Kolly v Attorney General [2022] SBHC 115; HCSI-CC 163 of 2018 (17 November 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kolly v Attorney General
Citation:
Date of decision:	17 November 2022
Parties:	Ernest Kolly, Josiah Pone and Nicholas Maelana, Basil Manelegua, Maurice Kaprumana, Austine Boiregia and Lawrence Maneali V Attorney General, Samuel Manetoali, Richard Talu, Ambrose Kotu, Harold Trasel and Walter Supa, SKT Nanasan Company Limited
Date of hearing:	17 June 2022
Court file number(s):	163 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	(1) Application to dismiss the claim is hereby dismissed. (2) The restraining orders to continue in operation to maintain the status quo. (3) The Defendants’ to pay costs of this hearing to the Claimants on standard bases, if not agreed upon.
Representation:	Mr. B. Kaehuna for the 1st and 2nd Claimants Mr. G. Muaki for the 1st and 3rd Defendants No Appearance for the 2nd Defendant (The AG absent) Dispense with
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Wabia v BP Exploration Co. Ltd [1998] PNBC 177, Mauaia v Solomon Taiyo [1997] SBHC 106, Abe v Minister of Finance [1994] SBHC 118, Tikani v Motui [2002] SBHC ,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 163 of 2018

BETWEEN

ERNEST KOLLY, JOSIAH PONE AND NICHOLAS MAELANA
(Representing Mariu Vihuvunagi Tribe)
First Claimant

AND:

BASIL MANELEGUA, MAURICE KAPRUNANA, AUSTINE BOIREGIA AND LAWRENCE MANEALI
Second Claimants

AND:

ATTORNEY GENERAL
(Representing the Minister of Forest and Resources)
First Defendant

AND:

SAMUEL MANETOALI, RICHARD TALU, AMBROSE KOTU AND HAROLD TRASELA AND WALTER SUPA (representing the Posamogo Tribe)

Date of Hearing: 17 June 2022
Date of Ruling: 17 November 2022

Mr. B. Kaehuna for the 1^st and 2^nd Claimants
Mr. G. Muaki for the 1^st and 3^rd defendants
No Appearance for 2^nd Defendant (The SG), Dispense with

RULING ON APPLICATION TO DISMISS THE CLAIM

Faukona R, DCJ.

1. A claim in Category C was filed by the 1^st and 2^nd Claimants on 24^th May 2018.
2. On 15^th June 2018 an application for restraining orders was heard inter-parte. On 25^th of September 2018, the Court in its ruling granted the orders sought in the application.
3. On 13^th August 2020, the second and third Defendants filed this application to dismiss the Claimants’ claim. Unfortunately, there is no filed copy of the application on the court’s file. It may perhaps implicate the court is yet to be served with application. Nevertheless, I will determine the application on materials filed in the Court.
4. This application seeks to strike out both Claimants’ claim pursuant to R9.75.
5. That rule is concisely clear that the court may exercise its discretion, make an order that the proceedings be dismissed generally or in relation to that claim.
6. Noted that the rule places emphasis on dismissing the claim and may not necessary couched under strike out provisions under R9.71 to 9.74 and R19.5 to 19.6. In any event precedence has accommodated striking out as simultaneously as dismissal, and that is the route familiar with by the Courts in this jurisdiction.

The principal of law under R 9.75.

Rule 9.75 reads;

“If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) The proceedings are frivolous and vexatious; or
(b) No reasonable cause of action is disclosed; or
(c) The proceedings are an abuse of the process of the court;
the court may on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.

7. If a claim failed to comply with one of the requirements, the court may order the proceedings be dismissed generally or in relation that particular clam.
8. The test which must be satisfied in dealing with the application under R9.75, are entrenched in many case authorities.
9. The Counsel for the Defendants has gone into large extend in defining the first test of frivolous and vexatious claim. Not only that, but analysis and arguments why the Claimants’ claim is frivolous and vexatious.
10. Interestingly he points out the definition illustrated in the case of Wabia V BP Exploration Co. Ltd^[1], which His Lordship Sevua J stated,
    • “Frivolous mean not worth serious attention or manifestly futile. Vexatious means causing vexation or harassment to the Defendant put him in trouble and expenses in defending the proceeding which either a sham or which cannot possibly succeed”.
11. As to the test for reasonable cause of action, the Counsel refers to the case of Mauaia V Solomon Taiyo^[2], which stated, “in considering whether there is reasonable cause of action, it is necessary to show that the pleadings contain essential facts or particulars which disclose some cause of action, see also Abe V Minister of Finance^[3].
12. In respect to abuse of court process the Defendant’s Counsel submits that the claim is an abuse of process because it relates to purported landownership of customary land within limapogu customary land. The Counsel further states the Claimants as individuals or group, do not have any land decision to ascertain their customary rights of ownership over any particular land within limapogu customary land.
13. On the other hand the Counsel for the Claimants make reference to a well-known passage in Tikani V Motui ^[4], which the Court of Appeal emphasized that;

