Savino v Bulona Forest Holding Company [2013] SBHC 114; HCSI-CC 209 of 2013 (16 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 209 of 2009.

BETWEEN:

BENJAMIN SAVINO, DANNY BESA,
Claimants

CHARLES MANETARI, JAMES MANEBOSA
AND FRED OSIFELO

AND:

BULONA FOREST HOLDING COMPANY
LIMITED
First Defendant

AND:

EARTHMOVERS SOLOMONS LIMITED
Second Defendant

AND:

GUADALCANAL PROVINCIAL EXECUTIVE
Third Defendant

AND:

ATTORNEY-GENERAL
Fourth Defendant
(On behalf of the Commissioner of Forest Resources) .

Date of Hearing: 2nd August, 2013.
Date of Ruling: 16th August, 2013.

Mr. D. Lidimani for the Claimants
Mr. P. Afeau for Defendants (1) and (2).
Mr. D. Damilea for Defendants (3) and (4).

RULING ON APPLICATION FOR REINSTEMENT.

Faukona J: This application is for reinstatement of this case, and was filed on 24th August 2012, after it was struck out by the Registrar of the High Court on 3rd March, 2011.

2. The case proper is a claim in relation to customary land ownership, in respect of four lands namely Vatupiu, Lolohachiha, narodo and Latova. The cause of action was trespass to lands and conversion of trees.

3. In latter cause of time, an application for restraining orders were filed and on 2nd December 2009, the Court at paragraph 20 adjourned the claim sine die to enable the customary land claim of the lands to be determined by the Chiefs and Local Court if necessary.

4. On 4th October 2011 the Local Court struck out the case on the ground that the claimants did not comply with section 12 (1) of the Local Court Act, for not invoking the powers of the Chiefs first before going to the Local Court. In any event, the Counsels have accepted that was the cause taken by the Local Court.

5. In the meantime the Registrar of the High Court issued out show cause notices and eventually notified parties that the proceedings has been struck out pursuant to Rule 9.73 (b); that no steps have been taken in this proceedings for 6 months.

6. Mr Afeau argues that since the case had been struck out in the Local Court there is no longer any basis (cause of action) for the Claimants to continue their proceedings and this application should be dismissed.

7. The strike out case in the Local Court does not nullify Completely the Claimants from instituting a case before the Chiefs. That remedy still open. The striking out was basically because the Claimants had instituted a cause of action in a wrong forum; it should have commenced before the Chiefs.

8. Another point advanced by Mr Afeau is delay in filing this application. It has been 17 months since the proceedings was struck out by the Registrar of the High Court. Mr Lidimani submits that delay was attributed to illness and failure of the former Counsel, Mr A. Hou for not taking active role in in ensuring the case remains on foot. Mr. Afeau further submits that it would be unreasonable to blame the Solicitor alone, as two of the Claimants are persons living in Honiara.

9. I have read the materials before Court and the submissions, and I form the view that, lawyers often think that ordinary Solomon Islanders are expected to know Court process and rules. Even very educated people in this country, in different field of expertise, do not know the Court process and rules. We cannot expect much from them. Those who seek to find remedy in Courts rely on their Solicitors to represent them in all legal processes. They rely entirely on their Counsels. If Counsel fails their utmost obligated duties, or negligent in some sense, then their clients are expected to suffer legal consequences.

10. I for one do not expect two of the Claimants living in Honiara to be effectively administering the case, by finding a new Solicitor etc.; as one is incapable through illness from his surgery that cannot do much and the other was working.

11. The fact that the Local Court had struck out the proceeding does not mean it's the end of process. The Claimants can institute their claim before the Chiefs. To maintain the case alive in the High Court, steps must be taken to maintain it, though the case was adjourned sine die. I see there is no abuse of Court process.

Orders:

1. That this case, which was struck out on 3rd March 2011, by the Registrar of High Court be reinstated.

2. Cost in the cause.

The Court.