IN THE HIGH COURT OF SOLOMON ISLANDS 
Civil Jurisdiction 
(Maina J)

Civil Case No. 332 of 2014 

BETWEEN:	SHEMEL SIAU, FILIA MAMAE, PETER AUGA,	  -	Claimants 
SAM AU RAMOSAEA, ALLEN SIAU, 
ALFRED MAETIA AND ISRAEL SIAU			  					
AND:		SAMUEL MALOLO, MANISELEA MALOLO AND	  -	Defendants
STEVEN TOMANI  					

Date of Judgment:   1 September 2016

Mr L. Kwaiga for Applicant/Defendant
Mr. P. Tegavota for Respondent/Claimant

RULING 
Maina PJ:                                     

Introduction 

There are two applications before the Court.  The first one is from the Defendant to dismiss the claim and the other is from the Claimant to determine the preliminary issues.

On the first application, the Defendants apply to the Court to dismiss the Claimant’s claim as it is an abuse of the court process. In alternative or so, they seek a court order to revert the case back to the Manadari House of Chiefs to deal with it.  And any other orders the court thinks fits.

The grounds of the application are that:

1.	Claimants in this matter before the Court were not parties to the case in the HC Civil case No. 36 of 1961,

2.	Defendants in this matter before the Court were not parties to the Native Land Court No. 6 of 1975,

3.	As in paragraph 1 and 2 both the Claimant and Defendant are not bound by the decisions as the Claimant were not privy to Civil Case No. 36 of 1961 and the Defendant to Native Land Court No. 6 of 1975,

4.	There were also other cases as in the High Court CC No. 211 of 1997 that relate to interlocutory reliefs, Malaita Local Court No. 10 of 1998 which referred the matter to the house of chiefs of the locality for determination, Maradari House of Chiefs on 25th November 2014 said that they were unable to decide until a decision is made by the High Court in relation to this matter.

5.	According to the Defendant, the decision of the cases are not binding to them and as the matter involves ownership of customary land and the appropriate forum for them is the House of Chiefs.

The application is supported by the sworn statement of Steven Tomani Taediu which stated the claim is founded on the grounds the Defendants were a party to the previous court judgments.  The Defendant denied the claim and said his father was only a witness to a party in the court and the decisions of the previous court cases are not binding on them.

Brief Backgrounds 

The Claimants’ claim is on Mararabu land, which they said that ownership and boundaries had already been finally determined between the Claimant and the Defendant. The Defendant by virtue of land case of 1961 and Native Land Court No. 6 of 1975 previously dealt with the issues as ownership, boundaries, use rights and others matters on the lands. Both parties also acknowledged their involvements in some of the previous court cases. 

Previous Cases 

It is not disputed by the Defendant there were decisions in the cases as East Kwara’ae Local Court Dispute No. 2/74, Native Court Appeal Case No. 6 of 1975 and HC/CC No. 211 of 1997 but denied the decisions of those cases are not binding on them as their father was only a witness for a party in the cases.

The Law

Rule 9.75 of the Civil Procedures Rules 2007 provides that the Court may strike out claims or proceeding generally or in relation to any claim for relief in the proceedings on the grounds of (a) the proceedings are frivolous or vexatious; or (b) no reasonable cause of action is disclosed; or (c) the proceedings are an abuse of the process of the Court.

The power to strike out a claim or proceeding under rule 9.75 is discretionary. And Lordship Palmer, ACJ (as he was then) in Tikani v Motui [2002] SBHC 10; HC-CC 029 of 2001 (18 March 2002) drew from both local and English cases of the general consideration or principles in the exercise of the discretion to a strike-out application.  The principles in Tikani v Motui case is so well known I need not go into them here.

With the pleading as further alluded in Court of Appeal in the case Sa’oghatoga v Mugaba Atoll Resources Company [2015] SBCA 4: SICOA-CAC 2 of 2015 (24 April 2015), is now replacement by rule 9.76 of the Rules.

His Lordship Palmer in Tikani v Motui case when he ascertained the principles on how to exercise the court’s discretion on the frivolous and vexatious or abuse of process further said that the jurisdiction given to the court on these grounds is to be sparingly used and only in exceptional cases (Lawrence v. Lord Norrys (1890) 15 App.

The claim of the Claimant relates to the Defendants’ involvement on to the previous court proceedings and that the decisions were binding to Defendants. This raises issue of res judicata. And that discloses a triable issue in law and facts in this case.

As noted in Tikani v Motui case with the local and common law cases, strike out claim and dismissing a case summarily is action which are done only in very clear cases where the claim is baseless and does not disclose cause of action. It should be done only where the statement of claim and the ultimate facts asserted therein do not disclose even an arguable case.  It is in the interest of justice that such case should be allowed to proceed.

With all respect and having an opportunity to consider the submissions and evidences it is my view that there is triable issues therefore the application by the Defendant to strike out the claim is refused.

Application by the Claimant

As application to determine preliminary issues was also filed by the Claimant but it is significantly on this issue of res judicata, the very root or essence of the claimants’ claim. And it is as I ruled in with Defendants’ application be determined at the trial. Therefore, the application by the Claimants to determine the preliminary issues is also refused. 

ORDER

1.	The application with all the orders sought by the Defendant is refused and dismissed,

2.	The application to determine preliminary issues filed by the Claimant is also refused and dismissed, 

3.	Matter is referred to RHC to fix a date to hear the claim. 

4.	Cost is reserved.

THE COURT

………………………………………………………..
Justice Leonard R Maina 
Puisne Judge