Sikua v Attorney General [2024] SBHC 84; HCSI-CC 219 of 2023 (23 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Sikua v Attorney General
Citation:
Date of decision:	23 August 2024
Parties:	Alban Sikua v Attorney General, Simon Susa, Simon (in the place of Julia Ngelemenge (deceased) for Ting Ngi Ti Tribe), David Thuri & Robinson Kilua, Attorney General
Date of hearing:	31 August 2023
Court file number(s):	219 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	For the above reasons, I hereby decline to hear Mr Sikua’s claim and I strike it out under r. 15.3.20 of the CPR. I also order cost against the Claimant. I hereby order accordingly
Representation:	Mr Neslon Laurere for the Claimant Mr Brenton Pitry for the First & Fourth Defendants Mr Iroga for the Second & Third Defendant-no appearance
Catchwords:
Words and phrases:
Legislation cited:	Limitation Act [cap 18) S 5, S 38 (1) (b), Land and Titles Act S 256 (3)[cap 133] , Solomon Islands Courts (Civil Procedure) Rule 2007, r (b), r 15.3.18, r (a), (b) and (d), r 15.3.20
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 219 of 2023

BETWEEN

ALBAN SIKUA
Claimant

AND:

ATTORNEY GENERAL
(Representing Guadalcanal Local court Clerk)
First Defendant

AND:

SIMON GUSA (IN THE PLACE OF JULIAN NGELEMENGE (deceased) for the Ting Ngi Ti Tribe)
Second Defendant

AND:

SIMON GUSA, DAVID THURI & ROBINSON KILUA
(Claimant in HC/CC No. 679 of 2020)
Third Defendant

AND:

ATTORNEY GENERAL
(Representing the Ministry of Infrastructure Development)
Fourth Defendant

Date of Hearing: 31 August 2023
Date of Decision: 23 August 2024

Mr Nelson Laurere for the Claimant
Mr Brenton Pitry for the First & Fourth Defendant
Mr Iroga for the Second & Third Defendant –No Appearance

RULING ON CHAPTER 15 CONFERENCE

Bird PJ:

1. This hearing is a screening process. Mr Sikua applies for judicial review of a decision of the Guadalcanal Local Court on the ground of fraud. This case can only proceed if I am satisfied that all four of the statutory requirements have been met. The Attorney General argues that two of the requirements have not been satisfied. Mr Gusa, Mr Thuri and Mr Kilua did not appear during the hearing but have filed submissions. They argue that three of the requirements are not met. I must therefore determine whether the following requirements are met:
   1. The claimant has an arguable case:
   2. The claimant is directly affected by the subject matter of the claim;
   100. There has been no undue delay in making the claim;
   4. There is no other remedy that resolves the matter fully and directly.

Issue (i)

2. Has Mr Sikua demonstrated an arguable case?

The position of the Claimant

3. Mr Sikua wants to quash a decision of the Guadalcanal Local Court. He also wants to unravel all decisions that were based on the Local Court decision. He says that the decision was tainted with fraud. Apart from filing his claim, evidence was also filed.
4. Two sworn statements were filed in support of his claim. One was from himself and one from his witness, Ms Maria Ghaua. In the claim, it is alleged that there was no subsequent Local Court hearing between Mr Sikua and or members of his family and Julian Ngelemenge (deceased), now represented by Mr Gusa. That position is confirmed by Mr Sikua’s sworn statement.
5. The evidence of Ms Ghaua confirmed there was a subsequent Local Court hearing between the parties. She attended with her mother, Anna Keniseli. Mr Sikua was unaware of the hearing. She stated a hearing was convened by the Local Court. No published decision was given to Mr Sikua’s party.

The position of the Defendants

6. The Attorney General, Mr Gusa, Mr Thuri and Mr Kilua deny that Mr Sikua has demonstrated an arguable case.
7. The Attorney General says that Mr Sikua has not exhausted other avenues available to him in pursuing his case. He therefore does not have an arguable case. The first requirement has not been met by Mr Sikua.
8. Mr Gusa, Mr Thuri and Mr Kilua are of the view that it is not the right process for Mr Sikua to commence his case in the form it is filed. This is not a proper claim for judicial review. Alternatively, it is argued that there has been a substantial delay in commencing this case.
9. Mr Sikua is seeking relief by way of a quashing order. He is also seeking subsequent order from this court to unravel all decisions based on the disputed Local Court decision upon allegation of fraud. They say this is not a proper case for judicial review. In that regard, Mr Sikua do not have an arguable case.

