Lae v Valahoana Company Intergrated Development [2001] SBHC 21; HC-CC 269 of 1999 (18 April 2001)

ass="MsoNormal" aal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 269 of 1999

LAWRENCE LAE AND WILLIE KAREJAMA

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v

VALAHOANA COMPANY INTERGRATED DEVELOPMENT

AND OTHERS.

High Court of Solomon Islands

Before: F.O. Kabui, J

Civil Case No. 269 of 1999

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Hearing: 11^th April, 2span>

Judgment: 18^th April, 2001

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Mr. F Waleanisia for the Plaintiffs

Mr. P Tegavota for the Defendants

JUDGMENT

(Kabui, J): The Plaintiffs byfs by Summons filed on 4^th December 2000 has asked the Court to ma e the following orders –

ass="MsoNoMsoNormal" style="text-indent: .55pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> 1. That the summons dated 31^st August 1999 filed on behalf of the 1^st to the 6^thefendant intending to set aside the ex parte orders dated 20^th August 1999 in this case be struck out or dismissed.

2. That ex - parte orders made on the 20^th August 1999 be made permanermanent.

clas class="MsoNormal" style="text-indent: .55pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> 3. That the 1^st to 6^th Defendants be requested to comply with the order within 14 days from the date of grant of this order, the failure of which shall be contempt of these order.

4. The case be in the mean time referred to the Marovo Couo Counsel of Chiefs for he determination of the issue of customary ownership.

5. Costs

6. Any other orders that the Court deems necessary.

The Facts

Taintiff came to Court by way of a Writ of Summons filed on 17^th August 199t 1999. A Statement of Claim was filed on that same date. An Amended Statement of Claim was later filed on 1^st October 1999. The Writ of Summons and the Amended Statement of Claim were duly served. Solicitor for the 1^st - 5^th Defendants, Mr. Tegav ta, entered a Memorandum of Appearance duly filed on 31^st August 1999. By Notice of Motion filed on 18^th August 1999, the Plaintiffs obtained an ex parte order against the Defendants on 20^th August 1999. I made that order directing that the proceeds of all logs felled on Sarangona Land be paid into Court until further order together with a list of the species of logs felled and their f.o.b. value. By Summons filed on 31^st August 1999, the Defendants sought to set aside the order I made on 20^th August 1999. The Summons was listed for hearing on 1^st October 1999 at 9:30 am. The hearing was adjourned but I directed that the Plaintiff serve upon the Defendants copies of his affidavits within 7 days. I also directed that the Defendants file their replies within 7 days to which the Plaintiff was given 7 days to reply. The Defendant’s Summons to set aside was listed for hearing on 26^th January 2000 but was not proceeded with by the Defendants. I made my ruling on the application by the Plaintiffs on 27^th January 2000. I made the second ruling upon the application by the Plaintiffs on 6^th April 2000. In the last of that ruling I said the other pending applications by both parties should be listed for hearing at a date to be fixed by the Registrar of the High Court. By Notice of Motion filed on 26th April 2000, the Plaintiff sought an order that the Camp Manager of Gepae Camp and Company Directors be committed to prison for contempt of the Court Order I made on 20^th August 1999 leave having been granted by me on 2^nd March 2000. The hearing of that Motion was adjourned on 17^th May 2000 due to non - service upon the Defendants. Nothing more happened until the Plaintiff's present Summons filed on 12^th April 2000.

The Plaf’s Submission

In support of the application, Mr. Karejama deposed to certain facts in his affidavit filed on 14^th February 2001. Paragraphs 6 - 12 are in these terms –

6. about the 17^th of May 2000 the case was awas again listed. Once again the matter was adjourned. The basic reason being that there was no proof that the defendants were served. The hearing was intended to be for contempt of court orders. The court however indicated that we get in touch with the defendants solicitors to find out an appropriate time to have the matter listed.

7. On or about the 30^th of of May 2000 my solicitor wrote a letter to the defendant’s solicitors expressing our interest to fixing a date suitable to all the parties. No reply was received for that letter. Annexed and exhibited hereto marked “W.K.1” is a copy of the letter sent by my solicitor.

8. While waiting for the defendants to reply the letter the events of the 5^th June 2000 took place thus forcing me to leave Honiara.

