Rebitai v Chow [2000] SBHC 46; HC-CC 108 of 1998 (21 November 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 108 of 1998

CLARA REBITAI

V

FRANCIS CHOW, R.E.G.S LIMITED, ONAGA CORPORATION LIMITED
AND F.C. LIMITED

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

Hearing: 16th November 2000
Ruling: 21st November 2000

Mrs A. N. Tongaturu for Plaintiff
Mr. A. Nori for Defendants

RULING

(Kabui, J): The Plaintiff filed a Writ of Summons together with a Statement of Claim on 26^th June 1998 against the Defendants, claiming relief based upon her Statement of Claim. The Defendants filed a Memorandum of Appearance on 1^st July 1998. The Plaintiff filed the particulars of her Statement of Claim on 24^th July 1998. The Defendants filed their Defence and Counter-Claim on 10^th August 1998. The Plaintiff filed her reply and answer on 18^th September 1998. On 22^nd September 1998, the Plaintiff filed her request for particulars of Defence and Counter-Claim. The Defendants filed the answers to the Plaintiff’s request for further particulars on 7^th October 1998. A Consent Order for Directions was signed by the Registrar on 22^nd December 1998. The Consent Order is in these terms -

1. The parties each file and deliver an Affidavit of Documents within 42 days of the date of the making of this order;
   
2. Inspection of documents be carried out within 28 days thereafter;
   
3. Interrogatories, if any, be filed and delivered within 28 days thereafter;
   
4. Answers to interrogatories, if any, on oath be filed and delivered within 14 days thereafter;
   
5. The Plaintiff apply for the matter to be listed for trial within 30 days thereafter by production of a certificate of readiness for trial accompanied by a bundle pleading.
   

The Plaintiff complied with Direction 1 above on 29^th January 1999 whilst the Defendants did so on 15^th February 1999.

The total number of days required to complete the steps to be taken in compliance with the order for directions would have been 142 days. In terms of months, it would have been a little over 4 months. The trial date would have been fixed sometime in May 1999 within the time schedule fixed by the order for directions. The fact however is that no date for the trial of this case has ever been fixed by the Plaintiff in consultation with the Registrar of the High Court. There was a period of long delay until the Defendants filed on 2^nd May 2000 a Notice of intention to proceed with the threat to strike out the Plaintiff’s action on the following grounds –

(1) the Plaintiff has failed to prosecute her claim;

(2) in the alternative, there was –

• (a) no marriage; and
  
• (b) no business partnership between the Plaintiff and the First Defendant.
  

The Defendants waited for about 2 months and then filed a Notice of Motion on 14^th July 2000 seeking the determination of the following issues of law –

1. Whether the Plaintiff is legally married to the First Defendants;

2. Whether a partnership existed between the Plaintiff and the First Defendant in connection with the formation, capitalisation and management of the REGS Store, the R.E.G.S. Limited, the Onaga Corporation Limited and the F.C. Limited;

3. Whether the First Defendant holds in trust for the Plaintiff any interest in any property or asset acquired using funds generated by R.E.G. Store, the R.E.G.S. Limited, or the F.C. Limited;

plus such orders as the Court deems fit and equitable and costs. This Notice of Motion came before me on 9^th August 2000. At this hearing, Mr. Katahanas of Sol-Law informed me that his firm Sol-Law had been the Plaintiff’s solicitors on record but since the Plaintiff had recently instructed Mrs N. Tongarutu as her new solicitor, Mr. Katahanas sought leave to withdraw. Leave was accordingly granted. I was told by Mrs N. Tongarutu that there had been disagreement over fees between Sol-Law and the Plaintiff and thus the change of solicitors. Disagreement over fees may have been the cause for the delay in fixing a hearing date as envisaged by the Consent Order for directions on 22^nd December 1998. The Defendants’ Notice of Motion came before me three times previously but was adjourned each time for good reason. It finally came before me on 16^th November 2000 for hearing. By filing the Notice of intention to proceed on 2^nd May 2000, the Defendants seemed to have acted under Order 64, rule 9 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). Rule 9 states

“In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall be deemed a proceeding within this Rule.”

The Defendants’ Notice of intention to proceed reflects this.

The terms of the Notice of intention to proceed speaks for itself. That is, the Defendants threatened to strike out the Plaintiff’s action on the basis that the Plaintiff had failed to prosecute her claim against the Defendants. In the alternative, there was no marriage nor was there any partnership between the Plaintiff and the 1^st Defendant. The Defendants’ Notice of intention to proceed culminated in the filing of the Notice of Motion dated 14^th July 2000 above by them. In his written submissions to the Court, Counsel for the Defendants, Mr. Nori, cited Order 27, rule 2 of the High Court Rules as being the basis for the Defendants’ Notice of Motion. Rule 2 states

“Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Court at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.”

