Osiramo v Aeolinia [2023] SBHC 62; HCSI-CC 110 of 2019 (27 July 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Osiramo v Aeolinia
Citation:
Date of decision:	27 July 2023
Parties:	John Osiramo v Mezack Aeolinia, Leslie Osimae
Date of hearing:	12 July 2023
Court file number(s):	110 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird, PJ
On appeal from:
Order:	Consequently, I am further of the view that the claim of the claimant filed on the 7th March 2019 as it stands do not disclose a reasonable cause of action fit for this court to try and I struck it out pursuant to rule 9.75 of the CPR. I order cost against the claimant on the standard basis. Right of appeal.
Representation:	Mr Robert Firigeni for the Claimant Mr Wilson Rano
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007,r2.2, 9.75,S 8.19Limitaion Act S 37,
Cases cited:	Osiramo v Aeounia [2007] SBHC 61;Aeounia v Osiramo [2008] SBCA 5, Osiramo v Aeounia [2016] SBHC 169, Tikani v Motui [2002] HCSI 10,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 110 of 2019

BETWEEN

JOHN OSIRAMO
(Representing Arabala-Kwarulilia Tribe)
Claimant

AND

MEZACK AEOLINIA
(Representing Augiria-A’a Trine)
First Defendant

AND

LESLIE OSIMAE (DECEASED) & LEONARD SASAI
(Representing Augiria Tribe)
Second Defendant

Date of Hearing: 12 July 2023
Date of Decision: 27 July 2023

Mr Robert Firigeni for the Claimant
Mr Wilson Rano for the Defendant
Mr David Lidimani for the Second Defendants

Ruling on application to strike out

Bird PJ:

1. In this case, the claimant filed a Category A claim on the 7^th March 2019 pursuant to rule 2.2 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). On the 30^th July 2020, two applications to strike out the claim pursuant to 9.75 of the CPR were filed by Mr Rano of Rano & Company and Mr Lidimani of DBL Lawyers. Both of the applications remained on file without being heard until today.
2. By order dated 9^th September 2020, a third party was joined as defendants in this cause. An amended claim was filed on the 17^th November 2021 and the second defendants were joined as a party to this case. The filing of that amended claim is an issue during this hearing. To date no defences were filed on behalf of the first and second defendants because of the outstanding applications under rule 9.75 of the rules.
3. Mr. Rano of counsel for the first defendant relied upon his application filed on the 30^th July 2020. It is submitted that the claim that is relevant in his application is the one that was filed on the 7^th March 2019. It is further submitted that the amended claim purported filed on the 17^th November 2021 is not effective and should not be part of the pleading in this proceeding because it was filed without consent of the first and second defendants. It was also filed without leave of the court.
4. It is submitted by counsel that the issue between the claimant and the first and second defendants is one of boundary. The dispute is not on the ownership of the subject land. It is further submitted that the very same issue was agitated by the same claimant in CC364/06. That case was struck out by this court for want of prosecution. It is an abuse of the process of the court to re-litigate the very same issues that were already struck out by the court earlier. It is further argued that the claimant’s claim does not disclose a reasonable cause of action. It is therefore the first defendant’s application that this present proceeding be struck out pursuant to rule 7.95 of the CPR.
5. Mr Lidimani for the second defendant relies upon his written submission which was tendered in court. In order to assist the court, Mr Lidimani also handed up copies of three previous cases involving these same parties. They are:
   1. Osiramo v Aeounia [2007] SBHC 61; HCSI-CC 364 of 2007;
   2. Aeounia v Osiramo [2008] SBCA 5; CA CAC 29 of 2007; and
   3. Osiramo v Aeounia [2016] SBHC 169; HCSI CC 364 of 2006.
6. In his submission, Mr Lidimani relied upon the following documents namely:
   1. Sworn statement of Leslie Osimae filed on 30 July 2020;
   2. Sworn statement of Leonard Sasai filed on 6 March 2023;
   3. Sworn statement of Andrew Maelaua filed on 6 March 2023.
7. Mr Lidimani had also set out the chronology of material facts between the parties as :

