Dika v Somana [1998] SBHC 110; HCSI-CC 242 of 1996 (21 August 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 242 of 1996

SELWYN DIKA
(Representative of Mamara clan),
JOSES LOTE
(Representative of Bulau clan),
CASPER BANA
(Representative of Etini clan)

-v-

DAVID LENGA SOMANA

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 242 of 1996

Hearing: 18 August 1998
Judgment: 21 August 1998.

T. Kama for Plaintiffs
C. Ahsley for Defendant

MURIA CJ: This is an application by the plaintiffs seeking an order to set aside the Registrar’s Order made on 5 May 1998 striking out the plaintiffs’ Statement of Claim for want of prosecution and entering judgment for the defendant on his counter-claim.

The plaintiffs sued out a Writ with a Statement of Claim against the defendant on 22 August 1996 and served on the defendant on 4 October 1996. Appearance had been entered for the defendant on 14 October 1996 and Defence and Counter-Claim were filed on 25 October 1996 on behalf of the defendant. No action had been taken by the plaintiffs for 13 months. On the 1 September 1997 the defendant took out a Summons seeking to strike out the plaintiffs’ Statement of Claim for want of prosecution. On 20 November 1997 that Summons was heard, at which time Counsel for the plaintiffs sought and was granted an adjournment on the basis that counsel was yet to take instructions from the plaintiffs who were in Ysabel. Counsel then indicated that the plaintiffs had a Defence to the Counter-Claim but needed instructions. The hearing of the Summons was fixed for 4 December 1997. When the Summons came on for hearing again on 4 December 1997, Counsel for the plaintiffs again sought adjournment on the basis that his clients were not in Ysabel but that they were in Honiara and that he had just got in touch with them and had just taken instructions from them and that he needed time to prepare affidavit in response. Counsel sought a one week adjournment. The court granted him a 14 days adjournment.

The summons was re-issued on 31 March 1998 by the defendant to strike out the Statement of Claim returnable on 14 April 1998. The matter came before the learned Registrar in Chambers on 14 April 1998 and Counsel for the plaintiffs again sought an adjournment on the basis that he had no notice of hearing of the application. It was on 14 April 1998 that the Counsel for the plaintiffs first indicated to the Court that his clients need an enlargement of time to file Defence to the Counter-Claim. The Court granted an adjournment and told Counsel for the plaintiffs to file an application for enlargement of time which would be heard together with the defendant’s on 5 May 1998.

The matter came on for hearing on 5 May 1998 at 4.30pm. One hour before the hearing on that day, Counsel for the plaintiffs filed an application seeking to enlarge time to file Defence to the Counter-Claim. The learned Registrar granted an abridgement of time to hear the plaintiff’s application and dealt with the two applications together. At the end of the hearing, the learned Registrar dismissed the plaintiffs’ application and gave judgment for the defendant on his Counter-Claim. The learned Registrar also struck out the plaintiffs’ Statement of Claim and ordered costs against the plaintiffs. The learned Registrar gave brief reasons for his decision. He said:

“There has been intolerable delay by the plaintiff. This is 1996 case. November 1997, brought application to strike out - adjournment to December, then to April, then to May. Still no further forward. Judgment must go to the Defendant.”

The formal order was thereafter drawn up and signed on 14 May 1998.

The hearing before the learned Registrar on 5 May 1998 was brief. However I am satisfied that the learned Registrar made his decision after having heard both Counsel and upon reading the materials before the Court. This is therefore not a judgment in default of pleadings as such but a judgment on the merit of the case. Since 20 November 1997 when the defendant took out the Summons to strike out the plaintiffs Statement of Claim, there had been all along ample opportunity for the plaintiffs to put to the Court reasons why their Statement of Claim ought not to have been struck out. They chose not to do so and instead sought adjournment after an adjournment and it was not until 14 April 1998 that they sought enlargement of time to file Defence to the defendant’s Counter-claim. They simply chose to ignore the defendant’s application seeking to strike out their Statement of Claim after more than one (1) year of doing nothing about it and instead ran to the Court seeking extension of time to file Defence to the defendant’s counter-claim. As far back as 20 November 1997 the plaintiffs had indicated that they had a defence to the defendants Counter-Claim. Up to 5 May 1998 no Defence had been filed. With respect, the plaintiffs conduct of the matter throughout in this case may well be viewed as an abuse of the process of the Court.

There is power both under the Rules and in the inherent jurisdiction of the Court to strike out pleadings which are vexatious or an abuse of the process of the Court and to dismiss the action. This inherent power has been extended to protect the Court from the abuse of its powers by litigants. See Reichel -v- Magrath, 14 Ap. Cas. 665 and Metrop. Bank-v- Pooley, 10 App. Cas. 210.

The learned Registrar in this case took a very firm view on the conduct of this case by the plaintiffs including the considerable delay in prosecuting their claims. He considered the materials before the Court which he was entitled to do in addition to what Counsel for the parties had to say. Having done so, he dismissed the plaintiffs’ application seeking extension of time to file Defence to the Counter-Claim and ordered the plaintiffs Statement of Claim to be struck out and as no Defence had been filed against the defendant’s Counter-Claim, gave judgment for the defendant on his Counter-Claim.

With its powers under the High Court (Civil Procedure) Rules, O. 27 r 4, as well as under its inherent jurisdiction, the Court “may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just.” The learned Registrar so exercised the Court’s powers in this case. This is an exercise of a discretionary power vested in the Court exercised by the Registrar. I am not prepared to interfere with the exercise of that discretion unless it can be shown that the decision will result in injustice. That has not been shown in this case.

Once the decision was, made by the Registrar striking out the plaintiff’s Statement of Claim and gave judgment for the defendant, that decision can only be challenged by way of an appeal to a Judge which appeal must be brought within seven (7) days of the judgment or order of the Registrar. (0.57 r 1A (3)). These proceedings now brought by the plaintiffs are not by way of an appeal but rather seeking to set aside the Registrar’s order pursuant to 0.13 r 8 and 0.29 r.12. I agree with Mr. Ashley that those provisions do not apply in this case. However, even if I were to treat the plaintiffs’ application as an appeal, it would be out of time.

Taking into account all that I have said, I feel the only order this Court should make is that the plaintiffs’ application must be refused with costs.

Order accordingly.

(GJB Muria)
CHIEF JUSTICE