Kinita v Tafea [2015] SBHC 70; HCSI-CC 241 of 2014 (17 June 2015)

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

Civil Case No. 241 of 2014

BETWEEN:

HELEN KINITA, CHARLES KINITA IROBINA and JOHN IROBINA
(Representing themselves and members of Their AIMELA TRIBE of Central Kwara'ae, Malaita Province)
Claimant

AND:

WILSON TAFEA, NESTER IFUNAO & HELLEN CHITE
(Representing themselves and descendants of the late Leonard Maenuna)
First Defendant

AND:

THE ATTORNEY-GENERAL).
(Representing the Commissioner of Lands, the Registrar of Titles and Ministry of Police and National Security)
Second Defendant

Date of Hearing: 20th May 2015
Date of Ruling: 17th June 2015.

Mr. D. Lidimani for the Claimants
Mrs M. Bird for the first Defendant
Non one for the Second Defendant (Not affected by the result of this application).

RULING ON APPLICATION TO STRIKE OUT

Faukona PJ: A claim in category A was filed by the Claimants on 30th July 2014. The reliefs sought are five in all and they as follows;

1. Declaration that the acquisition and registration of perpetual estate in PN 151-001-22 parcel in favour of first Defendant's father was done by mistake or fraud or deceit without the knowledge or consent of the Claimants.

2. Declaration that the said parcel, prior to registration, was known in custom as busu akwala'au land, an integral part of the greater aimela land own by the Claimants.

3. Consequential declaration that the purported sale and or transfer of the parcel by the first Defendants to the second Defendants is null and void.

4. The first Defendants be restrained from further dealing with said parcel.

5. The title in the said parcel be rectified by the second Defendant in favour of the Claimants.

2. The first Defendant then filed a response on 15th October 2014 in acknowledgement, and will file an application to strike out within fourteen (14) days. The application to strike out was not filed within 14 days as promised but prolonged until 23rd January 2015, three months and eight days before this application was eventually filled. That is in itself a deceit by the Counsel responsible, for reasons not explained, or in order to advance some strategies or agendas. In any event the delay has never been caused to explain.

3. This application is premised on two grounds. One is an abuse of process and the other is that the claim is statute barred.

Abuse of Court process:

4. The abuse of Court process in this application is contested on the grounds that the parties in this case are the same as the parties in Civil Case No. 345 of 2012. The natures of the claims are the same. The previous case which involved the current parties in this case under the same context was struck out on 16th June 2014 for want of prosecution.

5. The positon of the current Claimants is that they admitted being party as the second Claimant in the previous case. However, that was an exercise employed by the first Claimants to bolster their case as purchasers of the customary land. That position was Changed when both Claimants learned that the Police Housing project was constructed outside the boundaries of the land sold by aimela tribe to Mr Irofiala, father of the first Claimants in the previous case. Mr. Lidimani Counsel advocate for the current Claimants suggests that the previous case should have been properly discontinued.

6. In the circumstances of this case, the question to ask is, is it an abuse of Court process for the Claimants to institute this matter? There was no appeal against the strike out order, nor was there an application for reinstatement. Will that bar the Claimants from instituting this case as a fresh case?

7. I noted the case of Tikani V Motiu[1] which Mrs Bird referred to in particular Page 7, paragraph 7, last two sentences, which stated, "proper course of action would have been to appeal rather than commencing a new action and raising the same issues". In other words the matter is res-judicata.

8. What actually transpaired in Tikani case is that in the previous case there was an actual hearing of the merit of the case by Kabui J (as he was then), of which a final determination has been made therefore the principle of res-judicata came into play. In this case a strike out order for want of prosecution is not a final order, see Paia V Talasasa[2]. There was no final determination of the issues raised therein. By convention, orders in such a manner provide concession, in that case be stuck out but with liberty to reinstate after a period of notice. If no such order for reinstatement within number of days' notice was given, then it is still open for the Claimants to file this case, and the principle of res-judicata is not applied here. I have actually checked the orders and it actually stated, "struck out for want of prosecution" and nothing more.

