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Pellie v Tenapiko [2025] SBHC 29; HCSI-CC 178 of 2023 (13 February 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 178 of 2023

BETWEEN

WILLIAM PELLIE
(Representing the members of the Vavae Tribe of Vangunu Islands, Marovo Lagoon, Western Province)
Claimant

AND;

REYNOLD TENAPIKO
(Representing himself and his family)
Defendant

Date of Hearing: On the Papers
Date of Ruling: 13 February 2025

Counsels
No Appearance for the Claimant
Mr S Weago for the Defendant

RULING ON APPLICATION FOR DEFAULT JUDGMENT AND ON FOR APPLICATION TO STRIKE OUT

Background

1. On 25 April 2023 the Claimant filed the claim against the Defendant. The Claimant is shown as representing the members of Vavae Tribe of Vangunu Island, Marovo Lagoon in Western Province.
2. The claim seeks an order for vacant possession of a portion of land within Gae customary land situated near Batuna registered land, Marovo Lagoon. It also seeks a permanent injunction against the Defendant, his family, relatives, agents, servants or invitees from entering, occupying and/or developing that land. A further order is sought against those same persons to dismantle any structure they have erected on the land and to restore the land to its original condition or the same condition as it was before the defendant entered the land.
3. The claim seeks a direction for the RSIPF to enforce the orders they have sought. Finally it seeks an order for damages and costs.
4. The Claimant has alleged that the claim and a copy of the Claimant’s sworn statement in support of the claim were served on the Defendant by sending them in an envelope via MV Marina to Vangunu Island in Marovo Lagoon. It is then alleged that the documentation was delivered by the headmaster of Kokete Primary School to the brother of the Defendant as the Defendant was not present at that time. The evidence is set out in the sworn statement of Patrick Raerora who is a solicitor working at the law firm acting for the Claimant.
5. The Defence was filed on 30 April 2024. On 10 July 2023 the Claimant filed an application for default judgment relying on the sworn statement of Patrick Raerora and alleging the claim was served on 30 April 2023 and that the Defendant has failed to file a response or a defence within the time required by rule 5.37 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
6. The application is opposed. On 18 July 2023 the Defendant filed an application to strike out the claim. The case came before the Court for a mention hearing on 25 August 2023. Counsel for both parties were present and were directed to confer and file agreed draft directions regarding the two applications. None have been filed.
7. By 18 September 2024 no steps had been taken. The Registry then gave notice of a mention hearing on 3 October 2024. On that date counsel for the Defendant appeared but there was no appearance on behalf of the Claimant. At the mention hearing the two applications were listed to be heard on 18 October 2024.
8. By 18 October 2024 the Claimant had still filed nothing further. Counsel for the Defendant was ill. The fixture was vacated and a further mention was held on 24 October 2024. Again notice of the mention hearing was provided by the Court but there was no appearance by or on behalf of the Claimant. The Court then ordered that by 31 October 2024 the Claimant is to file evidence of his authority to act in terms of Rule 3.42 of the Rules. Secondly at the request of counsel for the Defendant the Court ordered that both applications would be dealt with on the papers unless either counsel wished to be heard in which case they were to notify my associate by close of business on 31 October 2024.
9. The Court ordered both applicants to file and serve their submissions by close of business on 8 November 2024 and that each respondent may file submissions in reply by 15 November 2024.
10. The Claimant did not provide evidence of his authority to act and as at the date of this ruling has still not done so. Neither party filed submissions as ordered. Counsel for the Defendant has filed submissions but not until 19 November 2024.
11. The Court has allowed further time for submissions to be filed but none have been received other than those filed by the Defendant on 19 November 2024. The failure to comply with the Court orders has not been explained. The Court is aware that former counsel for the Claimant is now a Member of Parliament but the Claimant’s address for service remains unchanged.

Application for default judgment.

