Kovelau v Tola [2024] SBHC 69; HCSI-CC 485 of 2023 (16 July 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kovelau v Tola
Citation:
Date of decision:	16 July 2024
Parties:	Serah Kovelau v Peter Tola, Guadalcanal Local Court
Date of hearing:	3 July 2024
Court file number(s):	485 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
On appeal from:
Order:	1. Grant application to strike out the entire proceeding under rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007. 2. Consequently, the entire proceeding is dismissed under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007. 3. Cost of this hearing is to be paid by the Claimant to the First Defendant on standard basis.
Representation:	Mr. F. Samani for the Claimant Mr. N. Sariki for the First Defendant No appearance for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007, r9.75,r 9.75 (c) Local Court Act, S 12, Constitution S 77
Cases cited:	Majoria v Jino [2007] SBCA 153, Alemaesia v Agola [2009] SBHC 2

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 485 of 2023

BETWEEN:

SERAH KOVELAU
Claimants

AND:

PETER TOLA

First Defendant

AND:

GUADALCANAL LOCAL COURT

Second Defendant

Date of Hearing: 3 July 2024
Date of Ruling: 16 July 2024

Mr. F. Samani for the Claimant
Mr. N. Sariki for the First Defendant
No appearance for the Second Defendant

RULING ON STRIKE OUT OF CLAIM APPLICATION

AULANGA PJ

1. The purpose of striking out or for dismissal of a claim under rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“CPR”) is to avoid the Court hearing a claim that is frivolous and vexatious; or is disclosing no reasonable cause of action; or is amounting to an abuse of the Court’s process. Once any of these grounds is established, it will result in the dismissal of the proceeding, either in part or whole.
2. This case involves a claim for the High Court to refer a dispute over the boundary of the Tetere customary land in the Guadalcanal Province for the Local Court for determination. The claim also seeks that once the boundary determination is done by the Local Court, it should be incorporated into or formed part of a 1993 Local Court decision. The 1993 Local Court decision in fact awarded the ownership of the Tetere customary land to the Claimant.
3. First Defendant applies to strike out the claim on the basis that the High Court had already dealt with this matter in HCSI CC No. 202 of 2012 by referring the boundary dispute of the Tetere customary land to the Chiefs from that locality. In that case, the Claimant and the First Defendant were the parties. The Chiefs already made the determination in favour of the First Defendant’s party. The Claimant, however, did not refer the dispute to the Local Court to dislodge the findings made by the Chiefs which constitute acquiesce on her part. Therefore, by commencement of this matter afresh for the same or similar referral order, is considered as an abuse of the Court’s process.

HCSI CC No. 202 of 2012

4. On 23^rd August 2017, the High Court in HCSI CC No. 202 of 2012 made a referral order for Serah Kovelau (as Claimant) and Peter Tola, James Sekani, Vitarian Hokeni and Peter Poso (as Second Defendants) to resolve the boundary dispute of the Tetere customary land before the Chiefs from that locality. That dispute then was adjudicated by the Ghaubata Council of Chiefs (“GCC”).
5. On 17^th October 2017, the GCC determined the boundary in favour of the Defendants. It was a one-sided hearing where only the Defendants’ party attended. The Claimant, however, did not attend the hearing but preferred to have a reconciliation with the Second Defendants. The Second Defendants refused and preferred to allow the GCC to make the boundary determination as ordered by the High Court.
6. The Claimant did not refer the findings of the GCC to the Local Court since 2017, but decided to file the current case to the High Court for an order compelling the Local Court to decide on the boundary of the Tetere customary land, a similar referral order that was granted on the 17^th October 2017 by the High Court.
7. On 15^th August 2018, HCSI CC No. 202 of 2012 returned for mention at the High Court for progress update on the referral of the boundary dispute matter to the Chiefs. Due to the Claimant’s noncompliance with the Court’s directions, the matter was struck out pursuant to rule 9. 13 of the CPR.

Present Proceeding HCSI CC No. 485 of 2023

8. The Claimant knew well of the existing High Court Strike Out Order, yet she decided to file this proceeding afresh, seeking referral of the boundary of the Tetere customary land to the Local Court for survey and formal customary determination.
9. In my view, this ruling hinges on this main issue. That is, whether this Court can order the Local Court to do survey of the Tetere customary land upon request of the Claimant who fails to refer the dispute to the Local Court following the Chiefs determination made pursuant to the Local Court Act.

