Bwagi v Bwau [2024] SBHC 114; HCSI-CC 304 of 2023 (17 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Bwagi v Bwau
Citation:
Date of decision:	17 September 2024
Parties:	Richard Bwagi, Nathan Ngariapu, Samuel Mwara, Emmy Campell Dominic Taro Duddley Wagoteha and PeterBonai, Edmond Mehare v Mathew Bwau, Ben Wasimwane, Moses Oli & Norman Mehare, Elison Roy Haga and Humphery Rumutaghimae
Date of hearing:	19 August 2024
Court file number(s):	304 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	The application is granted and the claim is struck out. Cost against the Claimant to be taxed if not agreed.
Representation:	Balea S for the Claimant/ Respondent Kwana L for the Defendant/Applicants
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 15.3.8, Limitation Act [cap 18]
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 304 of 2023

BETWEEN

RICHARD BWAGI, NATHAN NGARIAPU, SAMUEL MWARA, EMMY CAMPELL DOMINIC TARO
DUDDLEY WAGOTEHA AND PETERBONAI
(Trustee of Hunahgaehau Land)
First Claimants

AND

EDMOND MEHARE
(Land owner of Bweana land)
Second Claimants
AND:

MATHEW BWAU, BEN WASIMWANE, MOSES OLI & NORMAN MEHARE
First Defendants

AND:

ELISON ROY HAGA AND HUMPHERY RUMUTAGHIMAE
Second Defendants

Date of the Hearing: 19 August 2024
Date of Ruling: 17 September 2024

Balea S for the Claimant/Respondent
Kwana L for the Defendants/Applicants

RULING ON APPLICATION TO STRIKE OUT CLAIM

Kouhota PJ

The Claimant on 23/6/2023 file a category A claim against the Defendants seeking the following orders,

1. A declaratory, order that the boundary of the Beana Customary Land has already been surveyed in the Local Court in LC N0. B/3/113 hence its boundary has already been settled accordingly in Law.
2. A further declaratory order that the boundary dispute hearing of Beana and Hunagaehau Customary Lands on 19^th July 2018 ( a one sided hearing) by the Bauro Council of Chiefs effectively altered the settled boundary as afore stated in paragraph 1 above and therefore that a new boundary created by the Bauro Chiefs is null and void and lacks legal effect.
3. A further declaratory order that the Hungaehau Land was never in the Makira/Ulawa Provincial Executive Timber Rights hearing on 8^th August 2016, and that there was no appeal against the determination of the Executive Timber Rights hearing on 8^th August 2016, and that there was no appeal against the determination of the Executive hence the ownership of Hunagaehau Land is as well settled in law.
4. A declaratory order that the decision of the Bauro Council of Chiefs (ward 11) on 6^th December 2021 has settled the ownership and boundary of Hunagaehau Land and that the finding of the said Chiefs is consistent with the finding of the Local Court of the boundary of Hunagaehau/Beana Land dispute on 5^th April 1988.
5. If the Court grants the orders sought in paragraph 1, 2, 3 and 4 above, a consequential order that the boundary of the Beana Land as stated in the Local Court in LC N0. B/3/113 is valid and of Legal effect.
6. Permanent injunction, restraining the First and Second Defendants by themselves, relatives, servants and/or agents and from re-entering the Hunagaehau Land or any part thereof, for any purpose, whatsoever, unless by express consent of the Claimants.
7. Mesne profits, to be assessed
8. Cost against the Defendant; and
9. Any such orders as may be appropriate to the circumstances.

Now before the Court is an application by the defendant to strike out the claim on the following grounds;

1. The declaration or relief sought in the claim in effect amounts to Judicial Review claim and as such ought to be brought within time period of 6 months as required under rule 15,3,8 of the Solomon Islands Courts (Civil procedure) Rules 2007 and Limitation Act [Cap 18].
2. That the relief sought in respect of Bauro Council of Chiefs’ determination dated 30^th July 2018 is an abuse of the process of Court because a referral made by the 1^st Claimants in respect of that Chief’s determination is currently pending before the Makira/Ulawa Local Court. Not only that but ruling dated 4^th December 2018 in Civil Case Number 162 of 2018 had deliberated on that subject chief’s decision. That is to say, it is also the subject matter, among others, of High Court Civil Case Number 162 of 2018.
3. That the issue as to the ownership and boundary of Hunagaehau Customary Land is still before the Chiefs being the subject matter of Ward in Bauro Council of Chiefs decision dated 28^th March 2022, and a further subject matter of the High Court Judicial Review proceeding Civil Case Number 114 of 2022.
4. That further seeking declaratory reliefs in respect of Decision or Judgement of Makira Local Court in LC No B/3/114 of 1998 and subsequently CLAC in Land Case B/3/113 are barred and caught up by the time limitations.
5. That these issues are also the very subject matter of High Court Civil Case Number 449 of 2019 filed by the same First and Second Claimants. That proceeding is listed for hearing on 25^th October 2023 pursuant to an Application to Strikeout filed by the same Defendants in this proceeding. First and Second Claimants have ignored that proceeding and went further to commence this proceeding without giving any thoughtful consideration as to what they have instructed their solicitor in CC. N0.449 of 2019. They seem to completely forget about that proceeding. This amount to duplication of proceedings which affects the same parties and over the very same issues.
6. The Claimants grass hopping conduct or attitude without having any regards to the rules of procedure and law amounts to abuse of process and is vexatious and frivolous.
7. On the above basis, the Applicant prays that the reliefs sought in this application be granted with cost.

I had consider the application and the submission of counsel for the applicant and agreed with the submission of counsel for the Defendant. In view of the counsel for the Claimant not present to defend the application, I considered the application is uncontested hence, I accept the application. The application is granted and the claim is struck out. Cost against the Claimant to be taxed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge