Pabulu v Takakolo [2023] SBHC 114; HCSI-CC 302 of 2020 (10 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Pabulu v Takakolo
Citation:
Date of decision:	10 November 2023
Parties:	Scriven Pabulu and Dilenty Pitavoqa v Chief Ben Takakolo, Samson Qalo, Dalson George, Arase Vovose & Runny Tanaksu, Registrar of Titles
Date of hearing:	11 September 2023
Court file number(s):	302 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I order that this proceeding be reinstated. I also order cost to be in the cause on the basis that all concerned parties have contributed one way or the other in not progressing this matter to trial expeditiously. I order accordingly.
Representation:	Mr Michael Pitakaka for the Claimants/Applicants Mrs Nuatali A Tongarutu for the First Defendants/Respondents No Appearance for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rules 2007, r9.72 (d), Land and Titles Act Part V, Division 1
Cases cited:	Gaskell v Gaskell [2013] SBHC 177,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 302 of 2020

BETWEEN

SCRIVEN PABULU AND DILENTY PITAVOQA
(Representing the Topara clan of Azaka Tribe of South Choisuel)
Claimants/Applicants

AND

CHIEF BEN TAKAKOLO, SAMSON QALO DALSON GEORGE, ARASE VOVOSE & RUNNY TANAKSU
(As registered owners of land Parcel No. 049-002-1, Kibi Land)
First Defendants/Respondents

AND:

REGISTRAR OF TITLES
Second Defendant/Respondents

Date of Hearing: 11 September 2023
Date of Decision: 10 November 2023

Mr Michael Pitakaka for the Claimants/Applicants
Mrs Nuatali A Tongarutu for the First Defendants/Respondents
No Appearance for the Second Respondent

RULING

1. This proceeding was struck out by the Registrar on 9 February 2023 under rule 9.72 (d) of the Solomon Islands Courts (Civil Procedure) Rules 2007. That rule provides:
   • r. 9.72 The court may strike out a proceeding: without notice, if there has been no step taken in the proceeding for 12 months.
2. The scenario in this case is that a Claim (Category C) was filed on 6 July 2020 together with a joint sworn statement of Scriven Pabulu and Dilenty Pitavoqa. An Amended Claim was further filed on 31 August 2020. On 6 December 2020, the First Respondents filed their Defence. On 20 November 2020, ANT filed Notice of Change on behalf of the First Respondents. On 2 June 2021, the Second Respondent filed their Defence. On 20 August 2021, the Claimants filed their replies to the First and Second Respondents Defence and a Defence to the First Respondents’ Counter-claim. On 19 October 2021, Directions were made by the court to progress the matter to trial. The matter was then listed for mention on 1 March 2022. There is no record on file to confirm that the matter came before the court on the date it was scheduled.
3. As per the Direction order of 19 October 2021, only the Claimants have filed their disclosure on 8 November 2021. None of the Respondents filed their respective disclosure as directed by the court. Notwithstanding their non-compliance with the directions orders of 19 October 2021, the First Respondents filed an application to strike out the claim on 2 February 2023 and the matter was struck out on 9 February 2023, about 7 days after the filing of the application for strike out.
4. Ms Lily Ramo of Just Law Attorney was the lawyer on record for the Applicants at the material time. Subsequent to the strike out by the Registrar, the Claimant were made aware of it and they instructed Mr Pitakaka to act on their behalf and a Notice of Change was filed on 20 March 2023. The application together with the sworn statement of Dilenty Pitavoqa were filed on 30 May 2023.

The case for the Applicants

5. In the application now before the court, Mr Pitakaka of counsel relies upon the application and the sworn statement of Mr Pitavoqa in support. The summary of evidence in the sworn statement is that he has been trying to contact and get in touch with their lawyer through her phone number 74718832 but without success. On various occasions, he also went to Ms Ramo’s office at Panatina but she was not in office. He further stated that Ms Ramo had never contacted him about this case since he last saw her on 8 November 2021.
6. In summary therefore, the case for the Applicants is that they have tried all they could to contact Ms Ramo to check on the status of their case but their various attempts had proved futile. The court’s discretion is hereby sought to reinstate the proceeding. Mr Pitakaka of counsel relies on the principle used in the case of Gaskell v Gaskell [2013] SBHC 177; HCSI-CC 252 of 2011 to support his client’s application for reinstatement of this proceeding.

