HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 242 of 1996
SELWYN DIKA (Representativeative of Mamara clan),
JOSES
LOTE (Representative of Bulau
clan),
GASPER BANA
(Representative of Etini clan)
v
DAVID LENGA SOMANA
High Court of Soloslands
(Muria, C.J.)
Civil Case No. 242 of 1996
Hearing: 3 February 1999
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Ruling: 15 February 1999
T Kama for Plaintiffs
C. Ahsley for Defendant
MURIA CJ:
This is an application by way of Summons brought by the plaintiffs
seeking an enlargement of time to appeal against
the order of the
Registrar made on 5 May 1998 whereby the learned Registrar struck out
the plaintiff’s Statement
of Claim, ordered costs against them and gave
judgement to the defendant on his counter-claim.
There is power in this Court to enlarge time, both under the rules and
in the Court’s inherent jurisdiction, to
ensure the attainment of
justice according to law in disputes brought before the Court. See
Reef Pacific Trading Limited -v- Island Enterprises Limited, Civ.
App. Cas No. 1 of 1992 (CA) (Judgement given on 31/8/95) which also
stated that procedural rigidity as
shown by past cases such as
Whistler v Hancock (1878) 3 QBD 82, should no longer be allowed to
apply.
The Court of Appe Reef Pacific Trading Ling Limited -v- Island
Enterprises Limited, however, sounded the warning that while the
procedural rigidity of the past ought to be avoided, so too the
indiscipline of indifference to procedural rules and orders must be
avoided. It is a matter which affects the exercise
of the discretionary
power of the Court.
he circumstances of the present case had been set out in anin an earlier
judgement of this Court, in this matter also,
on 21 August 1998. In that
judgement, this Court refused to set aside the Registrar’s order made on
5 May 1998.
I need not repeat all the facts giving rise to the
Registrar’s decision. Suffice that I only mention some of them.
Thintiffs sued out a Writ with a Statement of Claim against tnst the
defendant on 22 August 1996 and served on
the defendant on 4 October
1996. The defendant entered appearance on 14 October 1996 and filed
Defence and Counter-Claim
against the plaintiffs on 25 October 1996. A
period of 13 months had gone-by without the plaintiffs taking any
further actions on their claim. On 1 September 1997 the defendant issued
a Summons seeking to strike out the plaintiff’s
Statement of Claim for
want of prosecution. When the Summons was heard on 20 November 1997,
Counsel for the plaintiffs
sought and was granted an adjournment on the
basis that he needs time to take instructions. Counsel indicated then
that a Defence to the Counter-Claim would be filed. The Summons was
re-fixed for 4 December 1997 at which time when
the matter was heard,
Counsel for the plaintiffs again sought adjournment on the basis that
his clients who were
not in Ysabel were somewhere in Honiara and who had
just given instructions but unable to file affidavit in response because
of the time factor. The Court again granted an adjournment on 31 March
1998, the defendant’s summons was reissued
and fixed for 14 April 1998.
The matter came before the Registrar on 14 April 1998 at which hearing,
Counsel
for plaintiffs again sought an adjournment on the basis that he
had no notice of the hearing. It was on that occasion that
the
plaintiffs, for the first time, sought an enlargement of time to file
Defence to the defendant’s Counter-Claim
which was filed and served on
the plaintiffs in October 1996. The Court granted, once again, an
adjournment to
the plaintiff’s and directed Counsel for the plaintiffs
to file an application for enlargement of time to file a Defence
to the
defendant’s Counter-Claim so that both the application for enlargement
of time and the defendant’s summons
could be dealt with together on 5
May 1998 at 4.30pm. One hour before the hearing on 5 May 1998 the
plaintiffs
filed the application for enlargement of time. The learned
Registrar granted an abridgement of time in respect of the plaintiffs’
application and dealt with the two applications together. At the end of
the hearing, the learned Registrar dismissed
the plaintiffs’ application
for enlargement of time to file Defence to the defendant’s Counter-Claim
and struck
out the plaintiffs’ Statement of Claim and ordered costs
against the plaintiffs.
On 18 August 1998, this Court dealt with with the plaintiffs’ application
seeking to set aside the Registrar’s
Order made on 5 May 1998. This
Court held that the judgement made by the Registrar was a judgement on
the merit
of the case and the proper challenge to that decision was by
way of an appeal, pursuant to O.57 r 1A(3). The Registrar’s
decision was
affirmed by this Court. In that application this Court viewed the
plaintiffs conduct of the matter
as an abuse of the process of the
Court. Those circumstances remain the same up to the present moment. In
my
view they can equally be described as reflecting to some extent an
indifference to the procedure and orders of the Court
on the part of the
plaintiffs and their solicitors. Such indiscipline of indifference to
procedural rules and
orders must be avoided as pointed out by the Court
of Appeal in Reef Pacific Trading Limited -v- Island Enterprises
Limited.