Court’s findings

10. The history of the case uncovered that the issue of boundary of the land was never an issue since the 1993 Local Court decision and even up to the 1994 High Court case between Serah Kovelau and James Kogana in LCA 2/94. In fact, the issue then was about who should be the customary owner of the Tetere customary land and not about its boundaries. The Claimant concedes to this as the status of the case up to 1994.
11. Not until 23^rd August 2017 in HCSI CC No. 202 of 2012, that the boundary dispute of the Tetere land has come to light. As a result, the High Court then correctly referred the matter for the Chiefs from that locality to determine the boundary dispute of the Tetere customary land between the parties herein.
12. In October 2017, the GCC then determined the boundary as ordered by the High Court. The Claimant refused to attend the hearing and instead preferred to have a reconciliation with the Defendant. The GCC decided to determine the boundary and made a customary determination or findings of the boundary in favour of the current Defendant’s party.
13. The Claimant through counsel submitted in Court that the GCC has changed the name of the disputed land from Tetere to Masa during its determination. Clearly, that should be a ground for the Claimant to refer the dispute to the Local Court for further hearing whether on the purported change of name of the land including the issue of the boundary. However, she decided not to refer the dispute to the Local Court which is unfortunate. This means, in line with the authority in Majoria v Jino [2007] SBCA 153, she has accepted to be bound by that GCC decision. Therefore, by failing to refer the dispute to the Local Court pursuant to section 12 of the Local Court Act, the Claimant cannot come to this Court for an order for the Local Court to resurvey the boundary of the Tetere customary land on the basis of acquiesce.
14. Further, the Claimant’s own conduct for failing to attend to the Chief’s hearing without good reason is also worth mentioning. In fact, the High Court has generously afforded the opportunity for her to resolve the boundary dispute of the Tetere customary land before the Chiefs. This was ignored and a customary reconciliation with the Defendant herein was somehow preferred. With respect, the High Court referral order is clear. It is for the parties to resolve the boundary of the disputed land and not for convening of a customary reconciliation. By refusing to utilise the High Court referral order, I do not think it is proper for the Claimant to come again to the High Court this second time round and ask for another referral order for the Local Court to resurvey the land. This is an abuse of the Court’s process which should not be entertained by this Court.
15. Another pertinent matter not raised by counsels in submissions is the effect of the existing Strike Out order in HCSI CC No. 202 of 2012 to the validity of this present proceeding. There is no dispute that the referral order for the parties herein to resolve the boundary of the Tetere land before the Chiefs from the locality was made in HCSI CC No. 202 of 2012. On 15^th August 2018, the proceeding was struck out for want of prosecution. This present proceeding in fact seeks the same referral of the dispute not to the Chiefs but to the Local Court. The function of determining the boundary by the customary court of the disputed land remains the same despite the choice of different forum. As such, I do not think it is proper for the Claimant to bypass that strikeout order and commenced another case afresh, seeking the same referral of the boundary to the customary court. Since the nature of the referral order made in HCSI CC No. 202 of 2012 in effect has the same legal applicability and effect to the present proceeding, it is only proper that the Claimant should dislodge that order first before commencement of a further or new proceeding for the resurvey of the Tetere land. By failing to do so and instead preferring to commence this proceeding afresh, in my view, it also amounted to an abuse of the Court’s process.
16. There is no dispute that this Court has the supervisory jurisdiction to aid the proper functions of the subordinate courts as provided in section 77 of the Constitution. This is well expressed in Alemaesia v Agola [2009] SBHC 2; HCSI-CC 377 of 2007 [at page 3]:
    • “Section 77 of the Constitution provides that the High Court has unlimited original jurisdiction to hear and determine any civil (for our purpose) proceedings under any law and such other jurisdiction and powers conferred on it by the Constitution or Parliament. Section 84 says, the High Court has jurisdiction to supervise any civil proceedings before any subordinate court and may make such orders etc, as it considers appropriate ensuring that justice is duly administered by such Court”.
17. However, the facts and history of this proceeding uncovered that this is not the appropriate case for this Court to exercise such a function. The Court must ensure its legal system must be protected and not to be employed or utilised by a party to achieve a result that runs afoul to the process prescribed by the law. Based on the discussions, it must therefore follow that the application to strike out the claim must be granted. Consequently, I order that the entire proceeding is dismissed pursuant to rule 9.75 of the CPR. Cost of this application is to be paid by the Claimant to the First Defendant on standard basis.

Orders of the Court

1. Grant application to strike out the entire proceeding under rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
2. Consequently, the entire proceeding is dismissed under rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
3. Cost of this hearing is to be paid by the Claimant to the First Defendant on standard basis.

Augustine S. Aulanga
PUISNE JUDGE