatives to go to, if not in Honiara then in any of the islands or provinces of this country, they are not homeless. I concur with Counsel Hapa that to grant this application would be unraveling the whole legal process that was already completed.

Mr Upwe has submitted that the dispute now is to do with ownership of customary land and that this court has no jurisdiction to deal with the dispute. That is correct but it also means that there is no dispute before this court hence there are no triable issues before this court to enable the court to grant the orders sought.

An interlocutory urgent application is meant to maintain the status quo when a new dispute arises and awaiting the substantive claim to be filed and heard. In the present case, the proceeding was already completed including enforcement proceeding. The is no substantive claim to be filed, the applications which counsel for the defendant/applicant indicated he will file are interlocutory applications. Urgent interim orders are not meant to maintain the status quo for the purposes of filing another interlocutory application. In this respect, there is no substantive claim before the court on which the urgent orders could be based. The dispute as to ownership in custom referred to by the defendant in his sworn statement would be a new dispute but it is not a dispute currently before this court thus the balance of convenience does not arise hence this court does not have the powers to issue the urgent interim orders sought as there is no dispute before this court. Having considered the facts of this case, the materials before this court and the submission of counsels, I conclude that this application must be refused and dismissed with cost against the defendant/applicant.

High Court of Solomon Islands

Chow v Maenu'u [2020] SBHC 27; HCSI-CC 144 of 2018 (5 February 2020)