Lethy v Kuper [2023] SBCA 31; SICOA-CAC 9037 of 2021 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Lethy v Kuper
Citation:
Decision date:	13 October 2023
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Kouhota J)
Court File Number(s):	9037 of 2021
Parties:	Steven Lethy and Obed Siako v Karl Ogu Kuper, Frank Ninamu, Philip Luluku and Augry Gina, Commissioner of Lands, Registrar of Titles
Hearing date(s):	5 October 2023
Place of delivery:
Judge(s):	Hansen P Gavara-Nanu JA Lawry JA
Representation:	E Olofia for the Appellants W Ghemu 1st Respondent C Bula 2nd Respondent
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 3.5, 3.27, 3.28, 9.27 (b) (d), 9.72, Appeal Court Act [cap 6] S 11 (2) (f)
Cases cited:	R & R Engineering Limited v. The Ships Sri Ganga I & P [2009] SBCA 15, Solomon Islands Tang v. Lo (No.1 [1981] SILR 41, Birkett v. James [1977] 3 WLR 38, Quarter Enterprises Pty Ltd v. Allardyce Lumber Company Ltd [2009] SBCA 15.
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-7

JUDGEMENT OF THE COURT

1. The genesis of this appeal goes back to 12 April, 1996, when the Writ of Summons (the initiating process then for civil claims in which claimants were called plaintiffs) for a civil proceeding titled Civil Case No. 104 of 1996, was issued by the plaintiffs, who were Steven Lethy and Obed Siako on behalf of the Vuragara Tribe of Vella against the defendants who were Nathaniel Luluku, Gwendylene Abana, Commissioner of Lands and Registrar of Titles.
2. The parties in this appeal are Steven Lethy and Obed Siako as appellants and Karl Ogu Kuper, Frank Ninamu, Philip Luluku and Augry Gina as first respondents, Commissioner of Lands as second respondent and Registrar of Titles as the third respondent.
3. As it can be seen, the case is well over 27 years old. It is therefore not surprising that a number of respondents are different to those who were defendants in civil proceeding – Civil Case No. 104 of 1996. Those original defendants were not named in this appeal because they passed on and the application by the appellants which the primary judge struck out, the subject of this appeal, was seeking to replace those deceased defendants.

Background

4. The notice of appeal in this case was filed on 30 March, 2022 against the decision of the primary court given on 5^th December, 2021. That decision was on the application by the appellants seeking leave to amend the Claim in the above-mentioned civil proceeding – Case No. 104 of 1996 to add new defendants to replace the original defendants who have died. The application was made pursuant to Rule 3. 5; 3.27 and 3.28 of the Civil Procedure Rules, 2007.
5. Besides the appellants’ application was an application by the respondents seeking to strike out the appellants’ application on the grounds of inordinate delay. The application was made under Rule 9. 72 (b) and (d) of the Civil Procedure Rules, 2007.
6. The primary judge decided to hear the strike-out application by the respondents first because if that application was successful, then that would be the end of the matter.
7. After hearing the parties on the respondents’ application, the primary judge ruled that the appellants’ application was affected by inordinate delay which was not explained by the appellants and struck it out. In his judgment, the primary noted that the last activity on the case by the appellants was on 23 February, 1998, when the appellants sought default judgment against the respondents. The judge refused the application because of lack of jurisdiction as the matter before the court raised issues relating to customary land. Since that ruling the case remained dormant for 23 years until 3^rd November, 2020 when the appellants filed the application for leave to add parties to the proceeding.

