DJ Graphics Ltd v Commissioner of Lands [1995] SBHC 116; Civil Case 102 of 1995 (12 July 1995)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO 102 of 1995

D.J. GRAPHICS LIMITED

v

COMMISSIONER OF LANDS

(PALMER J.)

Hearing: 12/7/95
Ruling: 12/7/95

G.J. Traczyk & F. Waleilia for D.J. Graphics Limited
P. Afeau for Commissioner of Lands
A. Radclyffe for Solomon Islands Ports Authority

Palmer J: The notice of motion in civil case 102 of 1995 was filed on the 3rd of July 1995 for hearing on the 12th July, 1995.

It seems to me that service was then effected on the Attorney General, but in view of the complexity of the persons involved, the learned Attorney General decided to act for the current Minister of Lands, whilst the learned Solicitor General took up the case on behalf of the Commissioner of Lands.

The learned Solicitor General has indicated that he became aware of the above application, as of yesterday only, and has had to have an affidavit filed within that short time for the hearing today. In that respect it is arguable whether the requirements of Order 55 Rule 6, of the High Court Civil Procedure Rules, of at least two days notice of service had been complied with.

Mr Traczyk's contention as to the question of costs is to attribute the failure of the hearing of civil case 102/95 solely in the court of Solomon Islands Ports Authority (SIPA).

Unfortunately, it is my view that that would not be fair.

First, as has been properly conceded, SIPA is not a party to the proceedings in civil case 102 of 1995, although notice of the hearing was served on SIPA as an interested party. The decision therefore whether to proceed with the hearing of civil case 102/95 was a matter between the Plaintiff and the Defendant.

At the commencement of the hearing of this Notice of Motion however, it was brought to the Court's attention. the existence of a recent case filed in this Court on the 12th of June 1995 between Solomon Islands Ports Authority as the Plaintiff, and the Commissioner of Lands and Attorney General, as First and Second Defendants respectively, - (civil case 164/95).

By letter dated 4th July, 1995, addressed to the Attorney general and faxed to him on or about the same day, with a copy to Mr. Waleilia, Mr Radclyffe sought to suggest a course of action based on his belief that one of the crucial issues, being; "whether the Minister of Lands has power to allocate the land to D.J. Graphics", and raised only in civil case 164/95, it was his view that therefore civil case 164/95 should be heard first to civil case 102/95.

Another letter dated the 6th of July 1995 was also addressed and faxed to the Registrar of High Court, with copies to Messrs Waleilia and the Attorney General, expressing a request to have an audience with the judge so that his opinion could be considered. Unfortunately, the Registrar of the High Court had gone on leave and therefore no response was made to that letter. Although there is nothing wrong about seeking such audience by way of a letter, the correct procedure in the circumstances of these cases would be to file a summons for hearing of such matter in chambers. That would then activate formally the line of action which Mr Radclyffe proposes to take and also formally, put on notice, the opposite parties. That failure to file a summons by Mr Radclyffe however. did not prevent him, and it has not been raised by Mr Traczyk and other learned counsels that he could not raise that matter as a preliminary point in the hearing today; and that was what Mr Radclyffe did. He expressed the view that his client's case raised important issues which in his view should be dealt first because they could affect the issues raised in civil case 102/95.

In that respect he asked if the hearing in civil case 102/95 be deferred and for a suitable date to be fixed for the hearing of civil case 164/95.

Mr Traczyk on the other hand opposed the views expressed by Mr Radclyffe pointing out that SIPA via Mr Radclyffe, had been put on notice as to the hearing of civil case 102/95 today and that in view of the fact that the orders sought were essentially directed at the Commissioner of Lands, and none against SIPA, that the hearing nevertheless should proceed.

The issue of consolidation was raised by the Court in view of the similarity of issues raised in civil case 102/95 and 164/95 and to avoid duplicity and further delays.

Mr Radclyffe opposed the idea of consolidation initially as he was of the view that the issues raised in civil case 164/95 were quite separate from 102/95, and also because D.J. Graphics was not named as a party.

However, after it was put to the parties by the Court that really an order for consolidation would be proper, he consented but then made it quite clear that he was in a position to proceed with civil 102/95. It would not be fair therefore to put the blame solely on Mr Radclyffe on the consolidation question.

The learned Attorney General in his comments on this issue pointed out that in view of the fact that he was now acting for the Minister of Lands, and having sighted the affidavit of Cherry Tanito filed on the 12th of July 1995 in civil case 102/95, was plainly of the view that a rebuttal affidavit would need to be filed as there are important questions of fact which would need to be determined. So even if the matter could have proceeded, in view of the learned Attorney General's position it would not be fair to his client to simply proceed with the matter today. Further, in view of the learned Solicitor

General's position too, it would also not be fair on his client to proceed despite the fact that Mr Radclyffe and Mr Traczyk may have been of the opposite views.

In the circumstances of this case, the appropriate order for costs is, costs in the cause.

ALBERT R. PALMER
A R PALMER
JUDGE