12. Rule 6.4 of the Rules provides that a sealed copy of the claim and response form referred to in rule 5.5 must be served on the defendant personally except if the Court has made an order for substituted service in accordance with rule 6.33 or has ordered that the claim may be served in another way. Neither of those two exceptions apply in the present case. Rule 6.29 defines personal service as either giving a copy to the individual or if the individual does not accept the document by putting it down in the person’s presence and telling the person what it is.
13. The evidence of service has been given by a solicitor named Patrick Raerora. The admissible part of his sworn statement was that a copy of the Claimant’s sworn statement and the claim were given to the Claimant with instructions for service of the claim. The rest of the sworn statement contains hearsay evidence to the effect that personal service was not effected on the Defendant. The envelope containing the claim and the sworn statement were said to have been passed to the Claimant’s nephew who is a headmaster at Kokete Primary School. He is said to have given them to the brother of the Defendant. There is no admissible evidence of this but even if there had been such evidence it could not comply with the requirements of rule 6.4.
14. There is no evidence of a sealed copy of the claim being served on anyone. There is no evidence of a response form being served on anyone. Rule 6.4 requires both to be done. Evidence subsequently filed on behalf of the defence and consistent with the sworn statement of Patrick Raerora is that the Defendant was not even in Marovo when the Claimant is said to have effected personal service. The envelope was said to have been left for the Defendant which he received on 9 May 2024.
15. In order to succeed in a claim for default judgment a Claimant may apply under rule 9.17. That rule provides:
    • “9.17 If a defendant:
    • (a) does not file and serve either a response or a defence within the time required in rule 5.37; or 55
    • (b) files a response within that time but does not file and serve a defence within the time required in rule 5.37;
    • (c) Then the claimant may file a sworn statement (a ‘proof of service’) that the claim and response form was served on the defendant as required by Chapter 6; and
    • (d) may apply to the court for default judgment to be entered under this Chapter against the defendant; and
    • (e) may carry on the proceeding against any other party to the proceeding.”
16. Rule 5.37(a)-(e) sets out the time for filing a response and a defence. It provides:
    • “5.37 The following documents must be filed within the following times:
    • (a) if the claim was served on the defendant within 20km by public road of the main Post Office of Honiara or of the main Post Office in a provincial capital the defendant’s response must be filed and served within 14 days of the date of service of the claim, however a response need not be filed if the defendant’s defence was filed within this time;
    • (b) if the claim was served on the defendant more than 20km from the main Post Office of Honiara and more than 20km by public road from the main Post Office in any provincial capital the defendant’s response must be filed and served within 28 days of the date of service of the claim, however a response need not be filed if the defendant’s defence was filed within this time;
    • (c) if the claim was served on the defendant within 20km by public road of the main Post Office of Honiara or of the main Post Office in a provincial capital the defence must be filed and served within 28 days of the date of service of the claim;
    • (d) if the claim was served on the defendant more than 20km by public road from the main Post Office of Honiara and more than 20km by public road from the main Post Office in any provincial capital the defence must be filed and served within 42 days of the date of service of the claim;
    • (e) the claimant’s reply must be filled and served within 14 days after the date of service of the defence;”
17. As there is no evidence that Claimant has served a sealed copy of the claim nor a response form on the Defendant there has been no requirement for the Defendant to file anything at all. The application is totally inappropriate and it is a mystery how a solicitor could file the sworn statement of service in the form that he did and seek to rely on it for the application for judgment to be entered by default. The application should not have been filed and must be dismissed.
18. As set out above for a claim to be served on a defendant personally. Rule 6.5 requires that such service must be undertaken within three months from the date it was filed. The effect of failing to serve the claim as required within three months is provided for in rule 5.43 which is set out below:
    • “5.43 If a claim is not served within 3 months of the date endorsed by the registrar under rule 4.3:
    • (a) the claimant may apply to the Registrar to have the claim renewed within one month after the expiry of that period; and
    • (b) if the claimant does not do this, the claim ceases to be of any effect.
    • Where the Registrar agrees to renew a claim under this sub-rule the claim may be renewed for a further three months and the Registrar shall endorse the claim accordingly.
19. After three months had passed since filing the claim, and service had not been effected as prescribed the Claimant then was required to apply to the Registrar to renew the claim if the claim was to continue to be of any effect. He had one month to do so. He did not make any such application and has not done so in the many months that have followed. Although the Defendant has deposed that he received the claim and the sworn statement from his brother on 9 May 2023, the requirements of rule 6.4 have not been met. There has therefore been no service of the claim and no application to renew the claim, it therefore of ceased to be of any effect.