“The Court should only exercise its discretion to strike out in plain and obvious cases^[5], 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 are insufficient, even if proved, to entitle the plaintiff to what he asks^[6].
A reasonable cause of action means basically a cause of action with some chance of success or where a tenable case has been disclosed for the relief sought^[7].
So long as the statement of claim discloses some cause of action, or raises some question fit to be decided by trial, the mere fact it is weak and not likely to succeed is no ground for striking out.^[8].
If however, it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out^[9]”.

14. Further in Tikani’s case, the court has reminded itself that its power to dismiss a proceeding early should be sparingly used only in “plain and obvious cases”.
15. In my perception both Counsels have correctly identified the principle in law in relation to an application to strike out a claim.
16. Perhaps it is ideal to summarize the law. The benchmark in defining frivolous and vexatious is where a claim lacks all merit and was brought for ulterior purpose, that claim cannot possibly succeed.
17. A claim that discloses no reasonable cause of action is a claim that does not disclose a cause of action with no chance of success and whether it discloses a tenable cause of action for the relief sought.
18. An abuse of court process is clear where no reasonable person could properly treat as bona fide and contend that he had a grievance, which he was entitled to bring before the Court, see Tikani V Motui^[10].

Analysis and general discussion

19. In this application the reliefs sought are, one that the claim be dismissed generally, or in the alternative the claim be dismissed against Mr. Manetoali (1^st named second Defendant) in respect of the ownership of Taligi land. Secondly the claim be dismissed against second named second defendant (Mr. Richard Talu) in respect of ownership of kologajoga/mafara customary land, and thirdly the claim be dismissed against the third named second Defendant (Mr. Ambrose Kotu) in respect to ownership of Huali/kolosogna customary land.
20. Apparently, as it appears to be, Mr. Trasel and Mr. Supa who are fourth and fifth named defendants were left out and intentionally should be covered under the application of general dismissal.
21. In the statement of case the facts pleaded are of general dismissal, that the decisions by the Chiefs and the Local Court which the Claimants relied on had been set aside by various superior courts in favor of the Defendants. Therefore, the claim is frivolous and vexatious, hence time barred, as it relates to ownership of land within limapogu land.
22. The Defendants perceive the claim does not disclose reasonable cause of action because it mainly pleads declaration to rights to customary land which the High Court does not have jurisdiction to entertain.
23. The claim is an abuse of process as it relates to purported land ownership of lands within limapogy land, which the Claimants do not own or any land within limapogu land as Taligi land, kologajoga /Mafera land and Hauli/kolosogna land.
24. In the submissions the Counsel for the Defendants explore and expand on the principle tests as spell out under R9.75, but confine to the decisions of the Chiefs, the Local Courts and Customary Land Appeal Court in regards to the three customary lands mention above. And as pleaded within limapogu customary land, which the court had decided in favor of the three first name Second Defendants.
25. On that basis, it apparently reflects that the Defendants plead issues of customary land ownership which the Defendants say they own through decisions within the limapopogu land.
26. On the other hand, the Claimants submit that a similar application was pursued by the second and third Defendants which the Court had determined on 25^th February 2019.
27. I have read this application with its reliefs and statement of case. It is very brief, however, when it comes to submissions it unveil many similarities to the statement of case filed in the amended application on 16^th October 2018. That application also concerned with decisions of land Courts and tribunals including acquisition determination of lands located within limapogu customary land. It would appear the same is repeated in this application again. Is that not an abuse of court process?
28. I noted from material evidence the Claimants relied on Gao Chiefs decision on 2^nd January 1993, Local Court decision of 23^rd April 1995 and Gao House of Chef decision of 1^st March 1999.
29. The Defendants have denied those, because those cases were against Nelson Saina who eventually lost to them as well. Unfortunately, I cannot recall the decisions were in respect of each land and their boundaries. In the current case submissions concern decision in respect of a particular land without any proper boundary identification of those lands.
