Solomon Islands National Provident Fund Board v Solomon Islands Electricity Authority [2001] SBHC 56; HC-CC 055 of 2000 (16 August 2001)

Civil Case No. 055 of 2000

v

SOLOMON ISLANDS ELECTRICITY AUTHORITY

High Court Of Solomon Islands

Before: F. O. Kabui, J

Civil Case No: 055 of 2000

Hearing: 15^th August 2001

Ruling: 16^th August 2001

J. Apaniai for the Plaintiff

A. Nori for the Defend

F. Waleanisia for Attorney-General

RULING

(Kabui, J): By Summons filed on 26^th July 2001, the Plaintiff seeks the following Orders-

>1. &nbp; &nnbsp; That the folg poif law raised by the Defence Defendant fant filed iled hereiherein on 3^rd April 2000 be set down for hearing and disposed of before trial, that is to say:-

(a) an> Whether laintcted vires its power under the Solomon Isl Islands ands National Provident Fund Act (Cap. 109)( the Act”) in of granting to the Defendant the loans spes specified in the Amended Statement of Claim filed herein on the 17^th March 2000 “the Loans”).

(b)  p;&nbhether charging oing oing of interests and taking of ortgages by the Plaintiff as security for the Loans were ultra wires the powers of thof the Plaintiff under the Act.

lass="MsoNorsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1" align="left"> (c) Whether the Lwans mare by e by the Plaintiff in brof rust.n>

(d) & p; Whether the Lohe Lohe Loans were unlawful and 2. Such further or other orders as the Court s juspan>

3. That the Defendant pay the costs of the Plaintiff of, and

&nbssp; in connection with, this application.

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Brief Background

The Plaintiff filed a Writ of Summons on 28^th, February 2000 2000 together with a Specially Indorsed Statement of Claim against the Defendant. An Amended Statement of Claim was filed on 17^th March 2000. A further Amended Writ of Summons and statement of Claim was filed on 4^th April 2001. The Plaintiff’s claim is based upon a number of loan agreements entered into between the Plaintiff and the Defendant between August 1987 and August 1994. The Writ of Summons and the Statement of Claim were served upon the Defendant on 28^th February 2000 after which the Defendant entered appearance on 2^nd March 2000. The Defendant denied liability based upon legal grounds set out in paragraph 2 of it’s defence filed on 3^rd April 2000. The Amended Statement of Claim was served upon the Defendant’s Solicitor on 17^th March 2000. The recent Amended Writ of Summons and Statement of Claim filed on 4^th April 2001 does not seem to have been served upon the Defendant or its Solicitor. There is no evidence of service in the Court File. The order for directions was made on 9^th August 2000. The Attorney-General was added as the Second Defendant in this action on 14^th March 2001 by a Court Order of that date. Answers to interrogatories were filed on 5^th July 2001.

The Plaintiff’s Summons

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In this case, the Plaintiff’s Summons is reallyeally a Summons for further directions as the only steps left unfilled as directed by the Order for directions on 9^th August 2000 are the listing of the action and the service of Certificate of Readiness on all the parties to the action. This Summons was filed under Order 27, rule 2 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). This rule enables any party in an action with the consent of the other party or by Court order to raise a point of law and have it determined by the Court before the trial takes place. Here the Plaintiff is asking the Court to set down for hearing and determination of the legal grounds upon which the Defendant bases its defence. These are the points of law to be determined before trial takes place.

Determination by the Court

Counsel for the Plaintiff, Mr. Apaniai, arghat in terms of the answersswers to the interrogatories file on 5th July 2001, the Defendant had admitted that the loan agreements between the parties had been executed, the loan monies had been received, charges were created over the Defendant’s properties as security for the repayment of the said loans, a bill of sale had been registered over the Defendant's chattels as security and failure to repay the loan. On this basis, Mr. Apaniai argued that as to facts, there was not dispute about them and therefore the Plaintiff’s case clearly met the purpose of Order 27, rule 2 of the High Court Rules. Counsel for the 1^st Defendant Mr. Nori, argued the opposite. He stressed that in this case facts were not agreed and that evidence could be called at trial to prove the unlawfulness f the NPF Board’s decision to finance the loans under the General Reserve Fund and the disbursement of the loans. I think the starting point is Order 27, rule 2 of the High Court Rules. Rule 2 states –

“…2. Any paall be entitled to raise byse by his pleading any point of law, and any point so raised shall be disposed of by the Court at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial”...

The important word in this rule is “pleading”. Any point of law for consideration must be raised by the pleading of that party wishing to invoke this rule. Order 1, rule 1 of the High Court Rules defines the word “pleading” as including

“any petition or summons and also incl includes the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant;

In terms of Order 32, rule 1(a) of the High Court Rules, the Plaintiff must take out a Summons for directions 14 days from the time the pleadings are deemed to be closed, in this case, the Plaintiff’s reply was filed on 1 May 2000. T00. The Summons for directions was filed on 17^th July 2000 and the Order for directions made on 9^th August 2000.

class="Mso="MsoNormal" style="text-align: left; margin-top: 1; margin-bottom: 1"> The pleadings must be deemed to have been closed at the date date the reply was delivered. The evidence so far up to this stage is the evidence upon which the point of law must have determined under the procedure in Order 27, rule 2 of the High Court Rules because this is what rule 2 says. This must be the case because in practice, summons for directions taken out after pleadings have closed, do not need to b supported by further affidavit evidence in addition to the pleadings. Here, it could appear that the Plaintiff decided to seek further directions on the basis of answers given by the Defendant in response to interrogatories filed b the Plaintiff supported by affidavit evidence of the Plaintiff’s Solicitor, Mr. Apaniai filed on 27^th July 2001 and by Mr. Veo filed on that same date. Mr. Veo’s evidence should be reserved for the trial proper as far as it is relevant to the issues question. Even disregarding the evidence beyond the pleadings proper would still not assist the Plaintiff because in the pleadings, the Defendant denies liability in paragraph 3 of the Defendant's defence. Clearly, the Defendant would envisage evidence to be called at the trial on the issues in question. The facts as disclosed in the pleadings are not agreed as suggested by Mr. Apaniai. In the result, I reject the Plaintiff’s application. The Application is dismissed with costs.

F. O. Kabui

Judge