Harry v Attorney General [2016] SBHC 145; HCSI-CC 44 of 2015 (9 September 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 44 of 2015

BETWEEN: KEVIS HARRY Claimant (Representing himself and members
of Sabere-Vuvure clan of Rendova,
Western Province)

AND: ATTORNEY-GENERAL First Defendant
(Representing the Western Provincial
Executive)

AND: ATTORNEY-GENERAL Second Defendant (Representing the Western Provincial
Executive)

AND: BULACAN INTERGRATED WOODS Third Defendant
INDUSTRIES COMPNAY LIMITED

AND: TAMANA ASERI Fourth Defendant

Date of Hearing: 3^rd August 2016
Date of Ruling: 9^th September 2016

Mr J. Taupongi for the Claimant
Mr M. Tagini for the Third and Fourth Defendants
Mr S. Banuve for the First and Second Defendants

RULING ON APPLICATION TO STIKE OUT OR DISMISS CLAIM

Faukona PJ: This application is purposely to set aside the interim orders or to dismiss the claim. It would appear the application comprises of two integral parts. One as expected supposed to be an inter-parte hearing following the interim orders granted by this Court on 12^th November 2015. The second part as implied by the relief is an application to strike out accommodated by Rule 9.72 and 9.75 where the claim is frivolous and vexatious, or no reasonable cause of action is disclosed or an abuse of court process. Under the Rules, a separate application can be filed after the applicant has assessed the strength of the claim and the chance that it would not succeed if preceded to trial.

2.	In this case the Counsel for the third and fourth Defendants consolidated the two processes with one application. I have no doubt there is possibility in doing so, provided complexity in dealing with both is reduced to minimal.
3.	The Claimant and the fourth Defendant are members of the same tribe who own certain customary lands on Rendova Island, Western Province; the lands are sabere, vuvure and bokere customary lands.
4.	The dispute between the parties emerged when the claimant challenged the issuant of a forest felling licence No. A10449 issued to the third Defendant on 16th July 2009. The concession area which the licence covered is the three customary lands as mention in paragraph 3 above.
5.	Having well versed with the conduct of the fourth Defendant, his indulgent and possible committal of certain irregularities as alleged in the timber rights processes. As a result of such, the Claimant then instituted Civil Case No. 136 of 2007 in the High court on 18th April 2007.
6.	On about 31st March 2010, the Registrar of the High court struck out the case for want of prosecution. An application to reinstate the matter was filed on 31st July 2014 but was dismissed on 24th November 2014. In my Ruling on 24th November 2014 I did mention at paragraph 25 “that the way forward is for the Claimant, if so wish, to file a new proceeding with a new claim”.
7.	Taking advantage of that obiter the Claimants now return and file this case.
8.	The argument advances by the Counsel for third and fourth Defendants are two folds. One, that instituting this case is barred by the application of the principle of res-judicata, and secondly that the suggestion of the Court in paragraph 25 in Civil Case no. 136 of 2007 is not an order and that a new case would mean a different cause of action with different parties.
9.	The argument advances by the Counsel representing the Attorney-General is based on the fact that since this case is a claim for quashing order or judicial review, and that the decision which is subject to reviewal was given about ten (10) years ago, this claim was filed in breach of Rule 15.3.8 which must be filed within three months from the date the decision subject to renewal was given. Notwithstanding that, time can be extended pursuant to Rule 15.3.9. As the case now stands there was no application to extend time therefore the claim should be dismissed.
10.	The Counsel for the Claimant agrees that the cause of action is the same and the parties are the same. The only difference is that the decision made in Civil Case No. 136 of 2007 was not made on the merits or on the substance of the case. Therefore, the principle of res-judicata does not apply. And that this case was filed under the direction of the Court.
	Principle of res-judicata:
11.	The dictum in the doctrine of res-judicata is well accolade by a number of English cases, which had been well accepted, adopted and applied in this jurisdiction. It becomes a trite law which is well received with gratification.
12.	In the latest case of Majoria V Jino[1]the Court of Appeal set out the test in terms of essential elements of the doctrine of res-judicata; they are;
	1.		an earlier case in which the cause of action or point in dispute was really the same;
	2.		A final determination by a Court of that cause of action on print on its merits; and
	3.		The raising of the same cause of action or the same point which has distinctly put in issue by a party has had the action or point Solemnly and with certainty decided against him.
13.	Counsel Mr Taupongi for the Claimant does not dispute that the same cause of action raised in CC No. 136 of 2007 are raised in this case. It is in fact a dispute which arose out of customary land in relation to a logging licence and operation of the second and third Defendants in the land.
14.	In regards to the second element concerning same parties Mr Taupongi does not dispute because this case is still a challenge on logging activities by the same Defendants.
15.	On the third element Mr Taupongi submits, that, has not been proved. For the doctrine of res-judicata to operate and apply, the earlier case must have been decided conclusively on merit.
16.	I agree with Mr Taupongi the earlier case Civil Case No. 136 of 2007 was determined not on merits. The substantive cause of action was not determined. The Registrar of the High Court did strike out the claim for want of prosecution. And I refuse to grant application for reinstatement because the reasons for not prosecuting the case were not satisfactory. Technically the case was not determined on merit. And that was the reason for me allowing the second chance my filing of a new claim.
17.	Whether a new claim will consist of a new cause of action and new parties or the same claim with the same parties, does not matter. The significant point is that the Counsel for the Claimant ought to have known that the Claimant’s claim is for quashing order which is a judicial review case. Furthermore, the counsel ought to have been well versed with the rules that a claim for judicial review must be filed within 6 months, see Rule 15.3.8, if not then an application for extension of time be made pursuant to Rule 15.3.9.
18.	Whether it was what I propose, or an obiter on passing, that a new claim can be filed, does not mean the rules be over-looked, they ought to be complied with.
19.	In this case there was no application for extension of time. The decision to be reviewed was made about ten years ago. In fact leave to extend time was never applied for and never granted. The claim must be dismissed on this pint and the interim order on 12th November 2015 ought to be set aside as well.
	Orders:
	1.	The Claim filed by the Claimant on 16th February 2015 be dismissed.
	2.	The interim orders granted on 12th November 2015 be set aside and discharged.
	3.	Costs be on standard basis and be paid by the Claimant.
	The Court.

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^[1] (2007) SBCA 20; CA – CAC 36 of 2006 (1November 2007)