24 October 1975- The Native Court in Land Case No. 1 of 1975 awarded ownership of Augiria land to the 2^nd defendants as against the claimant party;
1 – 3 March 2005 – The Aimela House of Chiefs, upon referral by the High Court in CC No. 20 of 2000, made a determination as to the boundaries of Augiria customary land and awarded ownership to the 2^nd defendants as against the claimant;
26 February 2006 – The High Court gave its ruling in CC 20/2000 by removing injunction orders against the 2^nd defendants in terms of royalties from logging operations within Augiria. The court sanctioned the Aimela Chiefs determination of the 3 March 2005;
12 September 2006 – The claimant filed claim for judicial review in CC 364/06 seeking to quash the Aimela Chiefs determination. Due to time elapsed for the 2^nd defendants to plead fraud against the purported decision relied upon by the claimants, the court granted the relief sought by the claimant;
18 July 2008 – The Court of Appeal quashed the orders of the High Court in CC 20/20 and remitted the matter for rehearing by the High Court;
9 August 2011 – Civil Case No. 364 of 2006 was filed by the claimant for judicial review was struck out for want of prosecution;
26 September 2014 – land acquisition determination of Takaasai tower site within Augiria customary land was made in favour of the 2^nd defendants. That determination was appealed by the claimant to the Magistrate Court in Appeal Case No. 30 of 2014;
26 May 2015 – The Auki Magistrate Court found in favour of the 2^nd defendants. No further appeal was made by the claimant;
5 July 2016 – The claimant filed application for reinstatement of CC No. 364 of 2006. The court refused the application in its ruling of 30 September 2016 on the basis of section 37 of the Limitation Act.
7 March 2019 – The claimant filed this current proceeding