30. It would appear the Claimants do not deny the Defendants owning certain lands within the limapogu land by virtue of Court decisions. However, those decisions were decision in rem and not against the whole world. In fact they were against Nelson Saina and group or relatives.
31. If the Claimants had won those cases against Mr. Saina, how would the Defendant won those cases against a losing party later, and rely on paragraph 34 of the Defendants’ submissions.
32. For good reasons, the parties have made reference to a number of portions of land within the limapogu customary land which had been decided by the land courts and tribunals. But still remain cloudy in their specific boundaries.
33. The parties would agree and accept the true boundaries of limapogu land were stated by the Defendants in their amended application to set aside orders, and which was filed on 16^th October 2018. The boundary runs from beakesa stream to saile to hoa, to tanapiro to tanagramu down to hurukati and along the coast to beakesa stream again.
34. The boundaries which belong to Nelson Saina and group are from rotue to sugatilo or tukurau and extend out into the sea including the reef. That boundary is denied by the Claimants as not true.
35. If that was the boundary which allowed Mr. Saina to dispute with the Claimants, then thereafter with the Defendants again; the question to pause is whether those lands are within limapogu boundaries as parties have agreed to, or located within Mr. Saina and group’s boundary. That issue is alive and must be sorted out.
36. Another important aspect was raised in the previous amended application that Mr. Saina is not a member of Vihuvunagi tribe that was the finding of the Isabel Local Court dated 23^rd April 1995. That finding had never been challenged.
37. I am able to conclude that I agree the Defendants had won land cases in courts and tribunal. However the question is whether those lands are within Mr. Saina’s boundaries or within the agreed limapogu customary land boundaries.
38. It would appear the agreed boundaries have more features than the Saina group boundaries. It may be perhaps bigger than Mr Saina and group’s land.
39. Obviously the ownership of limapogu customary land, overall, and its boundaries, is a life issue and that can be settled in the right forum when the time comes. I would agree this Court has no jurisdiction to entertain customary land issues.
40. Whilst both parties agree that the Claimants currently have a local Court case LC 01/2002 pending before the Local Court for determination. Meantime it has not been completed because site visit has not been conducted yet. The case will definitely affect the boundaries and the ownership of limapogu customary land.
41. For that reason the restraining orders have to continue in operation, to maintain the status quo. The fact that felling of logs, for export (sale), without felling license is outside of the process provided by law. It cannot be said it was provided for under the Exemption Order issued under suspicion.
42. Form those analysis and discussions it is only rational to dismiss the application.
43. I find the claim is not frivolous or vexatious because the evidence and facts supporting ownership of specific customary lands do not cover the whole of limapogu land.
44. Neither it is unreasonable nor an abuse of Court process. The parties have agreed there is a Local Court Case pending. The decision will definitely affect this casen or part thereof, as it concerns the boundary and ownership of limapogu customary land.
45. Even the result of the two other cases in 2020, after the interim orders were made in favour of the Defendants, won’t charge the circumstances.
46. Finally, let me conclude that this application is in fact the same or if not similar to the application to set aside the interim orders filed on 18^th March 2019, but is coached under different rule.
47. For those reasons I must dismiss the application with costs.

Orders:

1. Application to dismiss the claim is hereby dismissed.
2. The restraining orders to continue in operation to maintain the status quo.
3. The Defendants’ to pay costs of this hearing to the Claimants on standard bases, if not agreed upon.

The Court.
Justice Rex Faukona.
Deputy Chief Justice.

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^[1] [1998] PNBC 177.
^[2] [1997] SBHC 106.
^[3] [1994] SBHC 118; HC-CC No. 117 of 2015 (12 August 1994).
^[4] [2002] SBHC; CC No. 29 of 2001.
^[5] Habbuck & Sons V Nilkson [1899] GB 86.
^[6] Chow V Attorney General.
^[7] Gatu V SIEA & Others, SBHC CC59/95; Ma’uana V Solomon Taiyo, SBHC CC 109 of 1997.
^[8] More V Lanson [1995] 31 TLR 418.
^[9] Drummond Jackson V BMA [1970] WLR 688.
^[10] (Ibid) (4).