Maeke v Commissioner of Lands [2009] SBHC 50; HCSI-CC 129 of 2009 (11 September 2009)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Civil Case No: 129 of 2009

BETWEEN:

Doreen Maeke &
1st Claimant

Jorge Teikanoa
2nd Claimant

AND:

Commissioner of Lands
1st Defendant

AND:

Joseph & Victoria Onika
2nd Defendants

Date of Hearing: 22 & 26 June 2009
Date of Ruling: 11 September 2009

Counsel for the First Claimant - Mr A Nori
Counsel for the First Defendant - Ms Ziru
Counsel for Second Defendants - Mr A Radclyffe

RULING

Naqiolevu J:

1. This is an application by the Second Defendant to strike out the claim of the First and Second Claimants against the First and Second Defendants filed on the 17th of May 2009 on the grounds that no reasonable cause of action is disclosed and that the claim is frivolous and vexatious, in that the Claimants have no locus standi.

2. Counsel for the Defendants assert the claim against the First Defendant is time barred as the land has been registered for more than 30 years. The Claimant further have no locus standing as the land is not customary land and the Defendants are entitled to rely on the rights granted to them under Section 109 and 110 of the Land Titles Act.

3. Counsel for the First Defendant supports the second Defendant’s Counsel Submission to strike out the claim by the Claimants. The land is not customary land and it involve two distinct parcel of land, but not related to each other.

The Claimants seek the following declaration:

(a) that the acquisition and registration of the Perpetual Estate in Parcel No. 191-023-141 in the name of the Commissioner of Lands is void ab initio.

(b) A Declaration that the grant of fixed term estate by the Commissioner of Lands to the Second Defendant is void and of no effect.

(c) A Declaration that the land comprised in Parcel Number 191-023-141 remains customary land and is owned in accordance with customary tenure.

4. The power of the Court to grant an application of a frivolous and vexatious proceedings are to be found under Rule 9.75 of the Civil Procedure Rule 2008. The grounds upon which the Court may grant the Order are:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause is disclosed.

(c) the proceedings are an abuse of the process of the Court.

5. The Claimants in their claim assert that the acquisition of the Perpetual Estate in Parcel Number 191-023-141 in the name of the Commissioner of Lands is void ab initio. Further the subsequent grant of the fixed term estate by the Commissioner of Lands to the Second Defendant is void ab-initio and no effect. The land comprised in Parcel Number 191-023-141 remains customary land and is owned according to custom.

6. The claim clearly involved the ownership of the land and the procedure adopted in the acquisition of the land which is alleged to be owned by the Gautabu tribe. The land as alleged by the Claimants did not form part of the original land acquisition carried out in 1950 for the expansion of Honiara City.

7. The Court is of the view that there are clearly arguable and important questions of law that need to be argued before a Court. The issue simply cannot be summarily disposed off without the advantage or full arguments being heard at the proceeding. In the case of Baroda –v- Wildenstein C.A), Stephenson LJsaid,

"I agree with my Lords that the judgment of Scott, L.J. in St. Pierre –v- South American Stores (Gath & Chaves) Ltd [1936] 1KB, 382, 398, correctly states the law governing such an application as this. The defendant has, therefore, to discharge the heavy burden of satisfying the court of two things: (1) that the continuance of the plaintiffs action would work an injustice because it would be oppressive or vexatious to the defendant or would be an abuse of the process of the court in some other way; and (2) that the stay of this action will not cause an injustice to the plaintiff".

8. The High Court of Australia authority of Dey –v- Victorian Railways Commissioners, Latham CJ said,

"But it is argued that if a case involves any question of difficulty the summary procedure of dismissing an action of vexatious should not be applied. In the present case there is nothing frivolous about the action, but if a court is of opinion that the plaintiff cannot succeed, there is every reason for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile. The contention of the appellant really is the procedure under Order XIVA or Order XXV., rule 4, or under the inherent jurisdiction of the court for dismissing an action of any early stage, should be used only in easy cases. I do not agree with this view where there is "opportunity for full argument" and full consideration of the question raised. In the present case the argument before the learned judge was evidently a thorough argument. It is true that it has often been held that the power of the court created by the Rules mentioned or existing under the inherent jurisdiction of the court should not be exercised except in clear cases...

It was said in Hubbuck’s case that this method was appropriate to cases requiring argument and careful consideration, and that the summary procedure under Order XXV., rule 4, was appropriate only to cases which were plain and obvious, so that any master or judge could say at once that the statement of claim was insufficient, even if proved, to entitle the plaintiff for what he asked...

If, as a result of argument, the court reaches a clear decision which could not be altered by any evidence which could be adduced at the trial, then it is proper in the interests of both parties to dismiss the action instead of allowing the parties to incur completely useless expense." Underlining mine.

9. The Court is of the view that quite apart from the provisions of the Civil Procedure Rules 2008, the Court has an inherent power to strike out frivolous and vexatious pleadings and actions where the cause of action is not apparent. Kabui J, as he then was, in the case of ANZ Banking Group Ltd –v- Charles Ashley Trading as A & A Local AC Firm) and James Apaniai & Johnson Hauromae Trading as A & H Lawyers put it succinctly when His Lordship quoted a remark, he said in the case of Mary Chow –v- Attorney-General,

".. An action may be terminated for defective pleadings on two grounds. The first is when the pleading discloses no cause of action. The second is when no defence is disclosed. This can arise in two ways. First is as above stated. That is to say, there being no cause of action or defence disclosed in the pleadings. Second is where the pleading is so badly drafted that the facts are not sufficiently stated. In cases where the pleadings are so badly drafted, amendments can cure the drafting defects. No so where the allegation is that there is no cause of action or no defence as each allegation hinges on the law.

The purpose of this summary procedure under the High Court Rules adopted from the English Supreme Court Rules 1883 is to ensure that cases in which the Statement of Claims are without legal basis do not reach the trial stage. That is to say, the procedure is a cost saving mechanism in the rules of practice like other summary procedures under the same rules. The practical application of it however is not automatic in that it is automatically applied by the Courts in all cases. The power to do so is discretionary depending upon the circumstances of each case. This is because there is a "risk of killing off the action prematurely and perhaps unjustly before the case is heard in Court at the trial stage where all the evidence in the Plaintiffs case will be led to reveal the full strength of the Plaintiffs case". This procedure is therefore reserved only for cases where there can be no doubt by any stretch of imagination that the Plaintiff clearly has no cause to argue in Court".. Underlining mine.

.."The principles of practice set out by LINDLEY M.R. above have since remained the basis of present approach by the Courts of Solomon Islands. I need not cite all the cases on this point in this jurisdiction as this procedure has been frequently applied in this jurisdiction..".

10. The Claimant’s statement of claim relates to the acquisition of the land the subject of the claim. He, as a customary landowner seeks a declaration that registration of the land in the Perpetual Estate to the Commissioner of Lands is void and the grant to the Second Defendant is therefore void and no effect as the land remains customary land.

11. There are clearly issues of importance and must be given the hearing it deserves to enable the Court at the trial stage hear all the evidence in the claimant’s case, striking the action out at this stage will deprive the claimant the opportunity to reveal the full strength of its case.

12. The Court is of the view that the proceedings is not frivolous or vexatious, and the proceedings is not an abuse of the process of the Court.

13. The Court further find that the Claimant as part of a customary landownership unit has standing to file this action.

14. The Court in all circumstances refuse the application to strike out the Claim and order the Claimants to file the amended Statement of Claim within seven days hereof. The Defendant to file their defence within 21 days thereafter. The matter is adjourned to the Registrar’s List for Mention.

THE COURT