Perch Christian Ministry Registered Trustees (Inc) v Attorney General [2019] SBHC 26; HCSI-CC 168 of 2018 (25 March 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Perch Christian Ministry Registered Trustees (Inc) v Attorney General
Citation:
Date of decision:	25 March 2019
Parties:
Date of hearing:	25 February 2019
Court file number(s):	CC 168 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	The claim is struck out with cost against claimant. Application for default declined.
Representation:	Mr. D Nimepo for the Claimant (No Appearance) Mr. F Hollison for the 1st and 2nd Defendants
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, s142, Civil Procedure Rule 2007
Cases cited:	Perch Christian Ministry Trustees (Inc) v Commissioner of Lands and King George Sixth School, Talasasa v Bea

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 168 of 2018

PERCH CHRISTIAN MINISRTY REGISTERED TRUSTEES (INCORPORATED)
Claimant

V

ATTORNEY GENERAL
1^st Defendant/Applicant
(Representing the Commissioner of Lands)

ATTORNEY GENERAL
2^nd Defendant/Applicant
(Representing the Land Board)

Date of Hearing: 25 February 2019
Date of Ruling: 25 March 2019

Mr. D Nimepo for the Claimant (No Appearance)
Mr. F Hollison for the 1^st and 2^nd Defendants

RULING ON APPLICATION TO STRIKE CLAIM RULE 9.75(A), (B), (C) AND APPLICATION FOR DEFAULT JUDGMENT

1. Court convened to hear 1^st and 2^nd defendants’ (defendants) application to strike out the claim pursuant to Rule 9.75 (a), (b) and (c). Counsel for the claimant was absent, without prior notice. Both counsel^[1] agreed to today’s listing, at motions on 5/02/2019. I directed counsel Hollison to write to Mr. Nimepo enclosing his written submissions. And to ask counsel Nimepo to file his written submission in one week. Counsel wrote by letter dated 27/02/2019 copied to the court. As of 19/03/2019, there was no written submission from Mr. Nimepo. Although Mr. Nimepo, was not in court to move his default judgment application, court will consider it.

The 2 applications

2. Defendants’ application to strike was filed first in time on 23/08/2018. Claimant’s application for default judgment was filed later on 25/10/2018. Defendants opt not to file a defence because they want to strike the case. Counsel Hollison alerted the court of this intention at motion day on 17/07/2018. Mr. Nimepo was absent at the said motion without prior notice. Counsel Nimepo, not being aware, of defendants’ intention; later filed application for default judgment on 25/10/2018. I will therefore disregard claimant’s application for default. What AG failed to do was to file “conditional response” to put the claimant on notice of intention to strike. Nevertheless defendants made that intention known verbally at motions as noted above. Had Mr. Nimepo attended court, he would not have applied for default.
3. Claim was served on Attorney General (AG) on 5^th June 2018. The AG opted not to file a defence. Instead AG apply to strike on 23/08/2018. Defendants say, the issues and the cause of action pursued in this case is/are the same as those issues and the cause of action, which this court has already pass judgment on in Civil Case 490/2016. Parties in both cases are the same too, AG says.
4. To ascertain the crown’s position; I had read the materials carefully. It is obvious that this case is a duplicate of Civil Case 490/2016. The parties herein are the same parties in Civil Case 490/2016 (same parties). The land in dispute here (PN 192-007-0228) is the same land claimant disputed in Civil Case 490/2016 (same cause of action). Looking at the reliefs sought here, claimant is seeking to nullify the “resumption notice” issued by the COL^[2] and the Board^[3] made in respect of PN 192-007-0228 (PN 0228) (same issues). Reliefs 1, 2, 3 and 4 of the Category C claim filed 30/05/2018 point towards claimant’s nullification intention.
5. In Civil Case 490/2016, trial judge, Brown J summarised the issues^[4] before him as follows:-
   • (i) Whether the Land Board has power to resume to FTE in 0228,
   • (ii) Whether the condition precedent of 6 months’ notice required under Sections 142 A (2) (a) of the Land and Titles Act (Cap 133) is a mandatory or directory requirement;
   • (iii) Whether it is proper for the Land Board to resume the FTE for “public purposes”, (in the light of that very purpose of the claimant); and
   • (iv) Whether it was reasonable for the Board to resume the land from the claimant for public purpose.

Claim estopped by the doctrine of Res Judicata

6. I find that the issues in Civil Case 490/2016 relate precisely to the 4 reliefs^[5] claimant is seeking here in Civil Case 168/2018. Those issues relate precisely to the same land PN 0228 (cause of action). In essence, this case and Civil Case 490/2016, the same claimant in both cases is seeking to nullify the decision of the COL and the Board (same defendants in both cases) and to resume back FTE in PN 0228 for the claimant school. On the doctrine of res judicata^[6] claimant is estopped^[7] from re-litigating the “same issues” (first limb of the doctrine), between principally the same parties. On the second limb of the same doctrine, claimant is also estopped from re-litigating the same “cause of action” between principally the same parties. There is estoppel with respect to the entire cause of action or a discrete issue (s). It is abuse of court process, for the court to allow the same cause of action and the same issues to be re-litigated, between the same parties. What the court has closed on merit, it cannot re-open. To do so is abuse of court process, because the integrity of the court would be called into question.

Claim is frivolous & vexatious, is an abuse of court process and discloses no reasonable cause of action; Conclusion and Orders

7. Claimant’s claim cannot therefore stand a chance of success. And no possible amendment would cure the defective claim because the claim is defective on merit not on the pleadings. Claimant cannot re-agitate the same issues and the same cause of action between the same parties in the High Court, in which a judgment was already pronounced by the same court in an earlier decision. Accordingly, I find the claim is an abuse of processes, discloses no reasonable cause of action and is frivolous and vexatious. This is a situation fitting for striking out under Rule 9.75 (a), (b) and (c); because the claim is certain to collapse. I therefore order that:
   • 7.1 The claim is struck out with cost against claimant.
   • 7.2 Application for default declined.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Counsel Mr. Damilea and Mr. Nimepo appeared at motions on 5/02/2019.
^[2] Commissioner of Lands.
^[3] Lands Board.
^[4] Top of page 3, PacLII version.
^[5] First 4 reliefs of the 7 reliefs that claimant is seeking in this claim.
^[6] See paragraph 9 of Talasasa v Bea [2016] SBCA 16; SICOA-CAC 03 of 2016 (14^th October 2016).
^[7] A legal principle that bars a party from denying or alleging a certain fact owing to that party’s previous conduct, allegation or denial.