Kile v Attorney General [2023] SBHC 94; HCSI-CC 45 of 2021 (4 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kile v Attorney General
Citation:
Date of decision:	4 August 2023
Parties:	Nelson Kile and Lawrence Kile v Attorney General, Johnson Vunagi
Date of hearing:	13 July 2023
Court file number(s):	45 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	I am satisfied that the Notice of Appeal raises legitimated legal issues for the Court to determine, thus the Court must consider them at a trial proper. On that basis the Application is dismissed with cost against the Applicant to assess if not agreed.
Representation:	Appellant in Person Bula for the First Respondent Rano W for the Second Respondent t
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule, r9.75, r9.76 Land and Titles Act S 256 , S 255 (6)
Cases cited:	Lagobe v Lezutuni [2005] SBHC 59, Tikani v Motui [2000] SBHC 10, Wenlock v Moloney [1965] 1 WLR 12

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 45 of 2021

BETWEEN

NELSON KILE AND LAWRENCE KILE
Claimant

AND:

ATTORNEY GENERAL
First Defendant

AND:

JOHNSON VUNAGI
Second Defendant

Date of Hearing: 13 July 2023
Date of Ruling: 4 August 2023

Appellant in Person
Bula for the First Respondent
Rano W for the Second Respondent

Ruling Application to Strike out Notice of Appeal

This is an application of the second Respondent to strike out the Amended Notice of Appeal filed on 6^th August 2021 on the bases that it was an abuse of the process of the Court, is frivolous and vexatious and that it disclose no reasonable cause of action.

The Applicant consequently seek an order pursuant to rule 9.75 of the Solomon Islands ( Civil Procedure) Rules 2007 and section 256 of the Lands and Title Act, that the Amended Notice be dismissed and cost on indemnity basis paid by the Appellant jointly.

The Appellant first filed a Notice of Appeal on 2^nd February 2021. On 6^th June 2021 the Appellant filed an Amended Notice of Appeal. The Amended Notice of Appeal grounds are,

1. The First Respondent mistakenly and misapplied the common law principle of res judicata making its decision on 23^rd November 2021, contrary to section 16 of the Local Court Act and Schedule 3 to the Constitution, paragraph 2, thereof as applied by the High Court in Lagobe v Lezutuni, in its judgment dated 14^th April 2005, in case No. 126 of 2004.
2. The First Respondent had mistakenly allow Mr Michael Holara, a lawyer to be present and assisting Christian Vungai for the Respondent, contrary to section 255 (6) of the Lands and Title Act as he did in the Isabel Local Court as spokesman being influence on the Local Court in applying res judicata and breaching another Common law principle of functors officio on which the First Respondent refuse to rule.

Orders to strike out claim

Applications to strike out claims or proceedings are covered under the provision of Rule 9.75 and 9.76 of the SI Courts (Civil Procedure) Rules 2007. I consider the rules apply to any proceeding including Notice of Appeals. Rule 9.75 stated 3 situations where the Court can order a proceeding to be struck out, they are;

(a) The proceedings are frivolous or vexatious; or
(b) No reasonable cause of action is disclosed; or
(c) The proceeding is an abuse of the process of the court.

The powers of the Court to strike out proceeding are discussed in Tikani v Motui [2000] SBHC 10, HC- CC 29 of 2001 in which his Lordship, Palmer J as he then was referred to Wenlock v Moloney [1965] 1WLR 12, where it was said “ the Court should only exercise its discretion to strike out in plain and obvious cases

In the present case the Isabel Customary Land Appeal Court held that the Appeal is res judicata in view of Palmer V Vunagi in land case No 1 of 1999. In that proceeding the ICLAC found that the main issue in both cases is the ownership of Varei Customary Land contest between the Hobre tribe and Taraoa Tribe.

The Applicant says that no matter how one chooses to compare the two cases, the similarities are the same. It was a dispute between Hobrae tribe and Taraoa tribe. It concerns the Ownership of Varei customary land and issues pertaining to James Kaiputi. In effect what the respondent is saying is that the issues are the same, parties are the same.

The Appellant in its Notice of Amended Appeal challenges the ICLAC on its ruling on the issue of res judicata and the involvement of Mr Michael Holara in the ICLAC proceeding.

I believe what the Applicant is saying is that the ICLAC had made a correct decision on the issue of res Judicata. Whether the ICLAC may made a correct ruling is not an issue at this point, the Appellant is alleging that the decision is wrong and has made it as a point of appeal.

The Court can only strike out the Notice of Appeal if it frivolous or vexations or show no reasonable cause of action such as when the Notice of Appeal is not on a point of law. In this case the Appeal Notice raises question about the legality of the ICLAC decision on a point of law thus it cannot be said that the proceeding is frivolous or vexatious or show no reasonable cause of action or is an abuse of the process of the Court.

I am satisfied that the Notice of Appeal raises legitimated legal issues for the Court to determine, thus the Court must consider them at a trial proper. On that basis the Application is dismissed with cost against the Applicant to assess if not agreed.

The Court
Emmanuel Kouhota
Puisne Judge