Jovere v Makoto [2001] SBHC 163; HCSI-CC 138 of 1994 (28 March 2001)

CC No 138, 94, HC

IN THE HIGH OF SOLOMON ISLANDS

Civil Case No 138 of 1994]

LUXTON JOVERE

-v-

JACOB MAKOTO AND NORTH NEW GEORGIA TIMBER COOPERATION

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 138 of 1994

Hearing: 28 March 2001
Ruling: 28 March 2001

N. Tongaruru for Plaintiff
T. Kama for First Defendant
J. Apaniai for Second Defendant

MURIA CJ: This is an application to strike out the plaintiff’s action for non-compliance with the order of this Court dated 9 August 2000. That order requires the plaintiff to take certain action, namely to file reply within 14 days and not later than 21 days.

A reply was filed by plaintiff on 23 August 2000 which Mr. Kama said was only to second defendant’s Defence but not to first Defendant’s Amended Defence.

Counsel for plaintiff agreed that the plaintiff did not fulfill the second part of that order but that, she said, was because of the plaintiffs attempts to settle the matter out-of-Court.

I have listened to the submissions and having considered the affidavits before the Court, I am of the view that the plaintiff has failed to comply with the order of the Court of 9 August 2000. This however does not automatically restrict the Court to make the order sought by the defendant. The discretion of the Court remains intact to do justice to the parties.

The cases cited by Counsel must be considered in their own circumstances, although I bear in mind the principles stated in those cases. In the cases cited, the defaulting parties, have not taken any action from the time the order of the Court was made to the time the applications to strike out were made. So the Court in those cases was correct to order striking out cases for non-compliance with the Court order.

In the present case, although the plaintiff, has not made application to vary the order of 9 August 2000 to enable him to pursue settlement out of Court process, he nevertheless, through his solicitors took the initiative to pursue an out-of-court settlement of the case. That, cannot be simply ignored by the Court.

I am satisfied that the parties in this case have been aware of the out-of-court steps initiated by the plaintiff. They may not succeed or they may succeed. But in the meantime, it is one of the forms of steps taken to settle this case.

Although the plaintiff in this case is in breach of the order of this court of 9 August 2000, the circumstances of this case do not bring that breach into the categories urged upon by Mr. Kama and Mr. Apaniai.

I would therefore in the circumstances of this case refuse to strike out the action. In order, however, to bring this case to a speedy conclusion, I order that the plaintiff shall within 21 days from today pursue and conclude the out-of-court settlement process which he is taking. Failure to do so, the parties are at liberty to come back to this Court to apply to have the case struck out.

Each party to bear its own costs.

Order accordingly.

(Sir John Muria)
CHIEF JUSTICE