9. On or about October 2000 I finally came up to Honiara and began pursuing the matter again. By then my Solicitor had already left the Public Solicitors Office. On approaching the Public Solicitors Office and the other Solicitors of that Office they all refused to continue my case for various reasons. As I was desperate to complete my case I approached Mr. F. Waleanisia who was by then was already working with the Attorney Generals Chamber. I expressed the problem I was faced with. After consulting his superiors he agreed to complete the interlocutory part of my case.

10. By letter dated 28^th November 200r 2000 my solicitor once again wrote to the defendants Solicitors informing him of my intention to file a summons against the defendants to have their summons to set aside the orders of 20.8.99 struck out or dismissed. The letter was also copied to the defendants and I personally posted the letters to the defendants. Again there was no reply. Annexed and exhibited hereto marked “WK2” is a copy of the letter.

11. On or about the 4^th of December 2000 2000 we filed a Summons seeking various orders including orders to have the summons filed by the defendants to be set aside referred to in the preceding paragraph struck out on the grounds of unreasonable delay. For reasons already known to this court the matter did not proceed on 19.01.2001. The matter was then adjourned to the 28.02.2001.

12. To my knowledge the defendants have not assisted or made made any attempt to pursue the summons filed by then on the 31.8.99. I therefore pray that the court will grant the reliefs sought.

This is theence of the Plaintiff in support of his application.

Mr. Tegavota’s Submission

Mr. Tegavota for his part h part filed no affidavit evidence nor gave any sworn evidence from the witnesss - ss - box. His facts came from the bar table. Such were not sworn evidence. However, most of the things he said from the bar table were facts already contained in the Court Files regarding the sequence of events affecting the progress of the Plaintiff’s case. As regards the event of 5^th June 2000 in Honiara, I would take judicial of it. The staging of the more or less a coup by members of the Malaita Eagles Force (MEF) and elements of the Rapid Response Unit of the Police Force on 5^th June 2000 was a notorious fact known to all in Solomon Islands. This event forced many persons from other Provinces including persons from Guadalcanal to leave Honiara for the Western Province and elsewhere. Mr. Tegovata was one of them. He went to Gizo and remained for some months for fear of being harmed in Honiara. Both letters referred to in Mr. Karejama’s affidavit above as Exhibits “WK1” and “WK2” were addressed to Mr. Tegoavota’s address in Honiara although the letters were copied to the Directors of the 1^st Defendants whose address is in Honiara. In a letter hand written and dated 18^th January 2001, Mr. Tegavota told the Registrar that he was still in Western Province and would come to Honiara the following week. This was confirmed by another hand written letter by Mr. Hape, the Chairman of the 1^st Defendant sent to the Registrar informing the Registrar that Mr. Tegavota would not be coming to Honiara for the hearing scheduled for 19^th January 2001. This letter was also dated 18^th January 2001. It is obvious that Exhibits “WK1” would not have been received and seen by Mr. Tegavota in Honiara until he returned to Honiara in early 2001. Mr. Tegavota’s position would therefore seem to be equally convincing as that of the Plaintiff’s.

The Correct Procedure

In terms of Order 64, rule 9 of the High Court (Civil Procedure) Rules 1964, ty in any cause or matter ter may give notice to the other party of its, his or her intention to proceed if for a period of one year, the other party has no proceeded in the cause or matter. The duration of notice must be one month. Rule 9 of Order 64 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.”

If neither of the parties invokes Order 64, rule e Registrar of the High Court may intervene and issueissue a Summons to the parties to show cause why the action should not be struck out under Order 62, rule 1 of the High Court Rules. Rule 1 of Order 62 states –

.”

A similar procedure also exists under Order 33, rule 21 of the High Court Rules. R1 of Order 33 states –

“If any party fails to comply with any order to answer intetories, or for discovery orry 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.”

p class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Decision

Does the Plaintiff fit himself into any of the above rules of practice in this jurisdiction? I do not think he does. The least the Plaintiff can do is to invoke Order 33, rule 21 or Order 64, rule 9 of the High Court Rules. His facts do not fit into any of the rules above. Like I said in John Uluhoru and Others -v- Isabel Timber Company Limited (Civil Case No. 197/ 99), the problem here is that the Plaintiff has not indicted under which rules of practice in this jurisdiction he has come. Relying upon the inherent jurisdiction of the Court can be a double edged sword by which frivolous and vexatious applications will be struck out for abuse of the Court process. The delay here was about 8 months but for good reasons. I would dismiss the Plaintiff's application with costs.

Judge