Lae v Valahoana Company Intergrated Development [2000] SBHC 2; HC-CC 269 of 1999 (28 January 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 269 of 1999

LAWRENCE LAE AND WILLIE KAREJAMA

-v-

VALAHOANA COMPANY INTEGRATED DEVELOPMENT AND OTHERS

High Court of Solomon Islands
(F.O. KABUI), J)

Date of Hearing: 27 January 2000
Date of Ruling: 28 January 2000

F. Waleanisia for the Plaintiff
P. Tegavota for the Defendants
G. Samuel for the Attorney General

RULING

(Kabui, J): The Plaintiff filed a Writ of Summons against the Defendants on 17^th August 1999, together with a Statement of Claim. A Memorandum of Appearance was filed on behalf of the 1^st to the 5^th Defendants by Counsel acting for them on 31^st August 1999. A Memorandum of Appearance by the Attorney-General was filed on 7^th September 1999. On the 18^th August 1999, the Plaintiffs by Notice of Motion sought an injunction against the Defendants and an order to protect the proceeds of the sale of logs extracted from Sarangona Land. This being an ex parte application, I heard it in Chambers in the absence of the Defendants. I made an ex parte Order on 20^th August 1999 requiring the 1^st and 2^nd Defendants to pay into Court the proceeds of sale of all the logs felled on Sarangona Land until further Order of the Court together with a list of species of logs felled on Sarangona Land and their respective f.o.b. value. Mr. Waleanisia subsequently withdrew his application for an injunction and I made no Order to that effect.

This Order I made must have obviously been served upon the Defendants for the Defendants quickly responded by filing a Summons on 31^st August 1999 seeking to set aside the Order that I made on 20^th August 1999. A hearing of the Defendants’ application to set aside that Order I made took place on 1^st October 1999. However, I adjourned the matter and made certain directions on the request of Mr. Tegavota, Counsel for the Defendants. The Plaintiffs also filed an Amended Statement of Claim on that date.

Nothing more happened until Mr. Waleanisia Counsel for the Plaintiff wrote to the Registrar on 30^th November 1999 raising issues of compliance with the Order I made on 20^th August 1999 and compliance with one of the directions I made on adjournment on 1^st October 1999. The letter also raised the possibility of restraining the Defendants from logging on Sarongona Land and asked for a listing of the matter for hearing.

In response to the letter of 30^th November 1999, the Registrar said in his reply dated 7^th December 1999 that he took the letter as a request to restore the adjourned hearing of 1^st October 1999. The adjourned hearing of this date was a hearing of the Defendants’ application for an Order to set aside the Order I made on 20^th August 1999. The Plaintiff’s Counsel Mr. Waleanisia did not reject the Registrar’s understanding of the position. A notice of hearing was also enclosed in that letter of 7^th December 1999. The hearing on 27^th January 2000 was therefore a hearing or should be a hearing of the Defendants’ application to set aside the Order I made on 20^th August 1999. Whether or not this was the same understanding of Mr. Waleanisia, Counsel for the Plaintiffs, is not clear.

At the hearing on 27^th January 2000, Mr. Waleanisia, Counsel for the Plaintiffs, raised three matters which he called preliminary matters or points. First, he asked me to vary the terms of the Order I made on 20^th August 1999 to include or add an injunctive order against the Defendants on the basis of facts set out in an affidavit sworn by Willie Karejama on 24^th January 2000 filed the next day. Second, he asked that the Defendants file their Defence within 4 days from the date of the sitting of the Court. Third, he asked that I consider granting him leave to file proceedings for contempt of Court against the Defendants. I have to consider these points and rule on them. I do so now.

As to the first point, I would say this. The Plaintiffs must apply to the Court for an Order to vary its Order made on 20^th August 1999. The Plaintiffs must do this by way of Summons or Motion supported by the relevant affidavit evidence. This is the correct practice as pointed out by Mr. Tegavota, Counsel for the Defendants. The Plaintiffs did not do this in this case. Mr. Waleanisia, Counsel for the Plaintiffs simply asked for an injunctive order from the bar table based upon a filed affidavit. I do not accept this. The rules of practice in this Court must be adhered to if issues are to be properly defined and argued for the purpose of obtaining a binding determination by the Court. The second point raised by Mr. Waleanisia is really a matter for the Plaintiffs and the Defendants to consider and act. If the Defendants failed to file a defence within the specified period, the Plaintiffs were at liberty to enter judgment against the Defendants. Extension of time within which to file a defence could be mutually agreed by the parties themselves through their respective solicitors. Extension of time could also be ordered by the Court if necessary. (See Order 23 of High Court) Civil Procedure) Rules 1964 (the High Court Rules). In this case, none of these steps had been taken by the parties. In practice, it is the Defendant who requests an extension of time for filing a defence after the expiry of 14 days under Order 23 above of the High Court Rules. It is not the other way round where the Plaintiff feels obliged to ask the Court for an order that the Defendant must file a defence within a specified time. It is not just the practice under the High Court Rules. In this case, the Defendants should have filed a defence 14 days from the last day for filing an appearance. That is, the Defendants should have filed a defence by 25 September 1999. Both the Plaintiffs and the Defendants had done nothing to sort this procedural matter out between themselves. I feel I cannot accede to the Plaintiffs’ request for an Order that the Defendants file a defence within 4 days from the date of the sitting of the Court. This is the sort of application that the Defendants should be making to the Court for an extension of time. They are the defaulting party and not the Plaintiffs. They have not done so to date. The Plaintiffs are entitled to act appropriately against the Defendants for this reason. They have not. The third matter Mr. Waleanisia raised was an order for leave to issue proceedings for contempt of Court under Order 61, rule 21 of the High Court Rules. Again, the procedure is that the Plaintiff must apply to the Court by way of notice of motion supported by affidavit evidence. Again, in this case, Mr. Waleanisia, Counsel for the Plaintiffs asked from the bar table for leave to issue a Writ of attachment against the Defendants. There was also a lack of supporting affidavit evidence to support his request. I will not also allow his request on this point. I therefore rule against the Plaintiffs on these three points raised by Mr. Waleanisia, their Counsel. However, I do feel that in the interest of justice I should make some directions regarding the conduct of this case at this stage. Accordingly, I make the following orders –

1. That the Plaintiffs and the Defendants mutually agree within 7 days hereof an extension of time within which the Defendants must file a defence;
   
2. That failing this being done under Order I above, the Defendants seek a Court Order to this effect within 7 days hereof;
   
3. That the Plaintiffs be at liberty to file within 7 days hereof an application to vary the ex parte Order I made on 20^th August 1999;
   
4. That the Plaintiffs be at liberty to file within 7 days hereof a notice of motion for leave to institute contempt proceedings against the Defendants;
   
5. That thereafter the Defendants’ application for an Order to set aside the ex parte Order I made on 20^th August 1999 be heard on a date to be fixed by the Registrar;
   
6. That this matter be adjourned accordingly;
   
7. Costs be in the cause.
   

The effect of Orders 3, 4 and 5 is that the Court will hear all these applications if necessary, together on the date to be fixed for the hearing of the Defendants’ Summons filed on 31^st August 1999. Orders 1 and 2 are necessary because the Plaintiffs have by their conduct waived their right to apply for a judgment in default of pleading under Order 29 of the High Court Rules.

F.O. Kabui
Judge