Rule 2 above cited is based upon Order 25, rule 2 of the Rules of the Supreme Court 1883 as published in the Annual Practice 1961, Volume 1. The effect of Order 27, rule 2 of the High Court Rules is that any party may raise any point of law on the pleading at the trial or thereafter. However, where the point of law is intended to be disposed of before trial, the parties must agree to it by mutual consent or one of the parties may by application ask the Court to make an order to that effect whereby the point of will be set down for hearing and be disposed of at any time before the trial. These steps are normally taken at the order for directions stage.

This is not what happened in this case. Here, the Defendants on their own motion unilaterally filed a Notice of Motion and served it on the Plaintiff calling upon the Plaintiff to attend Court and to say why the Court should not grant the relief sought in the Notice of Motion. For this reason, the Defendants, in my view, did not comply with Order 27, rule 2 above. They had adopted a different approach for the purpose of invoking the application of Order 27, rule 2 of the High Court Rules. The proper practice is as described by Bernard C. Cairns in Australian Civil Procedure, 1980 at pages 163 – 166 and pages 167 - 168. I can do no better than to quote the exact words of the learned author at pages 163 – 4 in these terms,

“Any matter which could, at common law, be raised by a demurrer can now be raised by stating a point of law in the pleadings. If a point of law is raised it is decided by the trial judge, either during or after the trial. By the consent of the parties, or order of the court, a point of law raised in the pleadings may be set down for hearing as a preliminary matter. In those cases where the decision on that point disposes of the action, judgment is entered without the need for a trial. Remedies available under the rules are similar to those provided by the demurrer, except that one party cannot unilaterally set down a preliminary matter. That can be done only with the consent of the parties or, failing such consent, leave of the court. Control is thus conferred so that the action is not unnecessarily delayed by a defendant playing for time. ...

... The substance of the present rule is that it allows a party to raise what is now referred to as an objection in point of law. When the point is pleaded alone, it assumes the truth of the facts alleged in the opposite pleading, and pleads that they do not disclose a cause of action or defence, as the case requires. It is not the same as a plea in confession and avoidance because it does not allege additional facts. It is distinguished from a denial in that it assumes the truth of what is alleged on the other side. To assert that the alleged facts are not sufficient in law is the only role of the objection in point of law. ...”

At pages 165 – 6, the author continues

“... Where a party wishes to rely on a point of law at the trial, the better view, it is submitted, is for it to be stated in the pleadings. If the substantial point is one of law, then it should be treated as a special matter, and pleaded as such. A point of law which is not central to the claim or defence may be pleaded, but it is not mandatory to do so. The point can be taken at the trial, even if it is not pleaded. A fact that has to be proved to maintain the contention in law must be pleaded; if it is not it cannot properly be proved.

In the ordinary course a point of law arising on the pleadings is decided by the trial judge. It may be decided at or after the trial, it is a matter of discretion for the judge. He has the discretion to deal with the issue at the stage he considers it appropriate to do so. If the issue involves findings of fact, then it is not dealt with until the evidence has been completed. In this sense the issue of law on the pleadings is considered in the same way as any other matter arising at the trial. Pleading the point of law simply puts on record, and brings to the notice of the opponent and the court, the nature of the case to be made at the hearing. ...”

In this case, it is assumed that the Defendants did raise points of law in their pleading as nothing to the contrary was taken up by the Plaintiff in argument. However, Order 69 of the High Court Rules applies where the High Court Rules have not been complied with by any party before the Court. The effect of Order 69 of the High Court Rules is that non-compliance with the High Court Rules does not render any proceedings void but may be set aside as the case may be. Here, the Plaintiff did not seek to attack the irregularity of the Notice of Motion filed by the Defendants and therefore were taken to have waived any irregularity in the Defendants’ Notice of Motion.

The effect of this is that I heard the Defendants’ Notice of Motion on 16^th November 2000 as though the parties had complied with Order 27, rule 2 of the High Court Rules. The object of the Defendants’ Notice of Motion was to dismiss the Plaintiff’s action on the basis that my ruling on the points of law raised in their Notice of Motion would dispose of the case without proceeding to trial and save costs. I had discussed in this regard the procedure under this Order and rule, its purpose and the practice of the Courts in this respect in Joses Wawari Sanga & Others v Public Service Commission (Civil Case No. 018/99) although the Notice of Motion in that case was based upon Order 27, rule 3 of the High Court Rules. The procedure under Order 27, rule 2 of the High Court Rules above can be invoked any time by the parties or any of them.

There is a warning, however, expressed by the Courts in exercising the discretion of the Courts under Order 27, rule 2 of the High Court Rules or under any corresponding Orders and rules elsewhere for that matter. The warning is that it can be risky business to jump to conclusions in the absence of all the relevant evidence being made available to the Court where the facts are in dispute or facts and law are so mixed up. (See Carl Ziess Stiftung v Herbert Smith & Co. [1969] 1 Ch. 93 and Radstoch Co-operative & Industrial Society Ltd. V Norton Radstock Urban District Council [1968] 1 Ch. 605). Again, at pages 167 – 8, Bernard C. Cairns continues,

“While the rule confers a useful procedure it is one that can be used only rarely. Difficulty often arises when the court is required to decide matters of law before the fact situation has been investigated. The court will not decide a preliminary point of law if it is dependent on disputed questions of fact. This was noted by Lord Denning, M.R. in Carl Ziess Stiftung v Herbert Smith & Co. where he said:

I quite agree that, in many cases, the facts and the law are so mixed up that it is very undesirable to have a preliminary issue.

