Igi v Attorney General [2016] SBHC 48; HCSI-CC 356 of 2014 (21 April 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 356 of 2014

BETWEEN:

JACK MAELI IGI
Claimant

AND:

ABRAHAM EKE
First Defendant

AND:

VINCENT KURILAU &
RENTO KAVICHAVU
Second Defendants

AND:

ATTORNEY GENERAL
(Representing the Surveyor General)
Third Defendant

Date of Ruling: 21st April 2016

Iroga for Claimants
Waleilia. F. for the Defendants

RULING

Maina J:

Introduction

In this application, First Defendant seeks an order of the Court to set aside the interim injunction orders obtained on 20^th November 2014 as there was no reason disclosed for urgency. And an order to dismiss the proceeding as the actions of the lawyers and Claimant for the claim is an abuse of the Court processes.

Brief Background

The First Defendant is conducting a land refill of the seabed and foreshore in the land area which the Claimant claims to own according to custom.

And on 20^th November 2014 the Claimant by ex parte application obtained an interim injunction that restrains the First Defendant and Second Defendants from:

1. Entering centre plot of LR115 Lot 1 situated at Rove, West Honiara for purposes of carrying out back filling (extension work) and/or any related activities thereon until further orders.
   
2. An order that the First and Second Defendants removed all structures erected on the said plot where the back filling (extension work) is carried out forthwith.
   
3. An order that the Claimant files his claim by 5^th December 2014.
   

This ex parte order concerns or named Lot 1, LR115 situated at Rove, West Honiara as the property restrained by the ex parte orders of 20^th November 2014. It is also stated in the Claimant’s sworn statement to support his application for the interlocutory orders and filed on 23^rd October 2014.

The First Defendant said that he is refilling the area of seabed and foreshore claimed by the Claimant is part of perpetual estate registered in parcel no. 191-011-149 held by Commissioner of Lands and he holds fixed term estate of that parcel or the area of land. This area of land is referred to as Lot 2 of LR115 in and after the process under Part V of the Land and Title Act (133).

It is interesting to note the two copies of the map presented to support the Claimant’s application did not disclosed anything better but it is Lot 2 of LR 115 stated by the Defendant.

Fact not disputed

Beside to references as Lot 1 of LR115 by the claimant and Lot 2 of LR115 by the Defendants it is not disputed that the area of land subject to this claim is situated at Rove,

West Honiara and is the land area that involves or inclusive of the high water mark.
This area of land was subjected to the land acquisition in 2012 and registered on or about 19^th September 2014 as or within parcel 191-011-149.

Issues

1. Whether the restraining order issued on 20^th November 2014 by the process of urgent ex parte application be set aside as there was no reason disclosed for urgency.
   
2. Whether the actions of the lawyers and Claimant by filing a claim or interest of the land in custom with the obtaining an ex parte interlocutory order before filing a claim that seeks for the rectification of Perpetual Estate Register in Parcel No. 191-011-149 is an abuse of the Court processes.
   

Consideration of the Issues

There are two parts or issues in this application and the Court will firstly deal with the second issue as whatever that outcome may or would assist in the consideration of the Issue 1 or the issue for the continuation of the interlocutory injunction orders.

Issue 2

Counsel Waleilia for the First Defendant in his submission said the claim is frivolous or vexatious and is an abuse of Court process as the claim is based on customary ownership but the portion of land is a registered land under the Land and Title Act. The registration was acknowledged by Claimant in his claim filed in the Court when he seeks an order for the rectification of the Perpetual Estate Register in Parcel No. 191-011-149.

The claim was filed on 1^st December 2014 and seeks to rectify the title of the Perpetual Estate Register in Parcel No. 191-011-149 on the basis of custom.

This claim in custom is also stated in the Claimant’s sworn statement to support his ex parte application and filed in Court on 23^rd October 2014 that he owns the land in custom which he purchased from the landowners in 2003.

This fact simply discloses that the claim is based on custom and he is seeking rectification of register title in Parcel No. 191-011-149. He described the land or property as the maritime customary inclusive of the average high water mark along the coast line in front of the property which he also described as Lot 1, LR115. He said that it is given to him by the trustees of Tandai landowners who are the landowners of the said land. And he purchased it in 2003.

Mr. Iroga for the Claimant in his submission stated the land that is subject to this proceeding went through a land acquisition process in 2012. And the documents filed in the Court also confirm that 2012 land acquisition. The Claimant made a claim and he was listed as one of the persons who have an interest in custom but he was left out in the final determination by the Acquisition officers.

