Lepping v Misi [2017] SBHC 15; HCSI-CC 203 of 2015 (7 March 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No: 203 of 2015.

BETWEEN: WILLIAM GEORGE LEPPING Claimant
(Representing himself and the children of the late
George Lepping and the children of the late Dionesio
Tanutanu)

AND: KEVIN MISI First Defendant

AND: TRI-JAM ENTERPRISES LIMITED Second Defendant

Date of Hearing: 30^th November 2016
Date of Ruling: 7^th March 2017

Mr P. Tegavota for the Claimant
Mr A. Hou for the First Defendant
Mr M. Tagini for the Second Defendant

RULING ON APPLICATION TO STRIKE OUT

Faukona PJ: A claim in category (c) was filed on 19^th June 2015. The major relief sought is damages for trespass. The claim was promised on a number of factors but limited to the issue related to the power of attorney which was vested on the first Defendant, and the right of ownership of customary land through the process of traditional inheritance.

2.	In response, the first Defendant filed a defence on 20th August 2015. Before the defence was filed, this application was filed on 13th August 2015, to strike out the claim for being frivolous and vexatious and or that there is no reasonable cause of action disclosed.
3.	It would appear Counsels in this proceeding had failed to sense the importance of conducting an inter-parte hearing after the ex-parte orders were granted on 11th June 2015. Mr Tagini did mention the pending of such proceeding in his application to vary the ex-parte orders filed on 8th March 2016, which was subsequently granted on 16th March 2016. Since then the inter-parte hearing which was ought to have been done was never done. Instead Counsels indulged themselves in arguments in respect of facts in the sworn statements filed. Therefore it is proper and prudent to comply with the rules, and this proceeding must such as in the nature of an inter-parte hearing.
4.	In an application to strike out a claim, the discretionary power is vested upon the Court pursuant to Rule 9.75. The principle upon which the Court may strike out a claim is set out in the case of Tikani V Motui[1]. And rather than relying on pleadings alone, the Court may receive and consider evidence as permitted by Rule 7.76 and the case of Sa’oghatoga V Mugaba Atoll Resources Company[2].
5.	The principle is that a claim can only be struck out in a very clear case where the claim is baseless and does not disclose a cause of action. If pleading or statement show some essential facts which disclose some cause of action or raise question capable of consideration, the Court should not strike out. This has to be exercised sparingly.
6.	The land that is the centre of dispute is hisiai customary land in the Shortlands, Western Province. The Claimant says the ownership of hisiai customary land had been passed from generation to the next from Francis Haisoma to his son Dionesio Tanutanu and then to his son the late Sir George Lepping who owned it solely until his death on 24th December 2014. The Claimant is the son of the late Sir George Lepping. He further states that the first Defendant only involved in this case when the Claimant’s father was elected Governor General and hence unable to involve in the Court proceeding. Therefore on 24th May 1990, the late Sir George Lepping executed a power of attorney in favour of the first Defendant to appear on his behalf over hisiai land dispute.
7.	The first Defendant in defence states in evidence that hisiai land was jointly owned in custom by his uncle Chief Francis Haisoma Aimolang Tiomisinare, his cousin Silverio Rupai and Catherine Magila. Silverio Rupai is the father of the first Defendant.
8.	In 1978 Chief Haisoma informed the first Defendant that he would transfer the ownership of hisiai land to him through the process of “oto”. This was because the first Defendant was named after Chief Haisoma. In completion of the custom of “oto” the first Defendant paid one pig and $500.00 and gave them to Chief Haisoma. From 1978 the first Defendant solely owned hisiai customary land through that custom process.
9.	In the Local Court case held in February 1995, the party who won the case was Dionesio Tanutanu and group. I noted from record the first Defendant joined with Dionesio Tanutanu as one party. The interesting question to ask is why, if, the first Defendant had acquired sole ownership of hisiai customary from Mr Haisoma in 1978 through “oto” process, why Dionesio Tanutanu still had interest in the land by being a party to a dispute in 1995, though he was the father of the first Defendant. Why the first Defendant should not be a sole party himself? Was the “oto” process widely heard and known by the rest of the family, or was the custom process was not performed at all, or was it due to lack of respect to the process? It is a question ought to be answered, because a customary land own by a single person, traditionally in all respect, him alone is solely responsible should dispute arises and other relatives should not involve.
10.	Another point of conflict was the Power of Attorney signed by the Claimant’s father on 24th May 1990 authorizing the first Defendant to appear in any land case concerning hisiai customar land on his behalf. The Power of Attorney was never disputed by the first Defendant but acknowledged. If the Power of Attorney was accepted in 1990 by the first Defendant, what then had become of the “oto” process instituted in 1978? Was it still recognized, or was it still in operative in 1990? It would appear, despite the “oto” process in 1978, the Claimants father and grandfather still actively involved in Court cases concerning the land after 1978. That indicated that they still have interest and rights in the land. Only in this case now that the “oto” process was reinvigorated as a forefront means of acquiring the land individually.
11.	Again in CLAC No. 1 & 4 of 1995, the Claimant’s father and the first Defendant appeared as joint Respondents in that appeal. That undoubtedly manifested that they had equal interests and rights over hisiai customary land. A right and interest which they jointly obliged to defend in a court of law. That right has now being questioned and claim to have been extinguished, and seem to be taken away from the Claimant’s father and left nothing to his children because of the emphasis on “oto” process which has been resurrected after being dormant since 1978.
12.	I think the pleadings and evidence show that there are some essential facts which disclose some cause of action capable of consideration. It would not be in the best interest of justice if those facts are not considered in full at the trial.
	Orders:
	1.	Order that the application to strike out be dismissed.
	2.	The ex-parte orders varied on 16th March 2016 will continue to be effective.
	3.	Cost of this application is to be paid to the Claimant by the first Defendant.
	4.	The Registrar of the High Court to set a date for mention.
	The Court.

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^[1] (2002) SBHC 10, HC-CC 2001 (18 March 2002)
^[2] (2015) SBCA 4; SICOA – CAC 2 of 2015 (24 April 2015).