Tahani v Attorney-General [2002] SBHC 101; HC-CC 245 of 2001 (6 February 2002)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 245 of 2001

PETER TAHANI

V

ATTORNEY-GENERAL
(Representing the Solomon Islands Government)

AND

COMMISSIONER OF POLICE
(Representing the Solomon Islands Royal Police Force)

HIGH COURT OF SOLOMON ISLANDS
(FRANK O. KABUI, J.)

Date of Hearing: 4^th February 2002
Date of Judgment: 6^th February 2002

Mr P. Tegavota for the Plaintiff
M S. Manetoali for the Defendant

JUDGMENT

(Kabui, J): The Plaintiff filed a Writ of Summons against the 1^st Defendant and the 2^nd Defendant (the Defendants) on 13^th September 2001. The Statement of Claim was also filed the same day by which the Plaintiff claims certain relief against the Defendants. The Writ and the Statement of Claim were served by Mr Tegavota, the Solicitor for the Plaintiff, on the Defendants on 19^th September 2001. A Memorandum of Appearance was filed on 24^th September 2001 by Mr Manetoali, the Solicitor for the Defendants. By letter dated 2^nd November 2001, Mr Tegavota, the Solicitor for the Plaintiff, wrote to Mr Manetoali, the Solicitor for the Defendants, telling him that as far as he was concerned, the Defendants had no defence. A draft consent order was enclosed in that letter for the attention of the Solicitor for the Defendants. Since that letter, nothing more happened until the Plaintiff filed a Summons for leave to enter judgment in default of defence under Order 29, rule 14 of the High Court (Civil Procedure) Rules, (the High Court Rules). That Summons was supported by an affidavit filed by Mr Tegavota himself on 27^th November 2001. The Orders sought were-

1. That leave be granted to the plaintiff to enter judgment in default of defence against the first and the second defendants in this action.
   
2. That the Court to grant such other or further orders as it sees fit.
   

I heard the Plaintiff's Summons at 2:30 pm on 4^th February 2002. At the hearing, Mr Tegavota, informed me that Mr Manetoali had filed a Summons in the morning and was seeking to apply for an extension of time to file his defence. The Orders sought were-

1. That the First and Second Defendants be granted enlargement of time to file their Defence in this action.
   
2. That the Court to grant such other or further orders as it sees fit.
   

Mr Manetoali having failed to file the usual affidavit, sought leave to give oral evidence on oath from the witness-box as to the reasons for his delay in filing a defence. I gave leave and his evidence was this. He said that he was the Solicitor on record for the Defendants. He said upon being served with the Plaintiff's Writ and Statement of Claim, he filed a Memorandum of Appearance on 27^th November 2001. He then wrote to the 2^nd Defendant seeking instructions. He said he did not receive instructions until Friday 1^st February 2002 when Detective Sergeant Taro called at the Attorney-General's Chambers to give instructions. He said he had commenced the preparation of the defence but was yet to be completed. However, Mr Manetoali said he had been away overseas between 7^th - 16^th October 2001 and between 18^th November to 2^nd December 2001. He said went on leave as from 27^th January 2002. He said after his return from Sydney after 16^th October 2001, he had a family problem and was absent from duty from time to time. He said that Detective Sergeant Taro might have called in the Attorney-General's Chambers during his absence and he was not there to take instructions. He said on being cross-examined by Mr Tegavota that he did not recall passing his file to other officers in the Attorney-General's Chambers to ensure that the case progressed speedily.

What should I do in this case?

This is a bad case of delay by the Solicitor for the Defendants. It borders on negligence. It is always a good practice that when the Solicitor handling a case is to be absent for a longer time, he or she must ensure that another Solicitor handles the case in his or her absence. The case File must not be forgotten or left lying on his or her desk. Handing over notes is useful to the other Solicitor in this situation. Having said this, I must return to Order 64, rule 5 of the High Court Rules that gives power to the High Court to extend time in the interest of justice. This power is discretionary. Solicitors must as far as possible use rule 6, which allows extension of time by consent. Having said this, I must return to the facts of this case. In this case, the Plaintiff could have proceeded directly to trial and need not wait for a defence to be filed. The reason is that the default procedure for moving for a motion for judgment is permissively only and not mandatory (see Harold Tarasel v Edwin Kiriuvi and Others (Civil Case No. 262 of 1997)).

The manner in which the Plaintiff's action is framed is rather confusing. He seeks a declaration and consequential relief by Writ of Summons. He also claims the sum of $224,579.55 as value of his properties seized by the Police. It is the way the Plaintiff frames his claim that makes him believe that the Defendants do not have a defence. I am not totally convinced that there is a need for defence to be filed in this case. A declaratory relief such as is asked for by the Plaintiff is a relief that is subject to the discretion of the Court. However the issue of liability may be contested by the Defendants and the Defendants may wish to do this in some other way. For this reason, I will give the Defendants the last chance to do so. I will dismiss the Plaintiff's application and grant the Defendants' application for extension of time. I will grant an extension of 7 days from today within which the Defendants must file their defence. The Defendants will pay the cost of the Plaintiff's application.

F.O. Kabui
Judge