Leaga v Tatalu [2013] SBHC 98; HCSI-CC 71 of 2009 (1 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 71 of 2009

BETWEEN:

ALBAN LEAGA AND TAETA
(Representing the Takibakwa Tribe)
Claimants

AND

STEWARD TATALU, JEREMIAH
ANGISUI AND BARNABAS
WANEFAEKWA
Defendants

Date of Ruling : 1 August 2013

Mr. Tinoni for Claimants

RULING

1. The Claimants filed this claim against the Defendants on 6 March 2009. They seek the following relief: (A) An order for the Defendants, Stephen Tatalu and Jeremiah Angisui be prohibited to Claim Takibakwa land or develop the said land for whatever purpose without the consent of the Claimants; (2) An Order for the Defendant, Barnabas Wanefaekwa be prohibited from soliciting any person for the purpose of claiming Takibakwa land against the Claimants and the Takibakwa tribe, or develop it without the consent of the Claimants; (3) An order for costs to be assessed; (4) And any other order deem fit by the court.
   
2. The Defendants filed response on 30 March 2009 and filed defence on 28 April 2009. In their defence the Defendants made a counter claim, seeking the following orders: (1) An order to bring up and quash the judgment of the Local Court in Land Case No. 2 of 1996 between Tatalu and Wanefaekwa (Plaintiffs) and Ellision Lifuasi and Leaga (Defendants); (2) An Order to bring up and quash the decision of the CLAC emanating from the decision of the Local Court referred to herein; (3) Costs; and (4) such other orders as the court deems just and equitable in the circumstances.
   
3. The Claimant filed defence to the counter claim on 15 June 2009. From 15 June 2009, there was no step taken on the case by the Claimant. Because of that, the Registrar struck out the case under the Rule 19.1 (f) of the courts (Civil Procedure) Rules 2007, which are in these terms: "19 (1) unless the court otherwise orders, the Registrar of the High Court may exercise the functions of the court to perform such acts as indicated below or make, or refuse to make, any or all of the following orders..........(j) striking out proceedings under rules 9.71 to 9.74.
   
4. Having read rules 9.71 to 9.74, it is clear that the Registrar struck out the claim under rule 9.73, which is in these terms: "9.73 if no steps have been taken in a proceeding for 6 months, the court may: (a) give the Claimant notice to appear on the date in the notice to show cause why the proceeding should not be struck out; and (b) if the Claimant does not appear, or does not show cause, strike out the proceeding, including any interlocutory relief that has been ordered.
   
5. The Defendants contend that the Registrar made an error in making a strike out under rules 9.72 (d) and 9.73. First, a strike out under will be done only without notice if the Claimant takes no step within a period of 12 months. That is not position here. What occurred in this case was that the claim was struck out because within 6 months from 15 Jun3 2009, the Claimants failed to take any step in relation to the claim. This is wrong because there was no Notice to the Claimants to show causes why their claim should not be strike out. There an error because the Registrar failed to give mandatory notice to the Claimant before the strike out occurred.
   
6. A strike out under rule 9.73 should only take place after the Claimants have been given an opportunity to show cause why the claim should not be struck out. No notice of the impending intention to strike out the claim was served on the Claimants. Rule 9.72 (d) of the Rules does not apply in this case. This rule would merely be invoked if the Claimants took no step in the proceeding for 12 months.
   
7. In the circumstances, the striking out order is set aside. The case is adjourned for mention 8 August 2013, at 9.30am.
   

Order: 1. The application is allowed.
2. The order striking out the claim is set aside.
3. The claim is reinstated.
4. The case is adjourned for mention at 9.30am on 8 August 2013

THE COURT