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Bilimaoma v Aute'e [2006] SBHC 40; HCSI-CC 085 of 2006 (15 September 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 85 of 2006

PAUL BILIMAOMA, MALAKAI KOFANA AND MOSES ENI OFASISILI

-v-

LUCY AUTE’E AND MARTINE SADE

Date of Ruling: 15th September 2006

Preslie Watts for the plaintiffs

REASONS FOR REFUSING SUMMONS IN ACCORDANCE WITH THE COURTS INHERENT POWERS TO CONTROL ITS PROCESS

Brown PJ: By statement the plaintiffs claim relief against the named defendants and seek-

(i) A declaration that the 02nd August 2005 ruling of the MLC is frivolous and vexatious.

(ii) If the declaration prayed for is granted, for consequential orders that:-

(a) The said 2nd August 2005 ruling of the MLC be accordingly moved into the High Court for the purpose of being quashed.

(b) That any appal against the June 1996 ruling of the West Kwara’ae House of Chiefs which Defendant Lucy Aute’e had not appealed against as at the date hereof and from which Defendant, Martin Sade had withdrawn, is time barred pursuant to Section 5 of the Limitation Act.

(c) For leave of the court pursuant to Order 61 Rule 1 that the Plaintiffs apply for an order of mandamus to compel the Commissioner of lands and the Registrar of Titles to rectify that register for LR 605, Parcel No. 151-005-1 in respect of Gwanauru’u Airport.

(ii) Such and further orders as the court may deem fit to impose.

(iv) Costs incidental to this cause.

This statement of claims, if allowed to proceed must cause the defendants cost and inconvenience for it is badly drafted and no cause of action is apparent on its face-

Before directing the Registrar to refuse the document ex debito justitiae, I shall recite material pleaded which, I trust, will explain why the plaintiff’s statements should not enliven this courts jurisdiction by way of writ of summons and thus call for appearances by the various defendants.

The plaintiffs claim to be members of the Ngalifitafita/Funisisila land-owning group. The plaintiff says the two defendants, Lucyt Aute’e and Martin Sade of Gwaunaru’u village, West Kwara’ae also claim customary ownership of the same land.

The land, or Ngalifitafita/Funisisila includes smaller tracts called Biraukwao/Kwaruiasi and Gwaunaru’u Airport. I note the name of the Airport land coincidentally is that of the 2 defendant’s village.

As part of the plaintiffs material in support, a copy of the Perpetual Estate Register kept by the Registrar of Titles, shows that land in Parcel No. 15-005-1 LR 605 Gwaunaru'u comprising 10.579 hectares was granted in perpetuity to named persons (by transfer 68/77 dated 17th February 1977) Antonia; Martin Boloi; Marcus Maomaibai and Robinson Kofana.

That land, then is no longer customary land. It would appear to be the land described in the amended statement of claim as the Gwaunaru’u Airport land. There would appear to have been an earlier lease under the Land and Titles Act (Cap. 133) of the particular registered parcel by lease dated 30 July 1969 no. 126/1969 for short details appear on the ownership register of the perpetual estate.

The plaintiff recites a number of hearings by customary chiefs, the Malaita Local Court and the Malaita Customary Land Appeal Court.

By para. 8 of the amended statement of Claim the plaintiff’s plead:

"8. Subject to that HC LAC 10/09/99 ruling, the MLC again presided over the matter in August 2005 and again erred in failing to address the land issues and venture out to appointing Trustees to the Gwaunaru’u Airport.

"9. The plaintiff’s here in refuse to accept the said ruling of the MLC of August 2005 for the reasons that they have not made any rulings over the ownership rights of the claimants but have sought to determine trusteeship over a registered property that they lack the jurisdiction to deal with".

By virtue of Part XXVIII of the Land and Titles Act, the jurisdiction of the local court and consequently a customary land appeal court is defined to mean "all matters and proceedings of a civil nature affecting or arising in connection with customary land other than"... (matters which need not concern us here) [s. 254].

Customary land is not registered land. To plead, as the plaintiff does at para 10 that’ "the plaintiffs have suffered damage by how the MLC and MCLAC have refused to address the landownership question founded on evidential proof on the basis of Malaitan customs and land tenure" does not show a cause of action affecting registered land. In any event by virtue of ss. 256, 257, the right of appeal against the decision of the MLC of 2 August 2005 expired on the 3 November 2005. To seek a declaration in these circumstances by (i) of the statement is not available to a plaintiff (Steven Veno anor v. Oliver Jino anors Court of Appeal 2002 of 2005 unreported judgment of 12 April 2006). The findings and orders of the CLAC remain in full force and effect.

It can be seen from the short facts that relief sought in (iii) is baseless.

When the issue of court process has such serious consequences, it should not be allowed to be issued when a claim or cause does not appear from a reading of the originating pleading.

The amended writ of summons and statement of claims is rejected ex debito justitiae.

THE COURT