Doko v Gella Area Assembly [2001] SBHC 2; HC-CC 166 of 2000 (23 January 2001)

HIGH COURT OF SOLOMON ISLANDS<

Civil Case No. 166 of 2000

LUKE TACO

AND JOHN KOETE

v

GELLA AREA ASSEMBLY,

TROPICAL RESOURCES DEV. COMPANY,

DALGRO (SI) LTD,

ATTORNEY GENERAL

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> High Court of Solomon Islands

Before: F. O. Kabui, J

Civil Case No. 166 of 2000

Hearing: 22^nd

Judgment: 23^rd January 2001

Mrs. M. Samuel for the Applicants

p class="MsoNormal" style="margin-top: 1; margin-bottom: 1"m: 1"> T. Kama for the 2^nd and 3^rd Respondents

Jeoffrey Deve for the 4'^h Respondent

JUDGEMENT

(Kabui, J):

lass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Facts Deposed to by Mrs Samuel in Support of the Application

As the Solicitor for the cants, she filed in the High Court Registry the Notice of Appointment to hear the Orie Originating Summons on 30^th October 2000. She also wrote on 30^th November 2000, a circular letter informing the Registrar of the High Court and all the legal practitioners in Honiara of the sad fact that their office had been burned down on Friday 24^th November 2000. They had lost everything in their office as a result of this sad event. She said they were closing down business until the New Year 2001. She also said that all the cases listed for hearing in the High Court would have to be adjourned for 2001, as they would have to reconstruct their office files. She also told her clients, the Applicants the fact that her office had burnt down and that the case was to be heard on 13^th December 2000. She said she made a mistake so that when her clients, the Applicants, called into the High Court Registry on 13^th December 2000, they discovered that their case had already been dismissed by the High Court on 4^th December 2000 about more than a week earlier. She thought that the Court and Mr. Kama were aware of her letter of 30^th November 2000 and would act accordingly.

The Procedure

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p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Order 38, rule 6 of the High Court Rulates

“If, when a trial is called on, the defendant appears, and the Plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but if he has a counterclaim, then he may prove such counterclaim so far as the burden of proof lies upon him. (See Form 10 Appendix F)”.

As I have said, the Applicants’ action was dismissed under Order 38, rule 6 above.ver, Order 38, rule 7 states

“Any verdict or judgment obtained where one party doe appear at the trial may beay be set aside by the Court upon such terms as may seem fit, upon an application made within twenty - one days after the trial.”

The Applicants’ Notice of Motion was obviously filed under Order 38, rule 7 above well within 21 days after mter my Order for dismissal was perfected on 12^th December 2000.

The Law

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Clearly, within the meaning of rule 7 above, the setting aside ofrdict or judgment under thir this procedure is a matter for the discretion of the Court. In Grimshaw v Dunbar [1953] 3 WLR 332, the Plaintiff being the landlord sued the Defendant for recovery of possession of certain premises on the ground that the Defendant was in arrears with the rent. Three days before the hearing of the Plaintiff’s Summons, the Defendant paid into Court the full rent. A Court official then told the Defendant that it was not necessary for him to attend the Court hearing because the Plaintiff's action would be dismissed by reason of the payment of rent into Court. On the hearing of the Summons in the absence of the Plaintiff, the Court made an order for possession in favour of the Plaintiff. Having received a copy of the order, the Defendant then filed a Motion to have that order set aside. The Motion was refused and the Defendant appealed to the Court of Appeal. At pages 337 - 338, JENKINS L. J. made these remarks,