The registration of the portion of land is confirmed by the Claimant in his sworn statement of 2^nd March 2015 that the portion of land or the land consist of high water mark has been acquired and registered as Perpetual Estate Parcel No. 191-011-149. No evidence is available before this Court to show that he had appealed against that determination of the 2012 Acquisition officer’s determination.

From the submissions and documents adduced to the Court is quite clear that the Claimant in or with his claim seeks an order to rectify the title of the Perpetual Estate Register in Parcel no. 191-011-149 and his claim is based in customary ownership of the land.

The Law

The Court may strike out any proceedings that are frivolous or vexatious, no reasonable cause of action is disclosed or the proceedings are an abuse of the process of the Court R9.75 of the Civil Procedure Rules 2007. It is Court’s discretion to exercise that and base on principles.

With the principles and relates to no reasonable cause of action is disclosed, His Lordship Palmer ACJ (as he was then) in the case of Tikani v Motui (2002) SBHC 10; HC-CC 029 of 2001 (18 March 2002) stated the grounds or consideration that be taken into account on page 2 paragraph 7:

“In such an application, no evidence is admissible and the Court can only look at the pleadings and particulars. (Wenlock V Moloney [1963] 1 W.L.R, 38). The Court should also exercise its discretion to strike out in “plain and obvious case: (Hubbuck & Sons V Wilkinson (1899) 1 Q.B86, 91) and where no reasonable amendment would cure the defect. Such an application is only appropriate 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 (Chow V Attorney General CC 127 of 2000). A reasonable cause of action means a cause of action with some chance of success or where a tenable case has been disclosed for the relief sought (Gatu V SIEA, Attorney-General & Gold Ridge CC 59/95; Ma’uana V Solomon Taiyo Limited CC 109 (97). So long as the statement of claim disclose some cause of action, or raise some question fit to be decided by trial, the mere fact that it is weak and not likely to succeed is no ground for striking out (Moore V Lawson (1915) 31. LR 418; Wenlock V Moloney (ibid). If however, it is found that the alleged cause of action is certain to fail, the statement of claim should be stuck out (Drummond Jackson V British Medical Association (1970) 1 W.L.R 688 at P-692 Lord Pearson).

On frivolous and vexatious or an abuse of process, His Lordship Palmer ACJ again in the Tikani case, at page 6 paragraph 4 stated,

“The jurisdiction given to the Court on these ground is to be sparingly used only in exceptional cases (Lawrence V Lord Norrys (1890 15 App. Case 210 at 219 per Lord Herschell). It should be exercised only where the claim is devoid of all merit or cannot possibly succeed (Willis V Earl Beauchamp [1886] II P.D.59). In Norman V Mathews [1916] 85 L.J.K.B 857,859 Lush J propounded the test as follows;

“In order to bring a case within the description it is not sufficient merely to say that the Plaintiff has no cause of action. It must appear that his allege cause of action is one which on the face of it is clearly one which no reasonable person could properly treat As bona fide, and content that he had a grievance which he was Entitled to bring before the Court.”

For the Claimant’s case what seems to be and already clear is that his right of the ownership of land is based in custom. And the order he is seeking from the Court is the rectification of the title of the Perpetual Estate Register in Parcel No. 191-011-149, a matter that is regulated by the Lands and Titles. And section 229 of the Act provides:

“(1) Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

(2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default”.

By this provision, the High Court’s power to order rectification of the land register if it is satisfied that the registration has been obtained, made or omitted by fraud or mistake.
It is not on the proof of ground according or in custom as in this claimant case by seeking orders to rectify the title of the Perpetual Estate Register in Parcel No. 191-011-149 on the grounds of ownership in custom. It should also be noted that the High Court has no jurisdiction to determine the matters or issues of custom.

There is no evidences of fraud or mistake to support a rectification order under the section 229 of the Lands and Titles Act except or as the Claimant’s claim is only base in custom which this Court also lack the jurisdiction. The Claim has no basis or reasonable cause of action disclosed and therefore it is devoid of all merit or cannot succeed before this Court.

Whether it is the failure of the Claimant’s counsel to advice his client on this law or requirements, what seems to happen in this case is just like “crying over spilt milk”. Otherwise those were matters or issues for appeal when the land was acquired in 2012 or to be dealt with by the appropriate forums.

This claim has no basis of the claim and is dismissed.

From the ruling, the ex parte interlocutory order issued on 20^th November 2014 cannot sustain any more and is also set aside or discharged.

ORDER

1. The claim filed on 1^st December 2014 is dismissed.
   
2. The ex parte order of 20^th November 2014 is set aside and dismissed.
   
3. Cost with indemnity to the First Defendant.
   

THE COURT

Justice Leonard R Maina
Puisne Judge