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Suva'ahu v Omex Ltd [2001] SBHC 36; HC-CC 173 of 2000 (19 June 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No:173 of 2000

FELIX ANO SUVA’AHU,

GEORGE KIRIAU NOA

v

OMEX LIMITED,

COMMISSIONER OF FOREST RESOURCES

AND OTHERS

ass="Mso="MsoNormal" style="line-height: 13.2pt; margin-top: 1; margin-bottom: 1"> Hi Court of Solomon Islands

Before: F. O. Kabui, J

Civil Case No: 173 of 2000

Hearing: 18th June 2001

Ruling: 19th June 2001

J. Apaniai for the Plaintiff

J. Sullivan for the 1st Defendant

S. Manetoali for the 2nd Defendant 3rd Defendant not present

RULING

The Plaintiff has asked the Court to make the following Orders-

1. &nbs; &nbbsp; &nbspt that the order of thof this Court dated 5th October 2000 dismissing the Plaintiffs action be set aside and that the Plaintiffs action including the Consent Orders dated 2nd June 2000 be reinstated.

2. That leave be granted to amend the Writ of Summons Stat of Claim and the orders in the action as follows:-

<

3pt">[a] by deleting the word “Suvaahu” wherever it appears therein and replacing it with the word “Siwa’ahu”, and,

<

[b] by deleting George Noa Kiriau as Second Plaintiff in the action.

4pt">4.  p;&nssp; Such further ther or other orders as the Court deems fit.

5. sp; That coets bthin then ausecause.

p class=lass="MsoNormal" style="line-height: 13.8pt; margin-top: 1; margin-bottom: 1"> There is an error in the numbering of the above orders in that 4 should be 3 and 5 should be 4. These orders are contained in a summons filed by the Plaintiff on 14th May 2001.

ass="Mso="MsoNormal" style="line-height: 13.8pt; margin-top: 1; margin-bottom: 1"> At hearing o the Summons, Counsel for the 1st Defendant, Mr. Sullivan, submitted that the Court had no jurisdiction to hear the Plaintiff’s Summons and to determine it on the terms therein.

The reason being that the Order of 5th Octobe0 was a dismissal of the Plaintiff’s action filed on 31st May 2000. That is to say, the Court would be functus officio in respect of any further dealing with the Plaintiffs action (see S v Recorder of Manchester [1971] A.C. 481). The Plaintiff’s action, he said, ended at the striking out of the Plaintiffs Statement of Claim and the dismissal of the Plaintiff’s action against all Defendants. Mr. Sullivan pointed out that the proper step to take to challenge the Court Order of 5th October2000 would have been to appeal the Order which in this case, he said, such a step would clearly be out of time. Alternatively, he said, the Plaintiff could institute fresh action for damages if he d to be the rightful owner of the Tangiliu Land. To s To set the Order aside under Order 38, rule 7 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules), he said, was not possible because there was no trial in this case but rather the Order was made upon failure to fulfil conditions stipulated in the Court Order dated 2nd June 2000. Counsel for the plaintiff, Mr. Apaniai, however argued that as a matter of fact the Court Order of 5th October 2000 was obtained by the 1st Defendant in the absence of the Plaintiff and therefore the Plaintiff would be entitled to be heard under Order 38, rule 7 of the High Court Rules. Mr. Apaniai further pointed out that the failure by the Plaintiff to comply with paragraph 8 of the Court Order of 2nd June 2000 had been due to the Korutalaumeimei Chief’s Panel’s decision in the High Court recently. The reasons, he said, for the delay in compliance with paragraph 8 of the Order 2nd June 2000 were set out in the Plaintiffs affidavit filed on 14th May 2001.

Brief Facts

In this case, Plaintiff represente Tangiliu tribe whilst George Kiriau Noa, the 2nd Plaintiff represented the Walaihenue tribe. By a Consent Order dated 2nd June 2000, the Plaintiffs undertook to expeditiously prosecute their respective actions in the Malaita Local Court for the determination of ownership in respect of Tangiliu land and Walaihenue land respectively. In default of doing this by the Plaintiffs or any one of them, the Defendant was at liberty to apply to the Court to strike out the Statement of Claim. By letter dated 14th July 2000, the 2nd Plaintiff withdrew from this case as a party. Following an application by Summons filed on 19th August 2000, the 1st Defendant was able to obtain a Court Order dated 5th October 2000 striking out the Plaintiff’s Statement of Claim and dismissing the Plaintiff’s action. The Plaintiff was not present at the hearing of the 1st Defendant’s Summons though his Solicitor’s Office had been served with a copy of the summons on 25th August 2000.

Was the Orhe Order final or interlocutory

There is a difference between a dt judgment (interlocutory) and a final judgment or order. Ier. In the case of a default judgment under Orders 13, rule 8, 29, rule 12 and 38, rule 7 of the High Court Rules, the defaulting party is entitled to apply to the Court for the default judgment or order to be set aside within the terms of the rules under those Orders. In the case of a final judgment or order, the losing party can only appeal the final judgment or order as the case may be . The test was put by Lord Alverstone C.J in Bozson v Altrinchan Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547 at 548 thus,

ass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> It seems to me that that the real test for determining this question to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not it is then in my opinion, an, interlocutory order.”

