Hearing: 27 August 1998
Ruling: 25ember 1998
C. Ashley for Applicants
R.utao for 1st, 2nd & 4th; 4th Respondents
B. Titiulu for 3rd Respondent
L. Tepai for 5th Respondent
MURIA CJ:
This application is made on behalf of the first. second and fourth
respondent seeking to strike out the Originating Summons
and Summons filed
by the applicants in this case. The basis for the application are that the
amended Originating Summons
filed on 8 May 1998 and amended ex parte Summons
filed on 16 March 1998 are an abuse of the Court's process and that the High
Court lacks jurisdiction to hear and determine them.
In support of the application. Counsel for the respondents relied on the
affidavit filed by the first respondent. Counsel
argued that the applicant
who have failed to follow the statutory requirement of appealing against the
Acquisition Officer's
decision, now brought these proceedings as a "detour."
I take Counsel's suggestion to be saying that the applicants
being caught
out of time to appeal against the Acquisition Officer's determination, have
now brought these proceedings
to challenge the Acquisition Officer's
decision by another route. That. argued Counsel, is an abuse of the process
of
the Court. On the issue of lack of jurisdiction, Counsel for the said
Respondents urged the Court to find that it has no jurisdiction
to deal with
the matters set out in paragraphs 4,5 and 6 of the Amended Originating
Summons as they are matters of custom.
The issues raised by Counsel for the respondents in this application can be
briefly disposed of. This Court has an inherent
jurisdiction to prevent
abuse of its process. Also the High Court (Civil Procedure) Rules, 1964,
make provisions to protect the process of the Court from being abused by
empowering the Court to strike out pleadings
and to dismiss actions which "disclose
no reasonable cause of action" or which are "frivolous or vexatious."
See O.27 r.4. In Selwyn Dika & Ors -v- David Lenga Somana, CC242/96
(Judgment delivered on 21/8/98) this Court stated:
"There is power both under the Rules and in the inhe inherent jurisdiction of the
Court to strike out pleadings which
are vexatious or an abuse of the process
of the Court and to dismiss the action. This inherent power has been
extended
to protect the Court from the abuse of its powers by litigants."
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In so stating, the Court adopted and applied the cases of Reichel -v-
Magrath, 14 App. Cas. 665 and Metrop. Bank -v- Pooley, 10 App.
Cas. 210. However this coercive power of the Court must be exercised
sparingly as pointed out by the Court of
Appeal in Leslie Allinson -v-
Monique Medlin, Civ. App. No. 7/96 (Judgment delivered on 15/4/97). The
Court of Appeal adopting the remarks of Barwick CJ in General Steel
Industries' Inc. -v- Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125,
said:
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"The jurisdiction summarily to terminate an action is to be sparingly
employed and is not to be used except in a
clear case where the Court is
satisfied that it has the requisite material and the necessary assistance
from the parties
to reach a definite and certain conclusion.'
Similarly, this Court in Tatalu & Wanefaekwa -v- Lifuasi & Leaga,
CC146/96 (Judgment given on 19/6/96) also sounded out the caution where
Awich J. said:
"Striking out claim, and dismissing a case summarily is a drastic action by
the Court and can only be done in very
clear cases where the claim is
baseless and does not disclose cause of action."
Tntention by Counsel for the respondents in the present case case is that
the Court should exercise its coercive power
summarily and strike out the
applicants' action on the ground of abuse of the Court's process.
This action brought by the applicants challenging the Acquisition Officer's
decision made pursuant to proceedings under
section 63 of the Land and
Titles Act. There is no dispute that the applicants have an interest in
the proceedings conducted and the determination made by the Acquisition
Officer in the subject matter of this case. They were among the persons who
attended the hearing and gave evidence before
the Acquisition Officer on 23
and 24 April 1997 at Munda. The determination was made on 25 April 1997. The
applicants
being aggrieved by the determination appealed to the Magistrates
Court. The Notice of Appeal was dated 22 October 1997. It
was however not
received by the Magistrates Court until sometime on 3 March 1998. Clearly
the applicants were out of
time to appeal. The applicants, however, applied
to the Magistrates Court for 'extension of time' to appeal, not ‘abridgement
of time' as indicated in the Magistrates Court's decision of 20 May 1998.