“... I will mention some of the main considerations which I conceive should be regarded in the exercise of the judge's discretion. First, although there is no hard and fast rule about it, as I think Lord Atkin pointed out in Evans v Bartlam⁸, it must be material for the judge to know why it was that the defendant failed to appear on the proper day when the case came into the list and was heard. How does this case stand as regards that matter? There is the undisputed statement of the tenant, which he has put on oath before us, to the effect that his absence was due to the wrong advice which he received from one of officials of the court. One starts with that. The difficulty in which he finds himself is due to the fact that an official of the court unwittingly misled him. Secondly, has there been any undue delay by the absent party in launching his proceedings for a new trial? In answering that question I venture to think that delay in itself would not be important, but delay prejudicing the other party, or delay which would enable rights of third parties to intervene, would be most material. How does the matter stand here as regards delay? The tenant did not move in the matter until, I think, September 23 that is some six weeks or so after he received the copy of the order. But in estimating the importance of that lapse of some six weeks it is right, I think, to bear in mind that the original order for possession did not direct possession to be given up until November 3, 1952, so at the date when the tenant launched his application there was plenty of time left for a new trial to be had without embarrassing the landlord (assuming him to be successful on the new trial) by having the tenant in his house for a longer period than he would otherwise have been and, therefore, perhaps impeding him in some future disposition or letting of the house that he might want to make.

Therefore, in this case I shout say that there had been aeen any undue delay; and that conclusion is reinforced by the circumstance that when this application did come before the judge, and he refused it, he granted the tenant an extension of time for giving up possession to January 1, 1953. So the judge cannot have thought that there had been, up to the time the matter came before him on October 28, any delay which would prejudice the landlord. The judge could on the same day have granted a new trial with every prospect that the new trial would have taken place before January 1, 1953.

Thirdly, will the landlord in this case be prejudiced by an order for a new trial? There may be cases where the order sought to be set aside has been acted on and circumstances have arisen (generally linked up, I should say, with some undue delay or other dereliction on the part of the defendant) which would make it unfair or inequitable that the case should be reopened. I see nothing in the facts of the present case which could be said to make an order for a new trial prejudicial to the landlord in any respect which could not be adequately compensated by a suitable award of costs.”

⁸(1937) AC 473

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Three guiding principles can be extracted from the remarks of JENKINS L.J.e, though they are not exhaustive to say the least. First, the Court should find out why the other party did not attend the Court hearing at the appointed date and time. Second, was the other party very late in coming to Court in seeking the setting aside of the order made? Third, was there any good reason against the reopening of the case in terms of costs being the alternative remedy?

The Evidence

Clearly, the Applicants’ Solicitor, Mrs. Samuel, had writo the Registrar of the High Court and to all legal pral practitioners in Honiara telling them of the fact that their office had been destroyed by fire on Friday 24^th November 2000, and that everything in that office had been destroyed including case files. She said they had to close their office for business until the New Year. She specifically mentioned in paragraph 3 of her letter that all cases handled by them would have to be adjourned for 2001 to give them time to reconstruct their case files. She had also told her clients, the Applicants, that their case was to be heard on 13^th December 2000 apparently being a mistake on her part. When her clients, the Applicants, called at the High Court Registry on 13^th December 2000, they discovered that their case had been dismissed on 4^th December 2000. Had Mrs. Samuel told them of the hearing on 4^th December 2000, they obviously would have appeared in persons and asked for an adjournment. Solicitor for the 2^nd and 3^rd Respondents, Mr. Kama, admits by affidavit evidence that he was only aware of the letter written by Mrs. Samuel when he arrived back in his office from Court on 4^th December 2000. By that time, it was too late to do anything about Mrs. Samuel’s general request for adjournment of their cases in the High Court. I find therefore that Mrs. Samuel and her clients, the Applicants, had a legitimate reason for being absent in Court on 4th December 2000. It is not disputed that the Applicants filed their Notice of Motion on 14^th December 2000, two days after the order was perfected on 12^th December 2000. I find that the Applicants were within time and acted within 21 days. There is no evidence of delay. There is no evidence that the 2^nd and 3^rd Respondents would be prejudiced if the order I made were to be set aside thus allowing for a new trial to take place. The effect of my order upon the 2nd and 3rd Respondents would have been to place them in a position free of any legal threat from the Applicants. If there is any form of prejudice at all, it would be the cost of defending the case against the Applicants at the new trial date. That in my view is normal cost of litigation that would not necessarily prevent the Applicants from setting aside the order I made and prosecuting their claim in the normal way.