In the present proceedings, the plaintiffs are now seeking leave to
enlarge time to appeal against the same decision
against which they
sought to set aside and was rejected in August last year. As I have
already pointed out, the
circumstances are still the same now as they
were then. Leave to extend time to appeal can only be granted in such
circumstances on exceptionally good reason.
e main complaint by Counsel for the applicants here is that that the
learned Registrar at the time of the hearing
only read the pleadings and
made the decision without allowing Counsel to make submissions. I cannot
accept this
argument. The record clearly indicated that there was a
hearing on 5 May 1998 during which Counsel for the plaintiffs made
an
application for abridgment of time. Both Counsel were present before the
Registrar who following the hearing,
dismissed the application for
abridgement of time as well as for enlargement of time and granted the
defendant’s
application for interlocutory judgement on his
Counter-claim. The plaintiffs’ Statement of Claim was struck out. Mr.
Kama pressed the point, however, that, although present, he was not
given the opportunity to be heard on the question
of enlargement of
time, yet the Registrar went ahead and dismissed his application for
enlargement of time to
file Defence.
In an application such as this a judge can only go by the rthe record of the
proceedings complained of. The record
shows, as I have already said,
that there was a hearing. Part of what transpired at the hearing is as
follows.
“TK - ‘abridgmeidgment’ ..........
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I have been ill with Malaria, hence lateness of application….therefore
ask for abridgement of time.
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CKA - Can make comments of both applications.
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Ct - bsp; (1) Plaintiff applic tion for abridgement and enlargement are
dismissed.
(2) The defendanendant’s application for Interlocutory Judgement is granted.
Judgement for the Defendant on Claim
with damages to be assessed.
(3) Plaintiffs claim struck out.
(4) Costs of Deof Defendant to be paid by the plaintiffs, to be taxed if not
agreed.
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Reasons
There has been intolerable delay by the plaintiff. This is a 1996 case.
Nov. ‘97 but application to strike out
- adj, to December then to April,
then to May. Still no further forward.
\
Judgment must go to the Defendant”
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The contention by Mr. Kama is that he was not allowed by the Registrar
to argue his case for enlargement of time
to file defence after his
application for abridgement of time was heard and dismissed. The record
shows that
the question of enlargement of time to file defence had not
been argued by Mr. Kama. But the learned Registrar, in his
decision
clearly ordered the issue of enlargement of time be dismissed. It would
appear that Mr. Ashley supported
the contention that the learned
Registrar did not hear the application for enlargement of time to file
defence.
At the hearing on 18 August 1998, Mr. Ashley was recorded as
saying that:
“The Registrar orar of High Court said that there was no need to go into the
plaintiffs’ summons as it was filed
only half-hour before the hearing of
the defendant’s summons.”
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Mr. Kama deposed in hfidavit that the learned Reed Registrar said that
he “did not need to hear anyone” and then
dismissed Counsel’s
application for enlargement of time. Whether that is correct or not, I
do not know. What
I feel the record would support is the contention that
Mr. Kama was not heard on the question of enlargement of time to
file
defence before the learned Registrar dismissed it. This is a breach of
the rule of natural justice. Of course,
not all breaches of the rule of
natural justice would earn an aggrieved party a new hearing. However,
where the
denial of natural justice affects the entitlement of a party
to make submissions on an issue, especially when the issue
involve is
whether the evidence in support of the issue should be accepted, the
requirements of natural justice
are important to be observed. See
Price Waterhouse & Ors -v- Reef Pacific Trading Limited & Anor.
(1996) Civ. Appeal No. 3 of 1995 (Judgment given on 29/4/96) (CA).
The breach of the rule in the present case is fatal, in my judgement, to
the learned Registrar’s decision on the
question of enlargement of time
to file defence. No doubt the plaintiffs’ challenge to the learned
Registrar’s
decision earlier on 18 August 1998 stemmed from the same
grievance. This Court dismissed that challenge on 21 August 1998,
as the
Registrar’s decision was a decision on the merit and can only, as such,
be challenged by an appeal, not
by a review process of an application to
set aside.
Taintiffs, now proceeded by way of appeal. However, they arey are out of
time and hence this application to extend
time to appeal out of time.
This Court has the power to extend time if the justice of the case so
requires. See
Reef Pacific Trading Limited -v- Island Enterprises
Limited (1995) Civil App. No. 1 of 1992 (Judgement given on 31
August 1995) (CA). In the case of Price Waterhouse (supra) the
Court of Appeal sets out the principles to be applied in exercising the
Court’s discretion to extend
time to appeal. Although that case,
concerns an appeal to the Court of Appeal, the principles stated therein
apply to exercise by this Court of its discretion to extend time to
appeal. In that case the Court of Appeal stated at
page 5-6 of the
judgment:
“In exercising this discretion we bear in mind the following
principles:
