IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

CIVIL CASE NO. 280 OF 2014

BETWEEN:

BEDLY PALA
Claimant
(Representing Pigevuru sub-clan of Bava Tribe,
Vella Lavella, Western Province)

AND:

ATTORNEY-GENERAL
1st Defendant
(Representing Clerk to the Western Customary
Land Appeal Court)

AND:

MAXIMUS INTERNATIONAL LIMITED
2nd Defendant

Date of Hearing: 6th January 2015
Date of Ruling: 7th January 2015

Mr J. Keniapisia for the 2nd Defendant
No one for Claimant
No one for the 1st Defendant

RULING ON APPLICATION TO STRIKE OUT.

Faukona PJ: This is an application seeking striking out order. The application was filed by the second Defendant on 29th December 2014. The relief seeks that this Court makes an order that the ex-parte orders granted in favour of the Claimant by the Magistrates Court on 12th December 2014, be removed into this court and be struck out for lack of jurisdiction and or abuse of process.

2.	On 26th August 2014, the Claimant filed a claim for judicial review seeking certain quashing orders, interim injunctive order and an order reinstated a fresh public hearing by the Western Customary Land Appeal Court (WCLAC) in respect of two appeals that were pending before it, of which had been withdrawn. In response, the second Defendant had filed defence on 8th September 2014. 

3.	Whilst waiting for the next step in the judicial review process, the Claimant then proceeded before a Magistrate of the Second Class, at the Central Magistrates Court, Honiara, in Civil Case No. 146 of 2014, and obtained interim ex-parte injunctive orders against the second Defendant which by virtue of the orders the logging operations came to a halt.

4.	The second Defendant comes to this Court and sought to invoke the inherent power of the Court to strike out the interim orders on two grounds.

Abuse of Court process:

5.	The first ground is abuse of Court process. The Counsel for the second Defendant submits that where a claim had been on foot and pending in the High Court, it could be perceived as abuse, unjust and unfair for the Claimant to precede and obtain injunctive orders in the magistrates Court. He submits that the Claimant should have pursued interim orders in the High Court whether on ex-parte basis or on inter-parte. To proceed with an application for interim orders in the Magistrates Court under cover of other civil suit was an abuse of process and Court procedures.

6.	Another point to note is that, on the face of the interim injunctive orders, the application in the Court below was supported by a sworn statement. None of those documents were served upon the second Defendant who had already filed a defence on 9th September 2014. There is no information or knowledge of the nature of the case (CC 146 of 2014) filed in the Central Magistrates Court. What was the case about and what were the substances of it. 

7.	Furthermore, I noted that the sworn statement deposed by the Claimant and filed on 26th August 2014 in support of High Court CC 280 of 2014 was signed by the same Magistrate who granted the orders. Not only that, but all the exhibits attached to the sworn statement were also signed by the same Magistrate as Commissioner for oath.

8.	It may appear there was some collaboration or association, which led to granting of the interim injunctive orders. To swear a sworn statement requires a deposer to appear before the Commissioner for oath or a Magistrate personally. The circumstances of this case do not disqualify but retrospectively align some kind of relationship between the Claimant and the learned Second Class Magistrate. Paragraph 4 of the sworn statement by a foreigner Mr Sie Kee seems to affirm the prospect, knowing fully well that the Magistrate is also from Vella La Vella, Western Province.

9.	I find this point alone is sufficient to ground a grant of order to strike out.

Lack of Jurisdiction:

10.	The issue of lack of jurisdiction is not well covered by the submissions. In reality, the Magistrate in an attempt to exercise jurisdiction did not determine any substantive issue at all, or reviewing the WCLAC decision or hearing any appeal for that matter. This is not a situation where the Magistrate exercises jurisdiction in a corresponding court with equal footing of jurisdiction. What the Court did is grant interim orders in aide of judicial review claim, which is pending determination by the High Court.

11.	The best course to argue the issue of jurisdiction is reference to section 19 of the Magistrates Court Act, Cap.20. S. 19 (1) (d) makes provision for the Magistrates Court to grant injunctions. S. 19(1) specifically conferred power upon a Magistrates Court to exercise jurisdiction within the limits of the district which it is situated. Magistrate Ms Lelapitu exercises jurisdiction as a Second Class within Central District. Does she exercise powers within Western District as well? I do not think so, the Magistrate Court Act limits her power to confine to issues arise within Central District only. Her powers may extent to include other Districts on special occasions upon being authorised. 

12.	A significant point to note is the amount involved. A suit between landlord and tenant (S. 19 (1) (b)) for possession of any land on houses claimed under agreement the annual value or rent does not exceed five hundred dollars. In S. 19 (4) provides that a Second Class Magistrate can exercise jurisdiction similar in all respect to that set out in subsection (1) save where it is estimated at a money value does not exceed two hundred dollars. 

13.	In any event, the interim injunctive orders granted in this case were made by a second Class Magistrate. The figures may have changed over time. However, the fact remains the same that she was dealing with a case in respect of logging operations. I think the value capital to undertake logging operation is not within hundreds of dollars but millions. Certainly, Magistrate Lelapitu has gone beyond the exercise of her jurisdiction. She has breached her physical jurisdiction and at the same time, the value of money she can entertain in Court was also beyond her jurisdiction. 

14.	In all, that I say reflects in this ruling. I must grant the relief sought in this application.

Orders:

1.	The interim ex-parte orders granted on 12th December 2014 in favour of the Claimant in the Honiara Central magistrates Court in Civil Case No. 146 of 2014, is hereby moved into this Court and be struck out.

2.	Cost in the cause.

The Court.