The Magistrates Court granted the extension
of time. That appeal having been
lodged, it is still pending before the Magistrates Court.
The position therefore must be that the applicants, being eing out of time to
appeal pursuant to section 65(1) of the
Land and Titles Act, were
granted extension of time by the Magistrates Court to appeal and did appeal
against the determination of the Acquisition
Officer. That appeal is
presently before the Magistrates Court. It is not therefore correct to
suggest, as did so by
Counsel for the respondents, that the applicants are
bringing these proceedings as a 'detour', having failed to comply with
the
requirements of section 65 of the Land and Titles Act.
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Following on from the 'detour' argumenunsel for the respondents unts urged
upon the Court the contention that having failed
to follow the statutory
period for appeal, resulting in their being out of time, the applicants were
abusing the process
of the Court by bringing this case by way of declaratory
proceedings. The short answer to that is that the contention is
misconceived. The appeal, although out of time, had been rectified and it is
now pending before the Magistrate Court. Secondly,
I do not think that it
can be said that the applicants are obliged to pursue a remedy in private
law, in preference to
one in public law. It is of course a matter of
discretion for the Court which may refuse a remedy in public law if a
statutory right of appeal is not exercised. But this is not to say that a
litigant is obliged to pursue his remedy in private
law in preference to the
one in public law. In R -v- Post Master-General ex. p.
Carmichael
[1928] 1 KB 291, the Court granted certiorari although there was open
to the applicant, a remedy by way of appeal. See also R -v- Public
Service Commission ex. p. Tiare [1984] SILR 80.
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The applicants have exercised their rights to seek remedy in this case both
under statute and in public law. While their
appeal before the Magistrates
Court is still on foot, they have also brought these proceedings seeking
declaratory orders.
They have chosen to pursue these proceedings before this
Court. I do not see anything wrong with the choice they have made
nor do I
see it as tantamount to an abuse of the process of the Court.
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Mr. Titiulu who appeared for the thirdondent suggest that in view view of
the appeal now before the Magistrates Court
this Court should stay these
proceedings. I do not think so. The applicants may, depending on the outcome
of these proceedings,
decide whether or not to pursue their appeal before
the Magistrates Court. The outcome of these proceedings will no doubt have
a
considerable effect on their decision.
The argument that the institutf these proceedings amount ount to an abuse of
the Court's process cannot be sustained.
The next ground alleging the lack of jurisdiction in this Court to deal with
matters raised in paragraphs 4, 5 and 6 of
the Amended Originating Summons
can also be disposed of briefly. View in their isolation. paragraphs, 4, 5
and 6 may
seem to be raising matters of custom in which case this Court
lacks jurisdictions. However I do not see the Court is being
asked to apply
or interpret custom in this matter. This Court is being asked to review the
determination made by the
Acquisition Officer. The procedure by which he
made his determination as well as the law applied in the Process are matters
to be considered as well. The whole circumstances under which he determined
who was and who was not entitled to execute
the lease agreement over the
concerned land must be considered. This is unlike the requirements to be
followed had the
matter been brought before this Court by way of appeal
under section 65(2) of the Land and Titles Act in which case the
Court will only restrict itself to an error of law.
Even if the matters raised in paragraphs 4, 5 and 6 are concerned with
custom and thereby depriving the High Court of
jurisdiction to deal with
them, their inclusion in the Originating Summons does not necessarily mean
that the Court does
not have jurisdiction to deal with the whole
application. It may mean that the Court does not have powers to deal with
matters contained in those paragraphs. That the Court can consider when it
deals with the Originating Summons itself. But
it cannot be said that
because one or two matters concerning custom are raised in the Originating
Summons. the Court
lacks jurisdiction to hear the application altogether.
This cannot be right.
The ground based on lack of jiction equally must fail alil also.
The application e first, second, and fourth respondents is refused with
h
costs.
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(Sir John Muria)
CH CHIEF JUSTICE
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