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Tota v Commissioner of Lands & Survey [2025] SBHC 83; HCSI-CC 346 of 2024 (28 July 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 346 of 2024

BETWEEN:

ROSELYN TOTA, SARAH JOHN, JIMSON PEI AND ALICE AU RIENA
Claimant

AND:

COMMISSIONER OF LANDS & SURVEY
Ministry of Lands & Survey, P O Box G38, Honiara Solomon Islands
First Defendant

AND:

Premier, Guadalcanal Province,
P O Box GC7, Honiara, Solomon Islands
Second Defendant

AND:

JQY Enterprises Ltd, P O Box 1210, Honiara, Solomon Islands
(Third Defendant)

Date of Hearing: 29 November 2024
Date of Decision: 28 July 2025

Mr Samani Logara Dausabea, Kali’uae Getu (A Spokesman for the Claimants)
Mr Nickson Ofanakwai for the First Defendant
Mr Bradley L Dalipanda for the Second Defendant

RULING ON APPLICATION TO STRIKE OUT CLAIM

Introduction

1. This is the Court’s ruling on the Third Defendant’s application filed under Rule 9.75(a), (b), and (c) of the Civil Procedure Rules 2007, seeking to strike out the entire proceeding on the grounds that it:
   • (a) discloses no reasonable cause of action;
   • (b) is frivolous or vexatious; and
   • (c) constitutes an abuse of court process.
2. The Third Defendants further contend that the Claimants lack legal standing, whether in a personal or representative capacity, to maintain these proceedings.
3. The application is supported by the sworn statement of Jian Qing Yang filed on 16 September 2024 and the sworn statement of Hon. Willy Atu MPA filed on 8 October 2024.
4. The First Defendant supports the Application.
5. The Claimant opposes the application and seeks that the matter proceeds to trial.

Background

6. The Claimants allege they descend from the original customary owners of land in the Foxwood area, Central Guadalcanal, specifically Parcel No. 192-019-005.
7. The registered legal owner of that parcel is Solomon Agriculture & Livestock Development Limited (SALDL), not the Third Defendant.
8. The Claimants seek to challenge the process by which that parcel came to be awarded to SALDL, contending it should have reverted to them under a government policy and the Townsville Peace Agreement (TPA).
9. The Claim seeks six declaratory orders against the first and second defendant concerning the manner in which they conducted the public tender which resulted in the title of Parcel No. 192-019-005 registered to SALDL.
10. The Claimant also claim continuous occupation since 2005 and assert that such occupation entitles them to the land by way of adverse possession.
11. The Defendants argue that the Claimants assert no recognised legal or equitable interest and that the claim is entirely unsustainable at law.

Issues for Determination

12. The Court must determine the following issues:
    • (a) Whether the Claimants have standing to bring this proceeding in their personal or representative capacity; (b) Whether the Claim discloses a reasonable cause of action under Rule 9.75(a);
    • (b) Whether the Claim is frivolous or vexatious under Rule 9.75(b);
    • (c) Whether the Claim constitutes an abuse of court process under Rule 9.75(c); and
    • (d) Whether the pleading defects are curable by amendment.

Rules and Authorities

13. Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 empowers the Court to strike out proceedings that:
    • (a) disclose no reasonable cause of action;
    • (b) are frivolous or vexatious; or
    • (c) constitute an abuse of the Court’s process.
14. In Noro v Saki^[1] , the Court of Appeal held that where a defendant applies to strike out a claim on the ground that it discloses no reasonable cause of action, then the court must assume the pleaded facts are true and determine whether, if proven, they would entitle the claimant to the relief sought; if so, the claim should not be struck out.
15. In Amoi v Sale^[2] and Hatanga Ltd v Hanikouna^[3] , the Court reaffirmed that the Townsville Peace Agreement (TPA), while of significant historical and moral importance, does not by itself give rise to enforceable legal rights unless it is incorporated into legislation or is the basis of an administrative act subject to judicial review.
16. As held in Hatanga Ltd v Hanikouna (Supra), reliance on the TPA alone, without a pleaded administrative decision or statutory authority, is not justiciable. The Court reiterated to the effect that it is bound to adjudicate in accordance with the law, not moral or political declarations.
17. Under section 224(1)(b) of the Lands and Titles Act [Cap.133], adverse possession cannot be claimed against land vested in the Commissioner of Lands.
18. In Sa’oghatoga v Mugaba Atoll Resources Co^[4], the Court noted to the effect that pleadings with substantive and incurable legal defects must be struck out rather than amended.
19. On standing, Rizzu v Fiau^[5] confirmed that in the context of Rule 3.42 of the Solomon Islands Courts (Civil Procedure) rules 2007 a person cannot sue in a representative capacity without a proper mandate from the group represented.

Analysis
Standing

20. The Claimants bring this claim in their personal capacity, but the relief they seek relates to land that is said to belong to the Ghaobata Tribe.
21. A letter dated 9 September 2024^[6] from Chief John Pei of the Ghaobata Tribe, addressed to the First Defendant, states to the effect that the Claimants are under his tribal authority and were not authorised to bring this action.
22. The court finds that there is no evidence before the Court of any mandate, resolution, or endorsement from the Ghaobata Tribe authorising this litigation. The Claimants have no beneficial title or legal interest in the land.
23. In the absence of authority to sue on behalf of the tribe, and no pleaded personal right or interest, the Claimants lack standing in both personal and representative capacities. (See Rizzu v Fiau^[7] ).

Reasonable Cause of Action

24. The Claimants rely on the Townsville Peace Agreement and a government policy as the basis of their claim. However, neither of these documents has been incorporated into legislation, nor do the pleadings refer to any administrative decision subject to judicial review.
25. In Amoi v Sale^[8] and Hatanga Ltd v Hanikouna^[9] , the Court stressed that the TPA is not enforceable in law unless given legal effect. No statutory rights or obligations arise from its terms.
26. The Court noted that the Claimants had not pleaded any legal error, or statutory breach by the Commissioner of Lands or the Land Board. Nor had they alleged fraud or mistake that would enliven the Court’s jurisdiction under section 229 of the Lands and Titles Act.
27. The correct test for strike-out, as set out in Noro v Saki (supra), requires the court to assume the pleaded facts are true and ask whether they disclose a sustainable cause of action. In Noro v. Saki (supra), the claimants pleaded fraud or mistake, which justified the claim proceeding to trial.
28. In the present case, however, the claimants rely solely on the Townsville Peace Agreement and a government policy, neither of which has legal force. They do not allege statutory breach, legal error, or fraud or mistake to ground the court’s jurisdiction.
29. Applying the Noro v. Saki test, even if the pleaded facts are accepted as true, they do not establish any enforceable legal right.
30. Therefore, the court finds accordingly that in the circumstances, the claim discloses no reasonable cause of action.

Frivolous and Vexatious

31. The claim is plainly untenable. It rests on political aspirations and unenforceable moral obligations. It fails to articulate any legal basis upon which relief can be granted.
32. Proceeding with such a claim is frivolous and vexatious, as it wastes judicial resources and exposes the Defendants to unnecessary litigation costs.

Abuse of Process

33. The Claimants attempt to invoke the Court’s jurisdiction in a matter governed by public administration and land title registration, without identifying any actionable wrong.
34. The Court finds therefore that the proceeding is an abuse of its process.

Amendment

35. The court finds that the defects in the claim are not procedural or technical, they go to the legal foundation of the case as discussed in the issues of reasonable cause of action, frivolous and vexatious and abuse of court process. No amendment could render the claim legally viable.

Disposition and orders

36. For the foregoing reasons, the Court orders as follows:
    • (a) The Claim is struck out in its entirety pursuant to Rule 9.75(a), (b), and (c) of the Civil Procedure Rules 2007;
    • (b) The Claimants are declared to have no standing to bring this proceeding;
    • (c) The claim is not curable by amendment; (d) Costs are awarded to the Second and Third Defendants, to be taxed if not agreed.

DATED this 28th of July, 2024.

By the Court
Hon. Justice Michael Collin Pitakaka
Puisne Judge of the High Court

[1] [2016] SBCA 18 SICOA-CAC 11 of 2016 (14 October 2016) Goldsbrough P, Lunabek JA, Young JA at paragraph 10

^[2] [2024] SBHC 92, 22 August 2024, Aulanga PJ
^[3] [2024] SBHC 29, 6 October 2023, Lawry PJ

[4] [2015] SBCA 4 SICAO-CAC 2 of 2015 (24 April 2015) Goldsbrough P, Ward JA and Wilson JA

^[5] [2016] SBHC 34, 3 March 2016, Maina J
^[6] Sworn Statement of Jian Qing Yang filed on 16 September 2024, paragraph 11 (Anexure JQY-1)
^[7] [2016] SBHC 34, 3 March 2016, Maina J
^[8] [2024] SBHC 92, 22 August 2024, Aulanga PJ
^[9] [2024] SBHC 29, 6 October 2023, Lawry PJ