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v
DAVIDDAVID LENGA SOMANA
High Court of Solomon Islands
(Muria, CJ)
Civil Case No. 242 of 1996
T. Kama for the Plaintiffs
C. Ashley for the Defendant
JUDG JUDGMENT
(Muria, CJ):
The plaintiffs were granted extension of time by the Court on 15th
February 1999 and have now brought this appeal against the decision of
the Registrar made on 5th May 1998 striking out the
Plaintiffs’ Statement of Claim and giving Judgment for the defendant on
his counter
claim
Brief Background
The backgroundhe case leading up to the Rthe Registrar’s Order are set
out in the two previous judgments of this
Court on 21st
August 1998 and 12th February 1999. I will only briefly set
them out here. On 22 August 1996, the plaintiffs issued a Writ and
Statement
of Claim against the defendant who was served on 4th
October 1996. The defendant entered appearance on 14 October 1996 and
filed Defence and Counter-Claim against
the plaintiffs on 25th
October 1996. A period of 13 months had gone-by without the plaintiffs
taking any further actions on their claim.
On 1st September 1997 the
defendant issued a Summons seeking to strike out the plaintiff’s
Statement of Claim
for want of prosecution.
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When the Summons was heard on 20 November 1997, Coun 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 4th
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 31st
March 1998, the defendant’s summons was re-issued and fixed for 14 April
1998. The matter came before the Registrar
on 14th 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 5th May 1998 at 4:30 pm. One hour before the hearing
on 5th
May 1998 the plaintiffs filed the application for enlargement of time.
The learned Registrar granted an
abridgment 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.
The appellant’ argument
It is apparent from Counsel’s argument that the appellants’ attack on
the Registrar’s decision can, be placed
in two categories. Firstly, on
the question of delay in prosecuting the appellants’ claims, Mr. Kama
argued that
the Registrar failed to offer him the opportunity to justify
it. Secondly, on the question of striking out the plaintiffs’
Statement
of Claim and giving judgment for the defendant on his counter-claim, Mr.
Kama’s contention is that
the Registrar failed to consider the
appellants’ Statement of Claim and other materials before the Court and
failed to give the opportunity to the appellants to address the Court on
the merit of the defendants counter-claim.
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On the question of delay, Mr. Kama contended that the reason for such a
delay was that the solicitors for the
appellants had not received full
instructions from their clients. They had sought and were granted
adjournment
to enable them to obtain full instructions from their
clients. When the matter came before the Registrar, they still had
not
received full instructions. Mr. Kama argued that had the learned
Registrar given him the opportunity, he
would have explained to the
Court the reasons for the delay.
Onquestion of striking out the plaintiffs’ Statement of ClaimClaim, Mr.
Kama argued that the Registrar’s decision
to do so was miscarried.
Counsel contended that had the Registrar taken into account the
plaintiffs’ Statement
of Claim which contained materials that were
supportive of their claim and which provide the basis for their defence
to the counter claim, he would not have entered judgment for the
defendants. Again, Counsel submitted that the
failure by the learned
Registrar to give him the opportunity to be heard on, these matters
resulted in the Registrar
not considering the merit of the defendant’s
counterclaim, thereby giving rise to erroneous exercise of his
discretion.
It was a gross miscarriage of justice.
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The defendant supports the Registrar Orar Order
In support of the learned Registrar’s order, Mr. Ashley of Counsel for
the defendant contended that the plaintiffs
were clearly in default and
the Registrar’s order was justified. There was nothing to counter the
defendant’s
counter-claim and so the order made in favour of the
defendant was properly made.
Mr. Ashley further argued that even if the Court grants thts this appeal, the
order striking out the plaintiff’s
statement of claim should still
stand. This is because the plaintiffs were clearly in default of
pleading.
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Judicial discretion of the Registrar urar under the Rules
By virtue of Order 57 Ruleof the High Court (Civil Pril Procedure) Rules
the Registrar has been empowered to transact
all such business and
jurisdiction as may be transacted by a Judge in Chambers or a Court in
Chambers. The Rule
also provides for the exceptions. Rule 14 (10) of
Order 57 also provides that the Registrar shall have power to deal with
any proceedings necessary before the trial or hearing of any action or
matter and for leave to sign judgement
in default.