In that case, the trial judge found that there was noing contract between the parties and dismissed the ache action. The Court of Appeal held that order was final and therefore the appeal was brought within the prescribed time.

The test was considered and accepted by the Privy Council in Haron Bin Mohammed Zaid v Central Securities (Holdings) BHD [1982] 3 W L R 134. The earlier test as stated in Salaman v Warner and Others [1891] UKLawRpKQB 85; [1891] 1 Q.B. 734 was not preferred by the Privy Council. The earlier test is that a final order is one that finally determines the matter in litigation no matter for whichever side the decision is given provided it does stand and achieves that finality. The Privy Council did not however say why it preferred the test stated in the Bozson case cited above. In Hall v Nominal Defendant [1966] HCA 36; (1966) 117 C L R 423, Windeyer, J. at page 443 gave his reason for the non-acceptance of the earlier test in Salaman v Warner cited above in these terms:

But it is not a view that hast has had general acceptance:… And it cannot be regarded as of general application because an order in favour of one party to an application may finally determine the dispute between them whereas an order to the opposite effect would not. For example, an order setting aside a jury’s verdict and ordering a new trial is clearly interlocutory. But an order refusing a new trial is final”…

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> In that case, the High Court of Australia also adopted the test stated in the Bozson case cited above. In this case, the application of the test must necessarily involve the examination of the Court Order of 5th October 2000. The crucial part of the Order is paragraph 3. Paragraph 3 simply struck out the Plaintiff’s Statement of Claim and that the Plaintiff’s action be dismissed against all Defendants. The paragraph speaks for itself. The rights of the Plaintiff, if any, were conditional upon his fulfilment of his undertaking in paragraph 8 of the Court Order of 2nd June 2000. The Order was a Consent Order duly signed by the Plaintiff’s Solicitor. The Plaintiff having failed to fulfil his undertaking in paragraph 8 above, the 1st Defendant was entitled to apply to the Court to strike out the Plaintiff’s Statement of Claim and to dismiss the Plaintiff’s action. The Plaintiff had agreed in paragraph 8 of the Consent Order that his rights be denied if he failed to fulfil his undertaking in paragraph 8 above. In my view, the Order of 5th October 2000 was final because the Plaintiff had agreed in advance to the real possibility that such an order could be made against him and his rights, if any, be thereby denied and the rights of the Defendants be thereby vindicated thus bringing to an end the dispute between them in the High Court. The Plaintiff cannot now, as it were, reopen the dispute by using the default procedure under the rules to set aside the Court Order on 5th October 2000 and reinstate the Consent Order of 2nd June 2000. If the plaintiff did not accept the order because it was made in his absence, he could have appealed it. This, he has not done. I can well understand the Plaintiff’s position in that if he had attended the hearing of the 1st Defendant’s Summons filed on 19th September 2000, he would have told the Court of his position regarding his undertaking in paragraph 8 of the Consent Order on 2nd June 2000. By being not aware of the hearing date for reasons beyond his control resulted in his absence at the hearing at which the Order of 5th October 2000 was made terminating what he saw as his rights. However, as I have said, the proper way of going about undoing the Order would have been by appeal which is now clearly out of time.

There is another reason. The Plaintiff’s claim of ownershiTangiliu land was merely anly an assertion of rights until ownership was decided by the relevant Panel of Chiefs and the Local Court as the case may be. The Korutalaumeimei Chief’s Panel decision made on 20th June 2000 against the Plaintiff was quashed by the High Court on 27th April 2001, in Civil Case No: 1 of 2001. The Plaintiff’s claim of ownership in custom over Tangiliu land is, as at present, yet to be determined. The Plaintiff cannot claim the right of ownership to Tangiliu land in the High Court as the High Court does not have jurisdiction to determine ownership of Custom Land (See Gandly Simbe v East Choiseul Area Council (Civil Appeal No: 8 of 1997), as applied in John Osiramo v Mezach Aeounia (Civil Case No. 201 of 2000), Joe Rodi Totorea, Roe Roe & George Abukeni v Tairata Integrated Forest Development Company Limited and Bulecan Integrated Wood International Pty Limited Civil Case No: 204 of 2000 and Nathan Kere v Paul Karasi (Civil Case No: 258 of 2000). In other words, the Plaintiff had no case to prosecute in the High Court as he was not the owner of Tangiliu Land on the date he filed his Writ of Summons and Statement of Claim in the High Court. Even assuming that I do have jurisdiction, the Plaintiff’s application to set aside the Order is now out of time under Order 38, rule 7 of the High Court Rules as read with Order 64, rule 5 of the same Rules. Clearly, for the Plaintiff, the door is closed on all sides. The Plaintiff’s application must be dismissed. The application is accordingly dismissed with costs.

F.O. Kabui

class="MsoNormal" style="margin-top: 1; margin-bottom: 1" a 1" align="center"> Judge


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