Lethy v Luluku [2021] SBHC 182; HCSI-CC 104 of 1996 (6 December 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Lethy v Luluku
Citation:
Date of decision:	6 December 2021
Parties:	Stephen Lethy and Obed Siako v Nathaniel Luluku, Gwendylene Abana, Commissioner of Lands, Registrar of Titles
Date of hearing:	4 November 2021
Court file number(s):	104 of 1996
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	For this reasons I must dismiss the claim. Consequently, the application for joinder is also dismissed. Cost against the claimants to be taxed if not agreed.
Representation:	Mr Olofia E for the Claimant/ 1st Applicant Mr Ghemu W for the 1st Defendant/ 2nd Applicant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 98, S 102, S 133 Solomon Islands Courts (Civil Procedure) Rule 2007, r3.5, 3.27, 3.28, 5.3, 5.35, r9.72,
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 104 of 1996

BETWEEN

STEPHEN LETHY AND OBED SIAKO
Claimants

AND:

NATHANIEL LULUKU
First Defendant

AND:

GWENDYLENE ABANA
Second Defendant

AND:

COMMISSIONER OF LANDS
Third Defendant

AND:

REGISTRAR OF TITLES
Fourth Defendant

Date of Hearing: 4 November 2021
Date of Ruling: 6 December 2021

Mr Olofia E for the claimants
Mr Ghemu W for the 1^st Defendant /2^nd Applicant

RULING ON APPLICATION FOR JOINDER AND APPLICATION TO STRIKE OUT CLAIM

Kouhota PJ

Civil case 104 of 1996 was first commenced by Writ of Summons when Claimants were still called Plaintiffs. This matter has been around for more than 25 years. This dispute is over the original ownership of Turovilu Island also known as Renard Island. The current record shows that in 1970, the Island was first registered under Part 111 of the lands and Titles Act in the name of Joseph Douglas as PE PN 079-005. In 1977 it was converted under section 98 if the LTA to the Commissioner of Lands, I believe section 98 is now section 102 if the Lands and Title Act, Cap 133, section 102 of the LTA states “Perpetual Estate converted under the provisions of this part shall, be held by the Commissioner on behalf of the government”. In 1995 the Commissioner transferred the Perpetual Estate in PN 079-005-1 to the Late Nathaniel Luluku and had it registered in his name for a consideration of $6,000.00

The Plaintiff claim seeks declaration that they represent their tribes, are the original owners in custom of parcel number 079-005-LR 115 and that they are entitled to perpetual estate herein, further that the Register of Perpetual Estate be rectified by removing the name of the First Defendant and substituting the Plaintiffs names. The last proceeding in this matter was an application by the Claimants for default judgment. The Court refused the application in its judgment delivered on 23^rd February 1998. In this judgment Awich J said, “I have considered exerting the discretion in favour of granting the application, but decided against it. The reason is that the nature of the claim raised fundamental questions about jurisdiction. It is arguable whether the High Court has jurisdiction in making the declarations that the plaintiff were the original owners of parcel No. 079-005-LR 115 where it was customary land before it was sold to Mr Henry Martin”. After that ruling no progress was taken on the matter and laid dormant for 23 years.

There are two application before the Court, one by the Claimant and one by the Defendant. The Claimants’ application seek leave to amend the claim pursuant to Rule 5.3 and 5.35 of the Rules and Rule 3.5,3.27 and 3.28 of Civil Procedure Rules , as parties the following persons, namely Kari Ogu Kuper, Frank Ninamu, Philip Lukulu and Audrey Gina to represent the first and Second Defendant Nathan Luluku and Gwendylene Abana who are now deceased.

When an application to strike out a claim if filed with other interlocutory application, it is appropriate to consider the application to strike first because the application is successful that should end the proceeding and there would be no need to consider the other applications.

I therefore now proceed to consider the defendant’s application to strike out the claim. The defendants application to strike out claim was filed on the 13^th August 2021 pursuant to rule 9.72 of the Solomon Islands (Civil Procedure) Rule 2007 which provides, “the Court may strike out a proceedings:

(a) At a conference in the High Court; or
(b) At a hearing
(c) As set out in rule 19.5 or
(d) Without notice, if there has been no steps taken in the proceeding for 12 months.”

On the materials before the Court, I find that the claimants had not taken any steps in this proceeding since his application for default judgment was refused on 23^rd February 1998, a period of more than 23 years. The Claimants did not give any reasons for the delay. I do not see how the Claimants can justify an inordinate delay to take any steps in the proceeding for 23 years. The delay is inexcusable. For this reasons I must dismiss the claim. Consequently, the application for joinder is also dismissed. Cost against the claimants to be taxed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge