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Batalofo v Commissioner of Lands [2007] SBHC 60; HCSI-CC 433 of 2004 (19 June 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 433 of 2004

JOHN BATALOFO

v

COMMISSIONER OF LANDS
and THOMAS LAI (representing Fera’abuna’oe Land Trustee)
as second defendant and counterclaimant

Date of Hearing: 27 April 2007
Date of Judgment: 19 June 2007

P. Watts for the plaintiff
Attorney-General for the 1st and 2nd defendants.

REASONS FOR JUDGMENT STRIKING OUT PROCEEDINGS AS
DISCLOSING NO CAUSE OF ACTION

Brown, J: By statement of claim, the plaintiff claims (as representative of the Onebala Tribe), to be entitled to an order restraining the release of government moneys earmarked for compensation for damages to sacred sites at Malaita and this courts determination of guidelines for the payment to competing tribal groups.

I struck the proceedings out on Friday 27 April as disclosing no cause of action. I said I would give my reasons at a later date.

Both the defendants had by their defence, pleaded no cause of action. By s. 15 of the Crown Proceedings Act, civil proceedings against the Crown shall be instituted against the Attorney-General. By s. 18 no relief by way of injunction or specific performance is available against the Crown.

Declaratory rights affecting landowners according to tribal custom cannot be justiciable in this High Court, except to the limited extent permitted by s. 256(3) of the Land and Titles Act on appeal from an order or decision of a customary land appeal court.

These proceedings could have been struck out at their inception. Previously the Registrar had an inherent right to refuse to allow the institution of proceedings which clearly disclosed no cause of action. It would seem the practice has been superceded by administrative fiat, but there are many cases, unfortunately where parties’ expectations and money for professional costs are raised and lowered in direct proportion by the fact of the acceptance of such proceedings in this court.

The Constitutional recognition of tribal law and custom with avenues of resolution of disputes should also guide practitioners and this court should not allow its process to be misused in this fashion when costs are unnecessarily incurred by parties obliged to meet legal expenses. It is clear this court is obliged to strike when eventually the proceedings come before it for argument.

As the representative of the Department of Lands and Survey says on the Commissioners’ behalf, in the light of the dispute the Government is unable to pay the balance of compensation in accordance with the shares to which each of them is entitled for obviously one of the groups has resiled from the earlier agreement and the Government cannot reasonably expect to obtain a proper receipt. It cannot be expected to know to whom to pay the money. The proper course if a party has resiled from the earlier arrangement is for the other party to seek an order from the Local Court (since it seems the Chief’s decision and arrangements have broken down) in terms of that earlier arrangement so that the balance of these compensation moneys can be disbursed by the Government in reliance on the order.

THE COURT