Avaiki Shipping Company Ltd v Attorney-General [2001] SBHC 31; HC-CC 248 of 2000 (5 June 2001)

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HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 248 of 2000

AVAIKI SHIPPING COMPANY LIMITED

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ATTORNEY-GENERAL & OTHERS

High Court of Solomon Islands

Before: F. O. Kabui, J

Civil Case No: 248 of 200

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Hearing: 29^th May 2001

Judgment: 05^th June 2001

Mrs. N. arutu for the Applicant

Mr. J. Keniapisia for the Respondent

JUDGEMENT

(Kabui, J): By Notice of Motion filed on the 6^th December 2000, and repeated on the 15^th December 2000, the Respondent seeks the following Orders-

1. An Order to strike hut tpl Applicant’s Originating Summons for non-compliance with Order 58 of the High Court (Civil Procedure) Rules, 1964.

2.  p;&nssp; Such other orer orders as the Court thinks fit

This is an unusual step to take in this case. I had already ruled in favour of the Respondents in my judgment delivered on 24^th January 2001 in the absence of the High Court (Civil Procedure) Rules 1964 the (High Court Rules).? In that judgment on 24^th January 2001, I said the Plaintiff had no case to argue under Order 58 of the High Court Rules and so I ruled against the Plaintiff. To come again to Court by Notice of Motion to strike out the Originating summons is an abuse of the Court process. What was a foot ins the Plaintiffs Summons filed on the 22^nd February seeking to set aside by default judgment delivered on 24^th January 2001. The position was rather complicated by the fact the hearing date was fixed for the hearing of the Respondent’s Notice of Motion than hearing the Plaintiff’s Summons which had been adjourned for a date to be fixed. Counsel for the Respondent then took the opportunity to argue his Notice of Motion first, followed by Counsel for the Plaintiff who likewise argued her Summons to set aside. In the any case, both actions were heard together by the Court by agreement of both counsel. As a matter of procedure and common sense, I cannot grant the order sought in the Notice of Motion filed by the Respondent. Such an order is self-defeating in that it asks the Court to do what it had already done.

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I therefore reject the Respondent’s Noti Motion accordingly. The he application is dismissed.

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The piff’s summons

By summons filed on the 22^nd Febru001, the plaintiff seeks thks the following orders-

That the udgement entered by this Court on 23^rd January 2ary 2001 against the Plaintiff be set aside.

1. Any other orders that this Court deems fit to make.

As I have said, I dealt with the Plaintiff’s Summons filed on the 31^st October 2000 on 23^rd January 2001 and gave my judgment on 24^th January 2001. I dealt with that case under Order 38, rule 6 of the High Court Rules 1964. That is to say , I proceeded to hear the Respondent in the absence of the plaintiff who for some unknown reason was not in Court at the hearing of the Summons. I gave judgment in favour of the Respondent. In terms of Order 38, rule 7 of the High Court Rules, my judgment on 24^th January 2001 can be set aside provided that the Plaintiff makes an application to set aside within 21 days after the trial . In this case, the Plaintiff filed its application to set aside on 22^nd February 2001, 31 days after the trial. Clearly, the plaintiff was out of time. No application having been made under Order 64, rule 5 of the High Court Rules for the extension of time, the Plaintiff is now time-barred. There is no choice but to dismiss the Plaintiff’s application. I make no order as to costs.

(F. O Kabui)/p>

Judge