Uluhoru v Isabel Timber Company Ltd [2001] SBHC 179; HCSI-CC 197 of 1999 (29 January 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 197 of 1999

JOHN ULUHORU, ELSIE KOITOKE, EILEEN SIPUNARU,
ANNETTE ILU AND CASPER BANA

v

ISABEL TIMBER COMPANY LIMITED

(KABUI, J)

Hearing: 26th January 2001
Ruling: 29th January 2001

G. Suri for the Plaintiffs
J. Apaniai for the Defendant

RULING

(Kabui, J): The Plaintiffs are trustees representing the Etingi Clan in the Ysabel Province. By Notice of Motion filed on 13th December 2000, they sought the following Orders –

(1) That the trial of this case be closed and that judgment be entered against the Defendant.
(2) The answer to the first question in paragraph 1 of the Originating Summons is, therefore, in the negative.
(3) The declaration sought in paragraph 4 is hereby granted.
(4) Costs of and incidental to this action be paid by the Defendant.

The hearing date was fixed for 26th January 2001 at 9:30 before me. In open Court, the Plaintiffs by their Solicitor, Mr. Suri, filed an Amended Notice of Motion seeking the following Orders –

(1) That continuation of trial in this action be relisted not later than twenty one days from the date of this order.
(2) That the Defendant provide to the Plaintiffs’ Solicitor within seven days a final list of the witnesses it intends to call.
(3) That unless the Defendant calls its witnesses and prosecutes its case on the day listed for trial it shall be deemed that the trial in this action has closed and the Plaintiffs shall be entitled to apply on motion for judgment.
(4) Costs of and incidental to this action be paid by the Defendant on Solicitor-Client basis.

Counsel for the Defendant, Mr. Apaniai, objected to this course of conduct and opposed the Amended Notice of Motion. First, he said that the Amended Notice of Motion violated Order 55, rule 5 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules) which, he said, required at least two clear days between the service of a notice of motion and the date of hearing of the motion. This requirement, he said, could only be dispensed with by special leave by the Court. In this case, no special leave was sought by the Plaintiffs. Second, he said that the content of the Amended Notice of Motion was totally different from the content of the first Notice of Motions in terms of the nature of the orders sought therein. He therefore submitted that the Amended Notice of Motion filed in to open Court should be set aside or struck out for these reasons.

The Facts

The Plaintiffs filed Originating Summons on 3rd June 1999 seeking a number of declarations and costs. The Registrar of the High Court made a number of directions on 25th June 1999. As a result of these directions, the matter came before me on 17th August 1999. I adjourned the matter and made further directions. In the meantime, the Defendant filed on 2nd September 1999 an application by Summons to struck out the Plaintiffs’ Originating Summons on the ground there being no reasonable cause of action, or alternatively, the action be struct out for being frivolous, vexatious and an abuse of process. Awich, J dealt with the matter on 7th September 1999 and delivered judgment on 18th October 1999. Awich, J dismissed the Defendant’s Summons. It appeared that there were further directions made by the Registrar of the High Court on 16th July 1999. A Certificate of Readiness signed by both Counsel was filed on 25th January 2000. The Registrar made further directions on 23rd February 2000. The matter again came before me on 30th March 2000 for trial. The Plaintiffs’ case concluded on 26th April 2000. At this stage, Counsel for the Defendant, Mr. Tegavota, asked that the case be adjourned for two weeks to allow him to collect his witnesses. The matter again came before me on 7th August 2000 by which time Mr. Apaniai of A & H Lawyers stood in for Mr. Tegavota. Mr. Suri did not attend the Court hearing because he was suffering from a stomach upset. However, he had told Mr. Apaniai to tell me that any adjournment would be for 14 days only. Mr. Apaniai, on the other hand, requested that the adjournment be in general terms because he was not sure when Mr. Tegavota would be available. I therefore adjourned the case generally.

The Defendant’s Objection to the Plaintiffs Amended Notice of Motion

Order 55, rule 5 of the High Court Rules states "Unless the Court give special leave to the contrary, there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion."

The requirement in this rule is simple. A Motion must be served upon the other party two clear days in the minimum before the Motion can be heard by the Court. If the Motion is to be served immediately upon the other party and heard, the party filing the motion must first of all apply for special leave from the Court to do so. The way to do this is to apply by Summons for abridgement of time under Order 64, rule 5 of the High Court Rules supported by affidavit. It could be obtained ex parte. In this case, such application for abridgement of time could have been conveniently included in the Amended Notice of Motion as one of the Orders sought in order to save time. But that was not done in this case. Counsel for the Plaintiffs, Mr. Suri simply handed up the Amended Notice of Motion and proceeded to open his case. A copy of the Amended Notice of Motion was simply handed to Counsel for the Defendant, Mr. Apaniai, across the bar table. Counsel for the Defendant, Mr. Apaniai, therefore objected to the Amended Notice of Motion on the basis of Order 55, rule 5 above and pressed for it to be set aside or struck out.

The Plaintiffs’ Position

The whole purpose of the Plaintiffs’ first Notice of Motion and the Amended Notice of Motion is to force the Defendant to conduct its case in Court with some reasonable speed in order to conclude the trial adjourned on 26th April 2000. The Plaintiffs were concerned with what appeared to them to be an inordinate delay by the Defendant to prosecute its case and conclude the adjourned trial. Although the Notice of Change of Advocate was filed on 23rd January 2001, A & H Lawyers had been the solicitors for the Defendant since 18th August 2000. It is a period of almost 6 months up to date. The Defendant persisted in delaying the trial despite a number of letters written by the Plaintiffs’ Solicitor, Mr. Suri, requesting the Defendant, its solicitors and the Registrar of the High Court that the trial be relisted. As a measure of last resort, the Plaintiffs’ Solicitor, Mr. Suri, filed the Notice of Motion on 13th December 2000 followed by the Amended Notice of Motion filed on 26th January 2001 seeking orders from the Court.