The case for the First Respondent

7. It is submitted by Mrs Tongarutu of counsel for the First Respondents that the application of the Applicants should be dismissed with cost. In her submission, Mrs Tongarutu relies upon r. 19.10 of the rules which states:
   • r. 19.10Where the Registrar gives a direction or makes an order or does any other act in any proceedings, the court may, on application by any party, made within 14 days after the direction, order or act, review the direction, order, or act, and may make such order by way of confirmation, variation, discharge or otherwise as the court thinks fit.
8. So, it is argued by Mrs Tongarutu that notwithstanding the fact that the court has discretion to review the strike out order by the Registrar, the application must be made 14 days after the strike out order of 9 February 2023. In this case, it was more than two months before the Applicants filed their application and sworn statement in support.
9. It is further submitted by Mrs Tongarutu of counsel that the fault in not pursuing the proceeding falls squarely on both the Applicants and their former lawyer. The Applicants could have sought alternative legal counsel to progress their case but did not. They have allowed their case to be dormant for more than one year. It is further submitted by Mrs Tongarutu of counsel for the First Respondents that if this court is minded to adopt the principles in the Gaskell case, then she seeks cost against the Applicants. But in any event it is also submitted by counsel that the circumstances in the Gaskell case are distinct from this case and ought to be distinguished on that basis.

Discussion

10. The nature of the Applicants claim in this proceeding is for rectification register in respect of parcel number 049-002-1 in South Choiseul, Choiseul Province. The Perpetual Estate over the said land was registered in the joint names of the First Respondents under Part V, Division 1 of the Land and Titles Act (cap 133) on 12 August 2018. According to the Claimants statement of case, they have registered their objections to the said registration because a big portion of their customary land was included in the said registration. Their concerns were not addressed and the subject land was subsequently registered. They then filed this proceeding because they were aggrieved by the action of the First and Second Respondents.
11. Having stated the background information to this proceeding, it would seem obvious that there are indeed triable issues raised in the Claimants statement of case in their Amended Claim filed on 31 August 2020. I have also taken note of the content of the sworn statements of Mr Pitavoqa filed on 31 May 2023 and the reasons advanced in trying to progress their case with their former lawyer. I have also perused the sworn statement filed on 21 August 2023 and could see that there was negotiation between the parties for the settlement of this proceeding.
12. I have also taken note of the sworn statements filed on behalf of the First Respondents. Apart from other issues raised in that sworn statement, it is also obvious that the Applicants’ party and the First Respondents’ party were trying to resolve the issues between them. Those attempts were not further progressed for unspecified reasons.
13. I am also minded to note that the issues between the Applicants and the First Respondents are issues that no other court can resolve but this court through its inherent jurisdiction. I have had the opportunity to consider r. 19.10 of the CPR which was not complied with by the Applicants in this case. I have also noted that the First and Second Respondents have never complied with the direction orders of 19 October 2021 to this date. In that regard, they have also contributed to the delay to progress this case. It is therefore my view that r. 19.10 should not be read in isolation but must be read together with other relevant provisions of the CPR. In light of the circumstances of this case, I am also inclined to take into account the provision of r. 1.14 of the rules which states:
    • r. 1.14 the court may in the interests of justice dispense with compliance, or full compliance, with any of these rules at any time.
14. So in this case, having considered the surrounding circumstances of this proceeding and in particular the nature of the claim, the attempts of the Applicants to pursue their case, the attempts to resolve the issue by both the Applicants and the First Respondents, and in the interest of justice, I order that this proceeding be reinstated. I also order cost to be in the cause on the basis that all concerned parties have contributed one way or the other in not progressing this matter to trial expeditiously. I order accordingly.

THE COURT
Justice Maelyn Bird
Puisne Judge