Analyses of issue (i)

10. Mr Sikua has commenced this proceeding by way of a claim for judicial review for a number of orders including a quashing order. The basis of his claim is that the subject decision was obtained by fraud. The two sworn statements filed in Mr Sikua’s case contradicts each as particularised in paragraphs 4 and 5 above.
11. Mr Sikua’s application for leave to file a claim for judicial review was initially not objected to by the Attorney General. Mr Gusa, Mr Thuri and Mr Kilua were not present in court when the application was determined by myself. It was not an issue then. They are now raising the issue.
12. The Guadalcanal Local Court decision, the subject of Mr Sikua’s case was determined on 1 November 1985. Mr Sikua’s claim was filed on 8 June 2023, subsequent to leave being granted. There was a time lapse of about 38 years.
13. By virtue of section 5 of the Limitation Act (cap18) (LA), the general limitation period for filing an action or arbitration is 6 years. Section 38 of the Act further provides that after the expiration of the 6 years, this court is entitled to dismiss an action even if the issue is not specifically raised in a defence. The court is also able to continue with the proceeding under s. 39 of the Act.
14. In this case, Mr Sikua filed his claim after about 38 years. That contravenes s. 5 of the LA. Mr Gusa, Mr Thuri and Mr Kilua briefly raised the issue in submissions. It was not raised in their defence and was vigorously pursued during submissions. The Attorney General also did not raise the issue in their defence and not in their submissions. By s. 38 (1) (b) of the LA, I am empowered to determine the issue.
15. I have perused the pleadings in the case. I find nothing in Mr Sikua’s claim for judicial review that indicated that I should use my powers under s. 38 and 39 to condone the late filing of his claim. Mr Sikua’s filed submission did not address the issue as well.
16. In the absence of any pleading in respect of that issue and in the absence of submission from parties to assist me in my determination, I am entitled to use the provision of s. 38 thereof.
17. Another important aspect of issue (i) is whether or not Mr Sikua is entitled to file a claim for judicial review upon the facts pleaded in his claim. Mr Gusa, Mr Thuri and Mr Kilua avers that it is not a correct process to commence this case. They rely on case authorities in support of their argument.
18. Having heard and perused the submissions, the case authorities and noting that Mr Sikua has failed to respond to the issue during hearing, I am only left with I have before me. Mr Sikua is seeking quashing orders and a declaration to the effect that all decisions and judgments relating to 1 November 1985 decision are to be unravelled because of fraud.
19. I am unable to deal with those issues in a claim for judicial review. The issues should have been properly pleaded in a Category A claim. In my considered view, such cases will be a complex one that needs case management and directions.
20. So having considered issue (i), Mr Sikua’s case is statuted barred under s. 5 of the LA. It is also commenced under a wrong process. I am therefore not satisfied that Mr Sikua has demonstrated an arguable case.

Issue (ii)

Is Mr Sikua directly affected by the subject matter?

21. Mr Sikua’s mother had a prior decision in her favour before 1 November 1985. That decision and his right over the subject land was altered by the 1985 decision. In short therefore, I can say that Mr Sikua is directly affected by the subject matter.

Issue (iii)
Has there been undue delay by Mr Sikua to filed the claim

22. In light of my discussion on issue (i) above, I am able to say that there was considerable delay by Mr Kilua to file his claim.

Issue (iv)
Is there no other remedy that resolves the matter fully and directly?

23. Upon allegation of fraud and on a declaration, seeking quashing order and the unravelling of court decisions after time limitation pursuant to s. 256 (3) of the Land and Titles Act (cap 133), there is no alternative remedy available to Mr Sikua but by filing the correct process to this court. He could have got assistance from provisions in the Limitation Act (cap 18). Issue (iv) has not been satisfied for the reasons stated in paragraphs 10 to 20 above.

Conclusion

24. Having determined all 4 issues in this hearing, I am satisfied that Mr Sikua has satisfied me on requirement (b) of rule 15.3.18 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). He however has not satisfied me on requirements (a), (c) and (d) thereof.
25. For the above reasons, I hereby decline to hear Mr Sikua’s claim and I strike it out under r. 15.3.20 of the CPR. I also order cost against the Claimant. I hereby order accordingly

THE COURT
Justice Maelyn Bird
Puisne Judge