Frequently it is difficult to reach a decision on the law with only the pleadings, perhaps supplemented by admissions of agreed facts, to guide the court on the factual situation. Often obscure facts, considered by the parties to be unimportant, become relevant during argument. What is relevant in law is always governed by the facts, if the latter are not fully enumerated, it becomes speculative to select and apply the correct rules of law. ...

Most frequently the problem is that it is too difficult to foresee what facts are relevant to the issue of law on the pleadings. It follows that if there is any dispute of fact on the pleadings, there should not be a preliminary issue on anything connected with the disputed facts. Moreover, as it is virtually impossible to completely separate the facts from the law, it is an exercise that should be attempted only where the facts are beyond dispute. ...

Having stated the practice under Order 27, rule 2 of the High Court Rules, I now turn to the facts of this case. The facts as shown by the pleadings up to the date of the filing of the Notice of Motion, are about marriage in custom according to the customary practice on the Island of Makira, the question of partnership between the parties and the question of the appropriate form of trust. First of all, the facts are not agreed. Whilst the Plaintiff maintains in her Statement of Claim that she was married in custom to the 1^st Defendant, the 1^st Defendant denies it in his Defence. These opposing positions were maintained by both parties during respective submissions on the Defendants’ Notice of Motion. This position obviously calls for the calling of evidence at the trial to establish where the true lies and the determination of the legal position reflecting the facts so proved in evidence. The matter is further complicated by the fact that the 1^st Defendant had been legally married to a Chinese woman in about 1974 and that relationship terminated in about 1975. The law and the facts are not very clear at this stage and only through examining of the parties and their witnesses, if any, at trial would the final position on the facts and law become clear to the Court. The same is true with regards to the existence or the non-existence of a partnership relationship between the parties. The facts on this issue are also not agreed although this issue is not pleaded by the Plaintiff in her Statement of Claim. The issue of trust in whatever form is also an important issue. Again, the facts on this issue are not agreed. This was evident during the submissions by both Counsel at the hearing of the Defendants’ Notice Motion. The number of properties acquired during the course of the alleged custom marriage between the parties and the business operations established during that same period of time are substantial and each must be examined in detail in order to establish the existence or otherwise of a trust in whatever form. This cannot be clarified until all the relevant evidence is produced by the parties in Court. The law is also not clear at this stage. Trust is a general word. What type of trust, if any, can only the established in each case of the properties and business establishments acquired during the alleged marriage, by hearing all the evidence at the trial. It is too early to do so at this stage. There is the real doubt that some evidence of great significance is being missed if the matter is disposed of at this stage. It is significant to note that whilst each of the parties have filed affidavits of documents, such documents as evidence in the trial are yet to be produced to the Court. Such documents, if relevant, may hold the keys to the final determination of the issues raised as points of law in this case. One cannot be sure that one is correct at this stage. On balance, it is best to leave these issues until the trial is complete. I can understand the Defendants’ feeling of frustration over the delay by the Plaintiff and thus resorting to the use of Order 64, rule 9 of the High Court Rules. The fast-tracking procedure under Order 27, rule 2 of the High Court Rules depends upon the discretion of the Court - a discretion that is not freely available for use in all cases. The Defendants, in my view, should have acted under Order 33, rule 21 of the High Court Rules, if there was a case for doing so, to meet the Plaintiff’s case for long delay. Rule 21 states

“If any party fails to comply with any order to answer interrogatories, or for discovery or production or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly.”

The rationale behind this Order and rule in their amended form in the Rules of the Supreme Court 1965 published in the Supreme Court Practice 1973, Volume 1 is stated at page 414 in these terms –

“... The principle is that it is the duty of the plaintiff’s advisers to get on with the case, since public policy demands that the business of the courts should be conducted with expedition. This is a general principle; it applies to all the stages of an action before trial, and is not limited only to actions for damages for personal injuries, although it applies with greater force to such actions. ...”

The Defendants’ Notice of Motion appears to have been based upon Order 64, rule 9 as read with Order 27, rule 2 of the High Court Rules. In this case, the delay was over compliance with the Order for directions dated 22^nd December 1998. The specific remedy for this kind of conduct at that stage by the relevant party’s Solicitor is to be found in Order 33, rule 21 of the High Court Rules. The Plaintiff and her Solicitor should have been called to account for the long delay under Order 33, rule 21 above. The Defendants apparently did otherwise and sought remedy under Order 27, rule 2 as read with Order 64, rule 9 above. This road is fraught with difficulties.

As for me, this is not a case where I should exercise my discretion in favour of the Defendants. I refuse this application. This application is dismissed. Now that the Plaintiff has got a solicitor, the date of trial should not be far too long to fix in consultation with the Registrar of the High Court. The case should proceed to trial. I make no order for costs.

F.O. Kabui
Judge