8. After setting out the chronology of events, Mr Lidimani argues that the claimant had multiple opportunities to challenge the 2^nd defendants’ ownership and boundary of the disputed land. The first opportunity was when this court in CC 20/20 had sanctioned the Aimela House of Chiefs determination. The claimants could have lodged a referral to the Malaita Local Court but he did not.
9. It is submitted that second chance was 2015 after his appeal against an acquisition proceeding was refused. The claimant could have appealed to the High Court but did not. The third opportunity arose when he should have re-prosecuted CC 364/06 but did not. He could have challenged the struck out notice as well but did not. The other option he could have utilised was to appeal the refusal of by the court to reinstate CC 364/06 on 30 September 2016 but he also did not. It is therefore submitted on behalf of the second defendants that the claim of the claimant should be struck out.
10. In his submission in response, Mr Firigeni of counsel for the claimant relies upon the following documents namely:
    1. Claim filed on 7 March 2019;
    2. Sworn statement of Michael Maetarau Osiramo filed on 24 May 2019;
    3. Further sworn statement of Michael Maetarau Osiramo filed on 31 May 2019;
    4. Amended claim filed on 17 November 2021;
    5. Sworn statement of John Osiramo filed on 17 July 2022;
    6. Sworn statement of John Maetia Bare filed on 23 February 2023;
    7. Sworn statement of Francis Dikote’e filed on 14 March 2023; and
    8. Sworn statement of Leslie Osiramo filed on 30 July 2020.
11. In respect of the application of the first and second defendants, it is submitted by Mr Firigeni that in a strike out application, the court must be minded to take note of the principle set out in the case of Tikani v Motui [2002] SBHC 10; HC-CC 029 of 2018. In that case, the court was of the view that in such applications, no evidence is admissible and the court can look at the pleadings and particulars. It follows on that the discretion to strike out should only be exercised in plain and obvious cases and where no reasonable amendment would cure the defect. It is also argued that this type of application is only appropriate if it is clear that the statement of claim as it stands is insufficient, even if proved to entitle the plaintiff to what he/she claims. Mr Firigeni further submits that a reasonable cause of action basically means a cause of action with some chance of success or where a tenable case has been disclosed for the relief sought. It further follows that for as long as the statement of case discloses some cause of action, or raises some question fit to be decided by trial, the mere fact that it is weak and not likely to succeed is no ground for striking out.
12. Having stated the principles in this type of application, it is argued by counsel that his client’s amended claim filed on the 17 November 2021 is a reasonable cause of action that the court must determine at trial. It is however conceded by Mr Firigeni in his submission that the filing of this current proceeding was a direct consequence of the striking out order of CC364 of 2006 and the refusal by this court to re-instate it. See paragraphs 28 to 31 of his submission.
13. It is submitted on behalf of the claimant that Land Case 25/1954 annexed to as JOI, Civil Land Case No. 1/1975 exhibited as JO 2 and Civil Land Case No. MD/LAC/77 exhibited as JO3 in the sworn statement of Michael Maetarau filed on the 24^th May 2019 would confirm that the claimant owned Arabala land. It is further submitted that the boundary of the disputed land has been determined by the Malaita Customary Land Appeal Court in Civil Land Case No. MD/LAC/77. It is therefore the claimant’s position that the above cases have conclusively settled the issue of ownership and boundary as between the claimant’s Arabala/Kwarulilia tribe as against the defendants’ Augiria tribe.
14. It is also the claimant’s case that HCC No. 20 of 2020 was a case for trespass into Arabala land. That case in effect would have issues of boundary between the parties. That is conceded by Mr Firigeni in paragraph 26 of his submission.
15. It is also conceded by Mr Firigeni that his client’s application to set aside the decision of the Aimela House of Chiefs in 2005 was unsuccessful when CC 364/06 was struck out and not reinstated by this court. In light of that position, the 2005 Aimela House of Chiefs determination is a valid one. That decision favours the second defendants in this case. It is nonetheless submitted by Mr Firigeni that his client’s claim filed on the 7^th March 2019 and the amended claim filed on the 17^th November 2021 discloses a reasonable cause of action and this matter should proceed to trial of the issues raised in those claims as per the principles enunciated in the cases that he relies upon in his written submission.
16. The claimant’s claim filed on the 7^th March 2019 seeks the following orders namely:
    1. An order declaring that the ownership of Arabala customary land, as between the Arabala Kwarulilia tribe, whom the claimant represents, and the Augiria Aa’a tribe, whom the defendants represents, has been finally and conclusively settled by the CLAC Decree of 15/7/77;
    2. A consequential order declaring that the ownership and boundary of Arabala land as between the parties is res judicata;
    3. The defendants, his line, relatives, wantoks, agents and any person acting with or under their permission is permanently restrained from entering Arabala land for purposes of claiming ownership or carrying out any undertaking for economic gain within Arabala land;
    4. Costs
    5. Such other orders the court deems fit to make.
17. On the other hand the amended claim filed on the 17^th November 2021 only had only sought two orders namely:
    1. An order that the ownership of Arabala customary land, as between the Arabala/Kwarulilia tribe, represented by the claimant, and Augiria Aa’a tribe, whom the defendants represent had been finally and conclusively settled in Land Case 15/1954, or in Land Case 1/1975 and or in CLAC Decree in 1977;
    2. Cost of this proceeding pursuant to the rules.
18. Because of the two outstanding application to strike by the first and second defendants both filed on the 30^th July 2020, there has been no defence filed by either defendants to this date. It is beyond me why the court had not listed these applications since the date of filing until today. The applications were just lying on file for about three years, notwithstanding the matter was called several times by the court. This is an appalling situation when lawyers are not put to task to deal with their disputes before the court expeditiously.
19. As mentioned above, an amended claim was filed by the claimant on the 17^th November 2021 and I will have to ascertain from the file whether that amended claim is effective. Upon pursuing the file, I have seen an order of the court dated 30^th July 2020 and perfected on the 31^st July 2020. That order was to the effect that person namely Dick O’omara, Wilson Maekarasia, Daniel Ilu Afia and Paul Kwasaimanu were to be joined as claimants. A consequential order was for the claimant to file their claim within 14 days. The 14 days is deemed to have lapsed on the 13^th August 2020. By that date, the claimant had not filed any further claim. The amended claim was filed on the 17^th November 2021 about I year and 4 months after the order of the 30^th July 2020. Furthermore, the names of four (4) other claimants who were supposed to have been joined were not joined in that amended claim. This court was not even informed by of the lawyer appearing before me about that order.
20. It is obvious from the above facts that Mr Firigeni of counsel for the claimant had not complied with the orders of the court dated 30^th July 2020 and perfected on the 31^st July 2020 and therefore I am entitled to use my discretion under rule 8.19 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) to strike out the claimant’s amended claim filed on the 17^th November 2021. The only claim of the claimant before this court in this proceeding would therefore be the claim filed on the 7^th March 2019.
21. It is the joint submission of counsel for the first and second defendants that the issue between the two disputing tribes to this proceeding is one of boundary. The claimants have two courts decisions in their favour being Land Case 1/1975 and or in CLAC Decree in 1977. The defendants also have court decisions in their favour which are outlined in paragraph 7 above.
22. With the above position, this court is not in any position to deal with the orders sought by the claimant. It is obvious that the issue of boundary of the land in issue is a live issue in this case and this court lacks the jurisdiction to determine that issue. I am further unable to deal with the issue of res judicata because of the various conflicting court decisions in favour of the claimant party and those in favour of the defendants’ party.
23. I can say that there indeed is an ongoing dispute between the claimant party and the defendants’ party but I do not think, this is the appropriate forum to deal with the dispute. As the case stands, I am of the view that the principle of res judicata is not available to the claimant because of the conflicting previous court decisions mentioned in this ruling. Consequently, I am further of the view that the claim of the claimant filed on the 7^th March 2019 as it stands do not disclose a reasonable cause of action fit for this court to try and I struck it out pursuant to rule 9.75 of the CPR. I order cost against the claimant on the standard basis. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge