Lulumi v Louna [1990] SBHC 36; HC-CC 063 of 1990 (8 June 1990)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 63 of 1990

FRANCIS LULUMI

-v-

JOHN LOUNA

High Court of Solomon Islands
(Ward C.J.)

Hearing: 7th June 1990
Judgment: 8th June 1990

A. Radclyffe for the Applicant
T. Kama for the Respondent

WARD CJ: This is an application for a writ of certiorari to quash the decision of the Gela Local Court in case number 4/89.

The grounds of the application are simple - that the defendant was not served with a summons to attend the hearing on 27th April 1989 and the court wrongly proceeded with the case in his absence.

The applicant has given evidence and called his co-defendant in the lower court and the respondent, who was plaintiff below, has given evidence and called the clerk and President of the local court and a police officer who served the summons.

The applicant and his witness simply deny receiving any summons to this hearing. The witness acknowledged receiving a summons to an earlier hearing in February 1989 which was postponed when the clerk did not attend.

The police officer told the court how he served the co-defendant Viu the day before the hearing on the 26th April by leaving it with his wife. Later he saw Viu himself and explained it to him. The next morning he saw the applicant in Tulagi before the case and told him about it. He gave the acknowledgment of service to the court clerk when he came to the police station.

The clerk's evidence was that he had seen the acknowledgment of service before he left Honiara. When he returned to Honiara he gave it to the local court officer but when, this year, he heard of this case, he could not find it. The file shows that there was a carbon of the summons for February and the acknowledgment of service but, although there is a carbon summons for April, no other documents are there.

The court record refers to the fact that the Principal Magistrate had been consulted and advised the Court it could proceed if satisfied there had been service but there is no record of how service was proved or indeed whether it was proved.

The evidence of service before this Court depends on witnesses who conflict with each other. I feel the confusion may result from the February summons but the witnesses were adamant they remembered the April date. In the circumstances I cannot be satisfied on balance that service did occur.

I order a writ of certiorari issue to remove the case into this court to quash it. I remit it back to Gela Local Court to be heard afresh. I feel, in the circumstances, that a fresh panel of justices must hear the case.

Costs of this to be costs in the cause of the subsequent case.

(F.G.R. Ward)
CHIEF JUSTICE