Rupakana v Niqe [2024] SBHC 129; HCSI-CC 658 of 2020 (1 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Rupakana v Niqe
Citation:
Date of decision:	1 March 2024
Parties:	Graham Rupakana, Anthony Pitakaka, David Totoka, Samson Leketo, Ralph Pitakia and Samson Qalo v John W Niqe, Maximum International Limited, Attorney General, Comptroller of Customs & Excise Division
Date of hearing:	13 February 2024
Court file number(s):	658 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	Since no leave for extension of time was granted the claim for Judicial Review is struck out as it was filed out of time. Cost against the Claimant to be taxed if not agreed.
Representation:	Tesua S for the Claimant To’ofilu J for the 1st and 2nd Defendants AG for the 3rd, 4th, 5th & 6th Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r15.3.8, r9.75, r15, 15.3.9
Cases cited:	Rupakana v Vozoto [2016] SBHC 215, Rupakana v Vozoto [2017] SBCA 8

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 658 of 2020

BETWEEN

GRAHAM RUPAKANA, ANTHONY PITAKAKA, DAVID TOTOKA, SAMSON LEKETO, RALPH PITAKIA AND SAMSON QALO
(Representing their respective clans within Borovai tribe)
Claimants

AND:

JOHN W NIQE
1^st Respondent/Defendant

AND:

MAXIMUM INTERNATIONAL LIMITED
2^nd Respondent /Defendant

AND:

ATTORNEY GENERAL
(Representing the western Customary Land Appeal Court)
3^rd Respondent/Defendant

AND:

ATTORNEY GENERAL
(Representing the Choisuel Provincial Executive)
4^th Respondent/Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
5^th Respondent/Defendant

AND:

COMPTROLLER OF CUSTOMS & EXCISE DIVISION
6^th Respondent/Defendant

Date of Hearing: 13 February 2024
Date of Ruling: 1 March 2024

For the Claimant: Tesua S
For the 1^st & 2^nd Defendants: To’ofilu J
For the 3^rd, 4^th, 5^th & 6^th Defendant: AG

RULING ON APPLICATION TO STRUCK OUT A CLAIM FOR JUDICIAL REVIEW

Kouhota PJ
Background

On 8^th October 2017, the Western Customary Land Appeal Court (WCLAC) uphold a decision of the Choiseul Provincial Executive of March 2017 in which the Executive reject and refuse to grant timber rights to the First and Second Defendants. Then on 17^th November 2017 the WCLAC in an appraisal judgment reverse its decision and grant timber right to the First and Second Defendant.

The Claimant on 17th April 2023 filed an application for a claim for Judicial Review of that decision. It is not clear if the Claimant had file an application for leave to file a claim for judicial Review out of time. The Claim for Judicial Review was filed 5 years and 5 months after the WCLAC judgement. I find no application for extension of time in the file but if there was, the application has not been moved.

This application is an application by the First Respondent to strike out that claim for Judicial Review on the basis of his ownership of Borovai Customary land based on the decision of Batava Council of Chiefs decision in 2005, the decision in the case of Rupakana v Vozoto [2016] SBHC 215, HCSI-CC 35 of 2016 and the decision of the Court of Appeal in Rupakana v Vozoto [2017] SBCA 8; SICOA 1 of 2017 (13^th October 2017). Because of the above Court decisions the First and the Second Respondent says that the Claimant lacks Locus standi to challenge the Respondent over the ownership of Borovai Customary land. Counsel in his submission also referred to Rule 15 .3.8 that the claim was filed 5 years and 5 months after the WCLAC judgment.

Counsel for Applicant in his submission refer to the above mentioned Court decisions which were all in favour of the First Respondent. Counsel also made submission that claim for judicial review was filed after 5 years and 5 months and that no leave was granted to file claim for Judicial Review out of time under Rule 15.3.8. I think this point is relevant to the application. Counsel also submit that Claimants appeal against the Batava Counsel of Chiefs is out of time so the Local decision on 17^th July 2005 still stands. The Respondent therefore ask the Court to strike out the claim under Rule 9.75 and Rule 15.3.8

While I appreciate that all claims including claims for judicial review can be struck out under Rule 9.75 of the Rules. I consider that Rule 15 of Solomon Islands Court Civil Procedure Rule 2007 specifically deal with claims for Judicial Review, therefore I think applications to struck a claim for Judicial Review should be made and considered under Rule 15 CPR.

Rule 15.3.8 states,

“A claim for a quashing order must be made within 6 months of the decision”.

Rule 15.3.9 States”

“The court may extend time within or outside of the prescribe period for making a claim if it is satisfied substantial justice requires it”

I noted that the Claimants claim for Judicial Review is seeking quashing orders to quash the judgment of the Western Customary Land Appeal Court in CLAC dated 17^th November 2017 in Case No. 8/17. The claim for Judicial Review was filed on 17^th April 2023. That is 5 years and 5 months after the WCLAC judgment.

Counsel for the Claimant/Respondent made no submission on Rule 15.3.8 but concentrate her submission on previous cases relating to the land in disputed land and locus standi. These are issues not relevant to a claim for judicial review.

I had checked the file and found no orders granted for extension of time to file the claim out of time. In view of this by virtue of Rule 15.3.8 the claim was out of time as the Court did not grant extension of time for the Claimant to file the claim for Judicial Review out of time. I had considered the claim and noted that the WCLAC judgment is a judgment the Appellant should have appealed to the High Court but I suspect the claim for Judicial Review was filed because the Claimant was not able to file the appeal in time. This is a course I had often seen taken by Counsels in a number of cases but it is an abuse of the process of the Court.

Since no leave for extension of time was granted the claim for Judicial Review is struck out as it was filed out of time. Cost against the Claimant to be taxed if not agreed.

THE COURT
Justice Emmanuel Kouhota
Puisne Judge