RULING
(Kabui, J):
By Summons filed on 11th June 2001, the Defe Defendant seeks the following
orders-
1. The action be dismissed
pursuant to Order 32 Rule 8 of the High Court (Civil Procedure) Rules, 1964,
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2. Further, and/or, in the
alternative, the action be struck out for want of prosecution.
3. Such further or other
order the court may seem fit.
4. Costs of an incidental to
this application be paid by the Plaintiffs.
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Brief Factsn>
By Writ of Summons filed on
17th April 2000, together with a Statement of Claim, the Plaintiffs claim
against the Defendant
the sum of USD 16,522.44, damages for negligence and
costs. The Defendant, through its Solicitors, entered a Memorandum of
Appearance filed on 26/4/2000. The Defendant filed its Defence on 15th May
2000. The Defence was dully served upon the
Plaintiffs on 16th May 2000. The
Defendant's Solicitors then wrote a letter dated 4th July 2000 to the
Solicitor for
the Plaintiffs, inviting him to sign a draft consent order for
directions within 7 days in default of which the Defendant's
Solicitors
would apply to the Court for an Order for directions and costs without
further notice. The draft consent order
was enclosed with the covering
letter of 4th July 2000. The Plaintiffs have not responded to the
Defendant's letter of
4th July 2000 nor to the Defence filed on 16th May
2000.
The Relief Sought<
...“In any such action to
which Rule 1 of this Order appliesthe plaintiff does not with within
fourteen days from the
time when the pleadings shall be deemed to be closed
take out a summons for directions under this Order, the defendant shall
be
at liberty to apply for an Order to dismiss the action and upon application
the Court may either dismiss the action
on such terms as may be just, or may
deal with such application in all respects as if it were a summons for
directions
under this Order”...
Under this rule, the can
do two things. First, the Court can dismiss the Plaintiffs action on terms
as justice requires.
Second, the Court may treat the Defendant's application
as though it were a Summons for directions under this Order. In this
case,
the Solicitor for the Plaintiffs recalled that he had signed all the copies
of the draft consent orders and returned
them to the Defendant's Solicitors.
But the Defendant's Solicitors did not receive the signed copies. I think
the fact
is that the Solicitor for the Plaintiffs had forgotten to sign the
copies of the draft consent order. Strangely, the Defendant's
Solicitors did
not apply for an order for directions as said in their letter of 4th July
2000 nor enquired about whether
or not the Solicitor for the Plaintiffs had
signed the draft consent order or in fact had received them in the first
place. By 4th July 2000, the Plaintiffs had been in default of Order 32,
rule 1(a) of the High Court Rules 37 days. The Defendant
sat on its rights
under Order 32, rule 8 above until the filing of its Summons on 25th June
2001, though there is no
time limit in rule 8. There is a delay of almost 12
months on the part of the Defendant in this regard. This point was raised
in
paragraph 6 of Mr Nori's affidavit referred to above. That is to say, in
terms of Order 64, rule 9 of the High Court
Rules, the Defendants should
have given one month notice of the intention to proceed. This, the Defendant
did not do.
In the alternative, the
Defendant asks for an order to strike out the Plaintiff’s actor want of
prosecutiocution under
Order 33, rule 21 of the High Court Rules. Rule 21
appears, however, to be restrictive in its application in that it applies
only to situations where the relevant party fails to comply with any order
of the Court to answer interrogatories or
order for discovery or production
or inspection of documents. In this case, no orders for directions have ever
been made
on the application of either of the parties. There is therefore no
case for orders to be made under Order 33, rule 21 above
of the High Court
Rules. I am therefore left to consider the Defendant's application under
Order 32, rule 8 of the High
Court Rules. In my view, after the close of
pleadings, the Plaintiffs were obliged to apply for an order for directions
under Order 32, rule 1 (a) of the High Court Rules. They failed to do so in
this case and were therefore forced to come
to Court by Summons filed by the
Defendant. The Court does have a discretion within the spirit of rule 8 of
Order 32
of the High Court Rules above to decide either way. I have taken
into consideration the matters deposed to in Mr Nori's affidavit
and if
indeed he had signed the copies of the draft consent orders as he said he
had recalled, then matters of personal
security to his clients were not
paramount at all at that time. Matters in that draft consent order were
simply steps
to be taken by both parties to reach the trial date. Total
silence cannot move the Plaintiffs case forward. Solicitor for the
Plaintiffs has a duty to the Court and his clients for the attainment of
justice within a reasonable time. There should
have been a Summons for
directions taken out by the Plaintiffs earlier in June 2000. Should some of
the directions could
not he complied with due to personal security of the
Plaintiffs or for other good reasons, such directions could be varied
by
consent or under the rules of practice in this jurisdiction. The process of
preparation for trial cannot be simply
stalled indefinitely by the
Plaintiffs leaving the Defendant wondering why the Plaintiffs have not been
moving their
case to trial. I would order that the Plaintiffs take out a
Summons for directions within 14 days from today in default of
which the
Plaintiffs action be struck out automatically on the expiry of 14 days. I
feel that in doing this I have given
the Plaintiffs enough time to get
serious in prosecuting their action. The Defendant's application is granted
on the
term that the Plaintiff’s action be struck out for non - compliance
of the Order of this Court. The Plaintiffs will bear the
costs of this
application. I order accordingly.
F.O. Kabui
Judge
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