Maealasia v Ngalingwa'a [2012] SBHC 115; HCSI-CC 243 of 2010 (5 October 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 243 of 2010

BETWEEN:

ANTHONY MAEALASIA
1st Claimant

AND:

SISTO SUI'AU
2nd Claimant

AND:

BOBBY (MAX) NGALINGWA'A
1st Defendant

AND:

THE PRESIDENT, MALAITA LOCAL COURT
2nd Defendant

RULING : 5th October 2012

Mr. Lidimani for the Claimants
Mr. Levi for the 1st Defendant
No appearance for the 2nd Defendant

RULING

Mwanesalua J:

1. This is an application by the Claimants filed on 15th September 2011 for the following orders: (1) An order discharging the strike out order of the court of 7th September 2011; (2) The earlier orders of the court dated 8th July 2010 be revived; (3) This claim be reinstated; (4) Any orders the court sees fit; and (5) costs in the cause.
   
2. The Claimant's case is that: (1) The order of the 7th September 2011, striking out the claim under rule 9.72 (d), does not render the court functus Officio; (2) The court has inherent power to set aside any orders that are not final; and (3) The instant strike out of the claim was unwarranted as there was no inordinate delay in prosecuting the case.
   
3. The 1st Defendant's case is that the reasons advanced by the Claimants to support their application are baseless and should be rejected; and the order sought to discharge the order of the court of 7th September 2011 to strike out the claim was an abuse of the process of the court.
   
4. The Claimants filed their claim for Judicial Review on 1st July 2010. They seek the following relief: (1) An order that the Local Courts ruling of 15th June 2010 be removed into the High Court and quashed; (2) An order to declare that the Local court does not have jurisdiction to hear Local Court case No. 3 of 2005 for the reason that Section 12 (3) of the Local Court Act has not been satisfied; (3) An order that the matter be remitted for proper hearing by an appropriate House of Chiefs.
   
5. The Claim came before the court without notice to the Defendants on 8th July 2010. The court then ordered that, "The Local Court Land Case No. 3 of 2005 be stayed forthwith pending the determination of this case or until further orders of the court".
   
6. The Claim came before the court again on 7th September 2011. The Counsels for the Claimants and the First Defendant were present. They took part in the proceeding. It then became obvious that the Claim was never served by the Claimants on the Defendants since it was filed. The court struck out the Claim, discharge the order referred to in paragraph 5 above and awarded costs to the 1st Defendant.
   
7. The Claim is a Judicial Review case. The Claimants sought the reliefs set out in paragraph 4 above. It is a mandatory requirement under rule 15.3.10 of the Rules[1], that the Claimants serve the claim on the Defendants within in 28 days of filing. The Claimants failed to comply with that rule. There is no doubt that the claim had become an ineffective document as from 28 of July 2010. That is to say, that the Claimants will not get what they wanted to achieve under it. It seems that might be the reason for striking it out on 7th September 2011.
   
8. The court noted that the orders sought by the Claimants in this application. It was filed on 15th September 2011 after the ineffectual claim was struck out on 7th September 2011. The proceeding has been dismissed for want of prosecution. It could be set aside only on appeal or if the parties agree to it being set aside. The 1st Defendant did not agree to set aside the proceeding. The only option available to the Claimants is an appeal to the Court of Appeal. I consider it not serve any useful purpose for the court to invoke its inherent power to set aside the order to strike out because the claim was ineffectual and that there are no more claim and orders on foot.
   
9. In the circumstances, the application is refused.
   

Order: Application refused. The Claimants are to pay the 1st Defendant's costs of this application.

THE COURT

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^[1] Solomon Islands (Civil Procedure) Rules 2007