The 2^nd and 3^rd Respondents’ Argument

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class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Whilst the Appts’ case has merits, Counsel for the 2^nd and 3^rd Respondents, Mts, Mr. Kama, argued that the Originating Summons filed by the Applicants on 26^th May 2000 did not disclose a cause of action. He argued that the Applicants were wrong in instituting their action by way of an Originating Summons because essentially, the Applicants claim was for ownership of land in custom which was a matter for the Local Court to decide (See Gandly Simbe v East Choiseul Area Council, Eagon Resources Development Company Limited, Steven Taki and Peter Madada) (Civil Appeal No. 8 of 1997). The appropriate method of claim, he argued, was by way of Writ of Summons and a Statement of Claim. But in this case, he argued, there was no evidence of ownership of land by the Applicants. He pointed out that according to the affidavit evidence filed by Mr. Maru and others on behalf of the 2^nd and 3^rd Respondents, the lands being logged were outside of the lands claimed to be owned by the Applicants. He said even the claim of ownership of a reef claimed by the Applicants lacked evidence of ownership. All in all, he argued that the Applicants’ case lacked substance and the Court should refuse to determine the questions posed by the Originating Summons under Order 58, rule 5 of the High Court Rules. This argument put forward by the Applicants’ Counsel, Mr. Kama, brought into play another point of law of equal importance in this sort of application. At page 338 JENKINS L.J. again made these remarks:

“Then there is a more debatable point, as I regard it, as to how far the judge should consider the prospects of success of the party applying for a new trial. No doubt the judge is entitled to satisfy himself that the party applying has a bona fide intention of defending the action, and that there is some possibility of his doing so with success. For example, I apprehend that if an admitted and self - confessed trespasser allowed Judgment for possession to go in default in his absence, the judge would be entitled, on an application for a new trial, to refuse on the ground that he was palpably a trespasser and could not, whatever evidence he gave, possibly justify his presence in the house. But, short of cases of that kind, I think that a new trial should seldom,if ever, be refused merely on the ground that the applicant's case appears to be a weak one, and it is, moreover, difficult to see how the tenant's case here could on the face of it be classed as obviously weak in view of the payment into court. Be that as it may, a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross - examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case …”

Clearly, a weak case would b no ground for refusing an application to set aside a verdict or judgment on that ghat ground. But there can be cases for proper refusal to set aside.

The Evidence on this Point

The Belaga House of Chiefs’ meeting on 18^{th Forest Resources and Timber Utilization Act (Cap. 40). Although paragraph 5 of Mr. Koete’s affidavit filed on 26th May 2000 mentioned Totola land, Aolona land, Valeona land Vatupota land and Maneisorisaro land, nowhere does he say that he or his}

tribe owns all or any of these lands. He however, in paragraph 6 of his affidavit said he and his tribe owned Saumaleiade land and Koukomu reef. There is no evidence to show that Koete and his tribe own this land and reef. In fact, affidavit evidence by Messrs Maru, and Vureseka shows that the road access stopped short of entering Koete’s land. Mr. Koete was in fact not present on the third day of the Belaga House of Chiefs’ hearing to press his claim of ownership to Saumaleiade land and Koukomu reef. I must say that the content of Mr. Koete’s affidavit is very general in nature and scanty in its content. It does not hear out sufficient facts to support the determination of the questions posed in the Originating Summons filed by the Applicants on 26^th May 2000. It says nothing about Forms I and II and the manner in which these Forms were filled out under the provisions of the Forest Resources and Timber Utilization Act (Cap. 40). There is no evidence to demonstrate that the Applicants do have rights to be declared under Order 58, rule 1 of the High Court Rules. The connection between the Applicants and Forms I and II under the provisions of Forest Resources and Timber Utilization Act in terms of an identifiable area of customary land is lacking in this case. The Applicants have got no case to bring to Court under Order 58 of the High Court Rules. For these reasons, I have no choice but to refuse this application to set aside with costs. The Applicants’ case is clearly beyond a weak one.

F. O. Kabui

Judge