Primary judge’s ruling

8. In striking out the appellants’ application, the primary judge among others, said: -
   • “I therefore now proceed to consider the defendant’s (sic.) application to strike out the claim. The defendant’s application to strike out claim. The defendants (sic.) application to strike out claim was filed on the 13^th August, 2021 pursuant to rule (sic.) 9.72 of the Solomon Islands (Civil Procedure Rules 2007 which provides, “the Court may strike out a proceedings;
   • (a) At a conference; in the High Court; or
   • (b) At a hearing
   • (c) As set out in rule 19.5; or
   • (d) Without notice, if there has been no steps taken in the proceeding for 12 months”
   • On the materials before the Court, I find that the Claimants had not taken any steps in this proceeding since his (sic.) application for default judgment was refused on 23^rd February, 1998, a period of more than 23 years. The Claimants did not give any reasons for the delay. I do not see how the claimants can justify an inordinate delay to take any steps in the proceeding for 23 years. The delay is inexcusable. For this (sic.) reasons I must dismiss the claim. Consequently, the application for joinder is also dismissed. Costs against the claimants to be taxed if not agreed”.

Grounds of appeal

9. The appellants raised 7 grounds of appeal which raise issues which are same as those over which the court refused appellants application for default judgment on 23^rd February, 1998. Thus, the issues were res judicata part from this, all the issues were affected by the inordinate delay under Rule 9.72 as discussed by the primary judge thus rendering the appellants application for leave to add parties an abuse of process.

Submissions

10. When one looks at the appellants’ submissions, they all raise issues relating to historical background of the case which as indicated clearly by the claim raise issues relating to customary land and thus falling outside the jurisdiction of the High Court. This is the reason the court in 1998 refused the appellants’ application for a default judgment.
11. The respondents argued that appellants failed to comply with the procedural requirements under the Civil Procedure Rules by failing to prosecute their claims diligently. The respondents argued that appellants’ application was also an abuse of courts process because they allowed their case to remain dormant for a very long time. Thus, the respondents argued that primary Court had proper basis to strike out the appellants’ application.
12. The respondents also argued that appellants breached Rule 1.4 which imposed a statutory burden on the appellants to ensure the case was dealt with by the courts with minimum delay.
13. It was also argued that the primary court had the inherent power under Rule 9.75 to dismiss the appellants’ application for abuse process.

Consideration and reasons for decision

14. Having considered submissions by counsel, we have reached an inescapable conclusion that the trial judge did not err in striking out the appellants’ application because there was clear evidence of inordinate delay which the appellants had to explain but did not. The appellants application was also a clear abuse of process for which the court could have dismissed the application under Rule 9.75. The courts have inherent power to dismiss proceedings or interlocutory applications for abuse of process. Notably, the appellants also failed to appeal the interlocutory ruling of the court on 23^rd February, 1998, under s. 11 (2) (f) of the Court of Appeal, Act, Chapter 6.
15. The courts’ power to dismiss or strike out proceedings on the grounds of abuse of process or inordinate delay was stressed by the court in Solomon Islands Tang v. Lo (No.1 [1981] SILR 41 where the court adopted the observations by Lord Diplock in Birkett v. James [1977] 3 WLR 38, where his Lordship said the courts should exercise their power to dismiss or strike out proceedings in following situations. First, where default has been intentional and contumelious such as disobeying court orders or conduct amounting to abuse of process. Second, where there has been an inordinate delay by the plaintiff, or his lawyers and such delay will affect a fair trial or is likely to cause or has caused serious prejudice to parties. These principles were adopted in Quarter Enterprises Pty Ltd v. Allardyce Lumber Company Ltd [2009] SBCA 15.
16. Both these factors laid bare before the primary judge from the materials presented before the court as indeed found by the primary judge.
17. In R & R Engineering Limited v. The Ships Sri Ganga I & P [2009] SBCA 15, the court in stressing the possible adverse effects of delays said there is always the risk of prejudice because witnesses die or disappear and memories fade. Such scenarios will prevent the court from reaching a fair conclusion in a case.
18. For the foregoing reasons, we find the learned primary judge’s decision was fair and proper, and made according to law. Thus, the primary judge’s exercise of discretion in striking out the appellants’ application did not miscarry.
19. Consequently, we dismiss the appeal.
20. The respondents’ costs of and incidental to this appeal and the proceeding relating to the appellants’ application to add parties before the primary judge be paid by the appellants which are to be taxed, if not otherwise agreed.
21. Orders accordingly.

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