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It will be observed the Registrar, being empowerpowered to hear and
determine matters brought before him, is also
clothed with discretion in
the exercise of that power. The proper exercise of that discretion,
however, entails
due consideration of facts and materials placed before
the court on the matter. That being said, any exercise of the discretion
without due consideration of materials relevant to the matter before the
court would leave open the resultant
order of the court to challenge.
It must be pointed, however, that normally this court wout would not lightly
interfere with the exercise of a discretion
except on grounds of law. It
will, however, do so if the decision will result in injustice being done
as was
pointed in Kayuken Pacific Limited -v- Harper [1987] SILR
54. Thus the plaintiffs in the present case would have to show that the
Registrar had wrongly exercise his discretion as a
matter of law when he
made the order on 5 May 1998.
Factors to be taken into account in exercisincising discretion
In exercising a judicial discretion in matters such as the present one
where the coercive power of the Court is
invoked, the Court will be
minded to bear in mind factors such as the nature of the cause of
action, whether
the pleading discloses sufficient materials to raise the
claim contained in the statement of claim, whether the non-compliance
of
the forms of the action or the procedural rules should be allowed to
affect actual rights, nature of the delay
(if any) and opportunity to
explain the failure or delay in prosecuting the claim. Some or all of
these factors
may require the Court’s consideration. There is no fixed
rule that the Court must do so in all cases as each case differs
in its
nature and circumstances. The bottom line, however, must be the Court’s
basic function is to ensure that
the parties have a just solution to
their dispute according to law. It is therefore important that in
exercising
its discretion the Court must bear in mind this basic
function. See Reef Pacific Trading Limited -v- Island Enterprises
Limited Civil Appeal No: 1 of 1992 (C.A.) (Judgment given on 31
August 1995) which was a case concerning the exercise of the Court’s
discretion to extend time. The Court held that the basic function of the
Court was to ensure that the parties
have a just solution to their
dispute and that the procedural rules must not be narrowly construed so
as to frustrate
the attainment of justice in a dispute. Although that
case concerns the exercise of a discretion in relation to extension
of
time, the basic function of the Court as stated in that case equally
applies in the present case. So that
when the learned Registrar was
considering whether or not to strike out the plaintiffs’ Statement of
Claim and
give judgment to the defendant on his Counter-Claim, he ought
to have borne in mind this basic function of the Court of
ensuring that
the parties should have a just solution to their dispute. That could
only be achieved if the factors
mentioned earlier were given
consideration and the Court’s discretion to be exercised accordingly.
re to consider relevant, fat, factors fatal to the decision.
This is a review by way of an appeal againstainst the learned –Registrar’s
decision made on 5 May 1998. As such
the Court can only determine what
actually had been done at the hearing by considering the record of the
proceedings
before the learned Registrar.
The hearing before the learned Registrar was brief. Part of what
transpired at that hearing is as follows:
“TK – abridgment”
<
I have bave been ill with Malaria, hence lateness of application.
\ask
for abridgment of
time.
CK CKA - Can make comments of both applications.
Ct- (1)
Plaintiff
application for abridgment and enlargement are dismissed.
(2) The defendant’s application for interlocutory judgement is granted.
Judgment for the Defendant on claim with
damages to be assessed.
(3) Plaintiffs cffs claims struck out.
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(4) Costs of Defendefendant to be paid by the plaintiffs, to be taxed if not
agreed.
>
Reasons
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There has been intn intolerable delay by the plaintiff. This is a 1996 case.
November 1997 but application to
strike out - adjourned to December then
to April, then to May. Still no further forward. Judgment must got to
the Defendant”.
The application by way of summons before the learned Registrar was filed
at 3:30 pm and the hearing was at 4:30
pm in the same afternoon on 5 May
1998. The summons seeks an enlargement of time to file defence to the
Counter-Claim
and for further directions. Also before the learned
Registrar was the defendant’s adjourned summons for striking out
plaintiffs’ Statement of Claim and for judgment on his Counter-Claim.
An abridgment of time was necessary for the plaintiffs’ ffs’ application to
be dealt with. The record shows that Mr.