Application to strike out claim

20. The Defendant applied for an order pursuant to Rule 9.75 of the rules. That rule provides:
    • 9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
    • the proceedings are frivolous or vexatious; or
    • no reasonable cause of action is disclosed; or
    • (c) the proceedings are an abuse of the process of the court;
    • the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.”

The first ground upon which the Defendant relies is Rule 3.42 which provides:

• “3.42 Any person entitled in custom to represent a community, tribe, line or group within Solomon Islands may sue or be sued on behalf of as representing the community, line or group, but the court, on the application of any party, or on its own initiative, may require that person to provide proof of their entitlement in custom to act as such a representative before any further step in the proceeding may take place.”

21. The Claimant claims on behalf of his tribe. The Court has ordered that he provide proof of his entitlement to act as such a representative but he has not done so. Had the claim be of effect I would then direct that no further step may take place in the proceeding until he has done so.
22. The Claimant has also failed to comply with an order made by the Court at the mention conference. He failed to file his submissions as directed in addition to his failure to provide evidence of his authority to act. He has placed no material before Court to show the tribe has any interest in the land other that a determination at a timber rights hearing. That hearing was not one to determine land ownership. Such hearings must be by the Chiefs and Local Court as set out in the Land and Titles Act.
23. The Court of Appeal in Noro v Saki [2016] SBCA 18 set out the test when it is alleged that no cause of action is shown in a claim. The Court said at paragraph [10]:
    • “...on an application to strike out based on an allegation that the claim revealed no cause of action, the judge must assume the claim can be proved. The Judge must then ask - assuming the Claimant can prove all of these allegations, does the claimant have a sustainable cause of action? With these facts proved could the claimant succeed? If the answer is yes, the claim cannot be struck out.”
24. In the claim the Claimant alleged that the Vavae tribe is the rightful owner of the land in contention. He relied on the findings of the Western Province Executive that the Claimant was the rightful person to grant timber rights over Gae Customary Land. He referred to the fact that the Defendant appealed the decision the Western Customary Land Appeal Court which dismissed the appeal. He has then pleaded that the Defendant has encroached on the land and built a structure on the land without obtaining the approval of the Claimant and that the Defendant is in unlawful possession of the land. He does not plead that the Defendant has done these things without the approval of the Vavae tribe rather he relies on his own lack of approval.
25. The sufficiency of the evidence from the WCLAC and the Western Provincial Executive are matters that go to evidence, not to a lack of a cause of action.
26. I am not satisfied that the application to strike out the claim is made out on the basis of there being no cause of action. However the Claimant is not entitled to take a further steps in these proceedings until he has furnished the Court with evidence of his entitlement to act.
27. There is a further issue in this is a case. The Claimant has taken no step in the proceedings since July 2023. In these circumstances and bearing in mind the Claimant’s failure to provide proper evidence of service of the claim and his failure to comply with rule 3.42 this is a case where rule 9.72 clearly applies. Even if the Court overlooked that there was no proof of personal service of the claim and no application to renew the claim his failure to take a step in approximately 18 months satisfies me that the claim should be struck out.
28. The address for service remains that of his lawyer in 2023. He must now know that his former lawyer is now a Member of Parliament. The election was in April 2024. Any person reasonably wishing to pursue a claim would have taken steps well before now. He has not done so. In accordance with rule 9.72(d) I find the Claimant has taken no step in the proceedings for 12 months. I therefore strike out the proceedings.
29. This is a case where the claim was not properly served within the three months provided by the rules. I have evidence before me that notwithstanding that the Defendant has become aware of the proceedings and has taken steps to defend his position, this is a clear case where the proceedings must come to an end and I now so order.

Order

1. The application for default judgment is refused.
2. The Claimant is to pay the costs of the Defendant is respect of that application.
3. The application to strike out the claim on the basis of there being no cause of action is also refused.
4. The claim was not personally served within the time prescribed and no application has been made to renew the claim, the claim is therefore of no effect and the proceedings are at an end.
5. Even if the claim had been served as required, the Claimant has taken no steps in relation to the proceedings for more than twelve months, therefore the Court of its own motion makes the additional order striking the proceedings out in accordance with rule 9.72.

By the Court
Hon. Justice Howard Lawry
Puisne Judge