Waririu v Dora [2020] SBHC 58; HCSI-CC 224 of 2012 (20 April 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Waririu v Dora
Citation:
Date of decision:	20 April 2020
Parties:	Moses Waririu and Ruth Waririu
Date of hearing:	6 March 2020
Court file number(s):	224 of 2012
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona J
On appeal from:
Order:	1. Application for stay of proceedings is refused and dismissed. 2. Order that cost of this application is paid by the Applicant/Claimant to the First Defendant on indemnity basis for bringing a frivolous cause of action to this Court. Well, discretion ought to be exercised in bearing costs.
Representation:	Mr. N. Laurere for the Claimant (Applicant) Mr. J. Zama for First Defendant Mr. D. Damilea for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, 229 (1) and (2), Constitution of Solomon Islands
Cases cited:	Hatanga Ltd v KCM Properties Ltd [2008] SBHC 62

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 224 of 2012

BETWEEN

MOSES WARIRIU AND RUTH WARIRIU
Claimant

AND:

HENRY STAR DORA
First Defendant

ATTORNEY GENERAL
Representing the Commissioner of Lands and Registrar of Titles
Second Defendant

Date of Hearing: 6 March 2020
Date of Ruling: 20 April 2020

Mr. N. Laurere for the Claimant (Applicant)
Mr. J. Zama for First Defendant
Mr. D. Damilea for the Second Defendant

RULING ON APPLICATION FOR STAY OF EXCUTION

Faukona, PJ: This is an application filed by the Claimants to stay execution of enforcement orders granted by this court on 1^st February 2019, authorizing the Sheriff to execute the orders.

2. On 14^th February 2019 a notice of eviction was issued and addressed to the Claimants.
3. In accordance with the Writ of Possession issued by the High Court on 1^st February 2019, an agent of the Enforcement Creditor acknowledged that he had received vacant land and premises occupied by the Claimants (Enforcement Debtors), in parcel numbers 191-016-316 situated at Mbokonavera Heights, Central Honiara.
4. The Claimants’ only ground supporting this application is that they had referred the matter to Police for criminal investigations questioning the process whereby which registration was facilitated on the same day the application was made. Apparently I do not intend to venture into the reality of the process whilst criminal investigations are carried on.
5. However, a significant point was raised in submissions by Mr. Zama that this application becomes vexatious and frivolous because the enforcement orders had been executed and vacant possession of the land had been delivered to the Enforcement Creditor. Hence, there was no property left to be executed.
6. Whilst logically that should be the legal position, Mr. Laurere argues that the execution was carried out after this application had already been filed.
7. Well, civil fraud entails by S. 229(1) and (2) of the Land and Tiled Act related to registration as the ultimate end of the process had been referred under investigations. That issue was part and partial of culmination of issues considered by the Court of Appeal, the highest court of this land and a determination had been made to that effect.
8. Whilst criminal investigation process can be distinguished with a higher standard of test, any investigation by Police, whether it be resulted in prosecution or not, in my view will bear some similarity as noted or found by the High Court and the Court of Appeal. And then appeal rights which must not be forged at this stage. That would definitely entertain a trial without end.
9. I noted the argument raised by the Counsel for the second Defendant, in particular, the fact that since the case was reported to Police as CRB NO: 1/2019, guess must be in January 2019. Since then no charges had been laid. There is no evidence available before the Court in respect of the progress of investigation, how far it went how many documents had already been investigated and perused.
10. I noted certain rhetoric and in the case of Hatanga Ltd V KCM Properties Ltd(^[1]), which stated even where criminal proceedings are pending arising from the same set of facts upon which the action is based, sufficient reasons must be mustered to support this application for a stay of proceedings paragraphs 6, paged 6.
11. Further her Lordship stated, “that any application of the tort felony rule in this case can only stall proceedings, send this action into a deep slumber and thereby defeat the ends of justice. No Court works to defeat justice”.
12. In the end her Lordship cannot agree that the tort felony rule is part of the laws of Solomon Islands today. Nothing in the Constitution of Solomon Islands suggests that archaic rules in the Common law, already discarded elsewhere must be upheld in this jurisdiction. Indeed the rule is caught in paragraph 2 (1) (b) of Schedule 3 to the Constitution for being inappropriate in the circumstances of Solomon Islands. This cannot be a legal dump site for out dated common law rules.
13. The true nature of this application is labeled as tort felony a principle adopted by Common law. That principle in my view cannot apply here, for the reason under S. 77 of the Constitution which gives the High Court unlimited jurisdiction in civil and criminal matters. Further S.10 (8) of the Constitution guarantees right to fair hearing.
14. In this case the rights of the parties had been determined by the highest court of the land, the Court of Appeal. My personal opinion is that tort felony principle may apply only where no final determination has yet been reached. In the current case it was. The first Defendant should now enjoy the fruit of his litigation. And that should ultimately come by, by execution of the enforcement orders which had been legally obtained and had been done.
15. With the reasons alluded to above, the application for stay of proceedings is hereby refused and dismissed.

Orders:

1. Application for stay of proceedings is refused and dismissed.
2. Order that cost of this application is paid by the Applicant/Claimant to the First Defendant on indemnity basis for bringing a frivolous cause of action to this Court. Well, discretion ought to be exercised in bearing costs.

The Court.

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^[1] [2008] SBHC 62; HCSI CC 134 of 2006 (19 September 2008).