Kama asked for abridgment of
time. He gave his reason for lateness in filing his application. He said
he was
suffering from malaria. The record shows that Mr. Ashley said
that he could make comments on both applications, that is,
on the
abridgment of time to hear application and an enlargement of time to
file defence. The next thing happened,
as shown on the record was that
the learned Registrar dismissed both the application for abridgment of
time to
hearing the application and enlargement of time to file defence
and gave judgment to the defendant on his Counter-Claim.
The plaintiff's
Statement of Claim was ordered to be struck out and awarded costs to the
defendant.
Unfortly, there were obvious flaw flaws which could be detected from the
record of the proceeding before the learned
Registrar. Firstly, it would
appear that Mr. Kama had not dealt with the question of enlargement of
time to file
defence. He only dealt with the question of abridgment of
time and yet the learned Registrar dismissed both the questions
of
abridgment and enlargement of time. Secondly, the record did not show
that Mr. Kama was given the opportunity
to comment on the defendant’s
application to strike out plaintiffs Statement of Claim nor is there
anything on
the record to show that Mr. Kama was given the opportunity
to comment on the question of entering judgment for the defendant
on his
Counter-Claim. Thirdly, the record did not show that the learned
Registrar gave consideration to the other
factors mentioned earlier,
including the Statement of Claim and the Defence to see if there was an
issue which
ought to be tried. In other words, before the decision was
taken to strike out the plaintiffs’ statement of claim, regard
ought to
have been taken on the pleading especially where a Statement of Claim
having been filed and Defence
also had been filed, to see if the
pleading disclosed sufficient materials to raise an issue which merited
trial.
Had not been done, I feel that there was ones one issue which could be regard
as a triable issue in this case.
That can be found in paragraphs 7, 8,
9, and 10 of the Statement of Claim. The claim in those paragraphs
raises
a challenge to a purported agreement relied on by the defence who
relied in paragraph Area) of his Defence on that agreement
which was
made on 24/6/81. The nature of the plaintiffs’ challenge to the said
agreement was that it was a fraud
which was obviously denied by the
defence. That should be made to go to trial.
The delay by the plaintiffs in tase to file a defence to thto the
Counter-Claim understandably gave rise to a
cause for concern and the
learned Registrar could well be justified in the view he took on it.
However, the failure
to take into account the factors which I mentioned
earlier in this Judgment together with the apparent breach of the rule
of natural
Justice could not justify the order which was made on 5 May 1998. The
denial of the opportunity to the plaintiffs’
Counsel to make submissions
on the important issues mentioned earlier, can only be seen as fatal to
the learned
Registrar’s order. It is fatal because it denies the
plaintiffs the opportunity to put their case properly before the Court.
The Court of Appeal had pointed out in Price Waterhouse & Others -v-
Reef Pacific Trading Limited & Another, Civil Appeal No. 5 of 1995
(CA) (Judgment dated 29/4/96) applying Jones -v- National Coal Board
[1957] EWCA Civ 3; [1957] 2 QB 55:
“there is one thing to which everyone in this country is entitled; and
that is a fair trial at which he can put
his case properly before the
Judge ...... No case is lost until the Judge has found it so; and he
cannot find
it without a fair trial, nor can we affirm it.”
Iy to same principle in the present case and having done so,e so, I
conclude that the order made by the learned
Registrar on 5 May 1998
cannot stand.
Conclusion and Order
Having considered this matter carefully and and in the light of what I have
said in this judgment, the only conclusion
that the Court can come to is
the plaintiffs have succeeded in showing that the learned Registrar had
wrongly
exercised his discretion as a matter of law when he made the
order on 5 May 1998. The appeal must be allowed. The order
of 5 May 1998
is quashed with all forms of execution of judgment or order related
thereto be set aside. The matter
is to proceed before the Registrar for
direction as to filing of defence to Counter-Claim by the plaintiffs and
such other directions necessary in the conduct of the case.
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Orders
uote>
1.
Appeal is allowed.
2. Order of 5 May 1998 is quashed with all forms of execution process
set
aside.
3. Registrar to give further directions as to the conduct of the case.
4. Cost in the cause.
(GJB Muria)
CHIEF JUSTICE