The Decision

The fact is that Mr. Tegavota was the previous solicitor and Counsel for the Defendant. When the case came before me on 7th August 2000, Mr. Tegavota wrote to the Registrar of the High Court from Gizo by letter dated 4th August 2000 saying he would not attend Court because he would not come to Honiara for fear being harassed by militants in Honiara. At this hearing, Mr. Apaniai, of A & H Lawyers appeared for the Defendant and sought an adjournment on behalf of Mr. Tegavota. The Plaintiffs’ Solicitor, Mr. Suri, as I have said, did not attend the hearing but did not oppose the adjournment. However, he wanted the adjournment to be for 14 days only. He had telephoned Mr. Apaniai to inform me of his instructions to Mr. Apaniai. He was not able to attend because he had stomach ache. Mr. Apaniai, on the other hand, asked me to grant an adjournment generally because he did not know when Mr. Tegavota would come to Honiara from Gizo. Mr. Apaniai also indicated that A & H Lawyers might take over the conduct of the Defendant’s case. I therefore adjourned generally as requested by Mr. Apaniai. The fact is that the Defendant was not ready to proceed with its case. This fact was set out clearly in Mr. Apaniai’s letter of 4th September 2000, addressed to the Plaintiffs’ Solicitor, Mr. Suri, copied to the Registrar of the High Court. The essence of that letter was that Mr. Tegavota had not taken written statements from the persons to be called as defence witnesses who were all residents of Ysabel Province. However, Mr. Apaniai also pointed out that the Defendant was not doing any logging in LR673 and part of LR674 which were currently under dispute and the Plaintiffs would not suffer any prejudice caused by the delay which was unavoidable in this case. Again, in his affidavit filed on 24th January 2001, Mr. Apaniai reiterated his position and said he had no objection to relisting of the trial provided it was scheduled for the end of January or early February, 2001. His readiness seemed to depend largely upon the arrival of Mr. Teo Siak Kui arriving back from Malaysia. The Registrar is but helpless to fix a date for hearing in view of the fact that the Defendant is not yet quite ready to proceed. The Plaintiffs cannot force the Defendant to come to Court with nothing to present to Court. The Defendant’s witnesses or at least some of them are not available. By Notice of Cross-Examination filed on 24th March 2000 by the Plaintiffs Solicitor, Mr. Suri, 7 witnesses are to be called by the Defendant for cross-examination. They are Sir Dudley Tuti, Edward Vunagi, Gan Seong Kah, Teoh Siak Kui, Henry Wood, Edward Andresen and Nelson Bako. There is no mention of Nathaniel Supa. According to Mr. Apanai’s affidavit filed on 24th January 2001, the attendance of Edmond Anresen can be excluded. However, the Plaintiffs may insist upon the attendance of Mr. Andresen for cross-examination purposes. It is possible that the Defendant may choose to produce witnesses who are able to attend the trial and then adjourn the hearing for the attendance of the other witnesses who are yet to be called at the next hearing date. It is a matter to be decided by the Defendant. It is rather odd that the Plaintiffs saw it fit to dictate the conduct of the Defendant’s case unless the Plaintiffs act under Order 33, rule 21 or Order 64, rule 9 of the High Court Rules. The facts of this case do not seem to fit in the circumstances that normally call for the application of these Orders. The conduct of a case is normally the matter for the parties to control and dictate between themselves although nowadays the Courts in some jurisdictions have tended to intervene if one of the parties is seen to be deliberately slowing down the process of dispensing justice at the expense of the other party.

The problem here is that the Plaintiffs have not indicated under which practice rule under the High Court Rules they have come to Court for the orders sought. Calling upon the inherent jurisdiction of the Court for help can be a problem because the Court also has inherent jurisdiction to strike out proceedings which abuse its process. In this case, whilst the delay of the trial is already 9 months since the adjournment on 26th April 2000, the Defendant has not forgotten about the case. Counsel for the Defendant, Mr. Apaniai, has said enough on this point and I need not repeat the facts. In my view, the Court cannot force the Defendant to relist the recommencement of the trial when it is not sure the Defendant’s case is ready to commence on there is evidence to show that the Defendant is deliberately sitting on the case thus causing unnecessary inconvenience to the Plaintiffs. To do so will only result in further adjournments. It would result in going around in circle involving unnecessary costs. This is however not say that delay generally is encouraged by the Court. What I mean is that on the facts of this case, it would not be wise to force the Defendant to relist the trial when it is not ready to proceed. There is no evidence of deliberate delay for the sake of delay by the Defendant. The Plaintiffs have acted a little too early in this case in the rush to complete the trial. The Plaintiffs’ best bet in this sort of case is to ask for costs at the end of the trial. In this rush, they forgot to obtain special leave under Order 55, rule 5 of the High Court Rules. I would set aside the Amended Notice of Motion on this ground. I would also order that the Amended Notice of Motion he struck out for abuse of the Court process. Costs be in the cause. I order accordingly.

F. O. Kabui
Judge