9. On another point, in the previous case there were two Claimants. In this case only one, though the subject matter is the same. From the reasons I have pointed out above I find there is no abuse of Court process and this ground must fail.

Claim statute barred:

10. The second ground the first Defendant relies on is that the claim is statute barred. Section 9 (2) of the Limitation Act provides the time limited to file a claim in relation to registered land is 12 years.

11. In this case the cause of action now before the Court accrued on 4th November 1968. There supposed to be an acquisition hearing that gave rise to the registration of the land in PN 151-001-22, Auki, Malaita Province. The registered owner was the late Leonard Maenuna father of all the first Defendants.

12. On 19th July 2014, Letters of Administration was granted to the first named first Defendant Mr Wilson Tafea Maenuna. From 4th November 1968 to 30th July 2014 when this case was filed is a period of 45 years and 8 months. Because of the passing of a vast lengthy period, will it render the claim statute barred?

13. Mr Lidimani relies on Sections 32 (2) (a),(b) and (c) of the Limitation Act which provide that in the case of fraud, concealment and mistake the cause of action shall not accrue until the Claimant has discovered the fraud, concealment or mistake. Counsel further submits that the discovery of fraud, concealment or mistake was triggered by an incident involving the first Defendants and a daughter of the late Irofiala, the purchaser. That incident alerted the first Defendants to the irregularities with the registration. The Claimants deny ever involved in any dispute with the first Defendants over the land prior to 2007. This is because of lack of knowledge or awareness of the land registration. Being the case, time would start to run from 2007.

14. I agree with the submissions by Mr Lidimani regarding the application of Section 32 of the Limitation Act on the issue of fraud, concealment or mistake. I accept that in instances where fraud, concealment or mistake is alleged, the cause of action accrues from the date fraud, concealment or mistake is discovered. In the case of Razak V AviAvi Marina[3], there must be evidence for the length of delay, whether the Claimant acted promptly, once he knows the cause of action. In this case the Claimant acted 5 years later.

15. However, this case has just reach pleading stage and has yet to be completed. When pleadings are fully completed there would be facts or evidence emerges and parties will fully argue their cases at trial. Meantime, in my view this issue forms part of the cause of action to be litigated at trial.

16. In this case I am urged to consider an application to strike out the claim pursuant to R9.75. Rule 9.75 (2) evidence can be considered apart from confinement to pleading. The Court can only exercise its discretion to strike out in plain and obvious case (Tikani V Motui)[4] and should be used sparingly and only in exceptional circumstances (Wills v Earl Howe)[5] and where it is clear that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks[6]

17. I find the claim is not frivolous or vexatious to render it an abuse of Court process. There are cause of actions which emerged from the submissions and documents filed so far. Some of which can be identified as follows.

a. Whether there was a sale of customary land known as busu akwala'au, to the late father of the first Defendant by aimela tribe. If so what was the price, considering 12.959 hectares of land sold.

b. Whether there was truly an acquisition process which prompted registration?

c. The legal issue of time barred.

d. The issue of jurisprudential approach.

Jurisprudential approach:

18. Counsel for the Claimants has succinctly submitted on the issue of jurisprudence or home grown law for Solomon Islands. I feel this cannot be dealt with in an interlocutory application. It is best left when the substantive issues in the claim is finally considered. Meantime it is premature to raise.

19. May I reiterate that there are serious and interesting issues to be heard at trial which parties must be allowed to fully litigate their case. Perhaps when pleadings are fully completed and facts and issues are identified the case will be fairly argued at trial.

Orders:
1. Order for striking out the claim filed on 30th July 2014 on the ground of frivolous and vexatious and abuse of Process refused.

2. Refuse to grant orders striking out the claim filed on 30th July 2014 on the ground of state bar.

3. First Defendant to pay costs in this proceeding to the Claimants.

The Court.

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^[1] (2002) SBHC 10; HC-CC 029 of 2001 (18 march 2002)
^[2] (1980) LAC No2 of 1968 (13 October 1980).
^[3] CC 76 of 1997
^[4] Ibid (1)
^[5] (1893) 2 Ch. 545.
^[6] Chow V AG CC 127 of 2000.