Attorney General v Biku [2023] SBCA 24; SICOA-CAC 9029 of 2021 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Attorney General v Biku
Citation:
Decision date:	13 October 2023
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Keniapisia J)
Court File Number(s):	9029 of 2021
Parties:	Attorney General v Rex Biku, Solomon Islands Water Authority and Lemu Darcy and Jacob Zingihite
Hearing date(s):	5 October 2023
Place of delivery:
Judge(s):	Hansen P Gavara-Nanu JA Lawry JA
Representation:	N Ofanakwai for the Appellant A Radclyffe for the First Respondent N Laurere for the Third Respondent
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r9.75, Limitation Act S 5
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-4

JUDGMENT OF THE COURT

1. The First Respondent alleged that in 2014 he and others closed access to the Ziata water source because of what he said was the failure of the government to make a payment to the land owners for the use of water from that source. He said that an agreement was reached with the office of the Prime Minister and cabinet to make a goodwill payment of $400,000.00 in return for opening access to the water source. That agreement was made on 9 January 2014. He said that the payment had not been received in accordance with that agreement. He filed the claim against the Appellant, representing the Commissioner of Lands, the Second Respondent and the Third Respondent on 5 August 2021.
2. On 24 September the High Court issued a ruling on an application to strike out the claim. The Judge struck out the claim pursuant to rule 9.75 of the Solomon Islands Courts (Civil Proceedings) Rules 2007. He found that the claim was frivolous and vexatious, was an abuse of the Court’s process and did not disclose a reasonable cause of action. He considered that the First Respondent had sued the wrong parties. In spite of his ruling striking out the claim he permitted the First Respondent to file an amended claim within 30 days of the ruling. In appealing that decision, the Appellant submits that once the claim was struck out there was nothing left to amend.
3. The First Respondent then filed an Amended Claim on 22 October 2021. The Amended Claim is in reality a fresh claim and not an amended claim as it is brought against two new parties. The First Respondent has not continued his claim against the Commissioner of Lands (Represented by the Attorney General) nor the Second Respondent nor the Third Respondent. The Amended Claim is against Jeffery Wickham as the First Defendant and the Attorney General, representing the Office of the Prime Minister and Cabinet as the Second Defendant.
4. The First Respondent has filed no submissions in this Court and has not appeared at the hearing of the appeal.
5. The Second Respondent and the Third Respondent have both supported the Appellant even though they are not parties in the Amended Claim. As counsel correctly submit, the order allowing the First Respondent to amend the claim is inconsistent with the order striking out the claim as disclosing no cause of action, let alone being vexatious, frivolous and an abuse of process.
6. There is another fundamental reason the order permitting the claim to be amended could not be made. The cause of action arose on the entering into an agreement on 9 January 2014. Section 5 of the Limitation Act provides:
   • “5.Except as otherwise provided in this Act, no action shall be brought, nor any arbitration shall commence, after the expiration of six years from the date on which the cause of action accrued.”
7. By 10 January 2020 the claim was out of time. As the claim was not filed until 5 August 2021 it was already out of time by nearly one year and seven months. The Amended Claim which in reality was a fresh claim was not filed until 22 October 2022 making it two years and 9 months out of time.
8. Apart from the consequences of the Limitation Act, if the Judge in the High Court considered that an amendment to the claim could remedy the failure that gave rise to the striking out order, he could have deferred striking out the claim in order to allow the claim to be amended. He did not do that. Once the claim was struck out there was no claim to amend. The appeal is therefore allowed so that the order granting leave to the Claimant to amend the claim is set aside.
9. The claim should not have been brought because it was out of time. The failure of the First Respondent to file submissions and the failure to appear at the appeal in spite of being reminded of the appeal must result in costs being awarded against the First Respondent. In the High Court he was ordered to pay the costs within 30 days. If those costs have not been paid they are to be taxed in the normal way. In respect of the appeal he is to pay the costs of the Appellant, the Second Respondent and the Third Respondent on an indemnity basis. If the costs are not agreed then they are to be taxed.

Hansen (P)
Gavara-Nanu (JA)
Lawry (JA)