Noubela v Attorney General [2024] SBHC 54; HCSI-CC 561 of 2021 (8 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Noubela v Attorney General
Citation:
Date of decision:	8 March 2024
Parties:	Melevi Noubela v Attorney General
Date of hearing:	5 March 2024
Court file number(s):	561 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	1. The claim is struck out in its entirety 2. Cost against the Claimant/Respondent on indemnity basis. 3. Cost against Counsel for the Claimant/Respondent on indemnity basis.
Representation:	Mr Iroga J for the Claimant/Respondent Mr Pitry B for the 1st, 2nd, 3rd 4th and 5th Defendant/Applicant
Catchwords:
Words and phrases:
Legislation cited:	Limitation Act 1984 S 9 (2)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 561 of 2021

BETWEEN

MELEVI NOUBELA
Claimant

AND:

ATTORNEY GENERAL
(Representing Ministry of Communication and Aviation)
1^st Defendant

AND:

ATTORNEY GENERAL
(Representing Ministry of Infrastructure Development)
2^nd Defendant

AND:

ATTORNEY GENERAL
(Representing Ministry of Lands)
3^rd Defendant

AND:

ATTORNEY GENERAL
(Representing Ministry of Registrar of Titles)
4^th Defendant

AND:

PREMIER OF TEMOTU PROVINCE
(Representing the Temotu Province, Registrar of Titles, Attorney General)
5^th Defendant

Date of Hearing: 5 March 2024
Date of Ruling: 8 March 2024

For the Claimant/Respondent: Iroga J
For 1^st, 2^nd, 3^rd, 4^th & 5^th Defendant: Pitry B

RULING ON APPLICATION TO STRIKE OUT A CLAIM

Kouhota E

The Claimant on 5^th October 20221 file a category A against the Defendants seeking the following reliefs;

1. A declaration that the acquisition and registration of Perpetual Estate in parcel number 266-002-1 in the name of the Commissioner of Lands is null and void ab-initio.
2. A declaration that the land comprised Perpetual Estate No. 266-002-1 remains customary land and is owned according to customary land tenure.
3. Alternatively to order 1 and 2 herein, an order that the Commissioner enters into a lease and sales agreement with the Claimants for usage of Perpetual Estate in parcel No. 266-002-1 for the airport.
4. An order that the First, Second, Third and Fourth Defendants pay damages to be assessed.
5. Cost on increased and indemnity basis pursuant to the Courts Rules including cost of and incidental to this proceeding.
6. Such further orders as the Court sees fit to impose.

On 2^nd March 2022 the Defendants filed an application to strike out the claim pursuant to Rule 9.75 to the CPR proof on the basis that the claim is frivolous vexatious and discloses no reasonable cause of action and is an abuse of the process of the Court on the basis;

1. That claim is statute barred under section 9 (2) of the Limitation Act 1984.
2. The Applicant seeks cost on indemnity basis against the Claimant/Respondent
3. Cost against Counsel for the Claimant/Respondent on indemnity basis;
4. Such further orders as the court may think fit.

By order of the Court perfected on 16^th February 2024, it was ordered that Counsel for Claimant filed and serve his submission by 22^nd February 2024 and Counsel for the Defendant to file his submission in response by 29^th February 2024. Court also order that it will determine the application to stuck out even if counsel for the Claimant fail to file and serve his submission.
Counsel for the Claimant fail to comply with the direction orders but Counsel for Defendant/Applicant did filed his submission. Counsel for the Claimant also did not turn up in Court at the hearing of the application. The Court therefore proceeded to determine the application to struck out the claim.
I had read the statement of the case and it seem that the issues which the claim is about, such as the acquisition and registration of the Perpetual Estate in parcel No 266-002-1 were done in 1969. These facts were also confirm in the sworn statement of Mr James McNeil the Commissioner of lands in his sworn statement filed on 2^nd March 2022. Based on the materials before the Court and the evidence of the Commissioner of lands, the claim is clearly out of time and is statute barred under section 9(2) of the Limitation Act, 1984
Section 9(2) 1984, states “No action shall be brought, nor any arbitration shall be commenced, by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him or, if it accrued to some person through whom he claims, to that person”.
I had consider the application and Counsel for the Applicant’s submission and I am satisfied the claim is clearly statute barred thus the claim is obviously frivolous vexatious and discloses no reasonable cause of action and is an abuse of the process of the Court. For these reasons the claim must be struck out.
This is a claim that should have never being brought. If Counsel representing the Claimant/Respondent is vigilant he should on the spot noticed that the instructions he was getting were in relation to issues and a matter that are clearly time barred. In view of this I order cost against the Claimant/Respondent on indemnity basis. I also order cost against Counsel for the Claimant/Respondent on indemnity basis.

Orders

1. The claim is struck out in its entirety
2. Cost against the Claimant/Respondent on indemnity basis.
3. Cost against Counsel for the Claimant/Respondent on indemnity basis.

THE COURT
Justice Emmanuel Kouhota
Puisne Judge