HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 15 of 1998

RODERICK TERRY KERA

V.

MBAEROKO TIMBER COMPANY LIMITED,
GOLDEN FOUNTAIN, (S. I.) CO.
NELSON HUTI AND ATTORNEY-GENERAL

HIGH COURT OF SOLOMON ISLANDS
(F.O. Kabui, J.)

Date of Hearing: 21st March 2002
Date of Ruling: 28th March 2002

Mr C. Ashley for the 1st Defendant.
Mr F. Waleanisia for the 4th Defendant.

RULING

(Kabui, J):	The Solicitor for the 1st Defendant filed a draft judgment order on 20th December 2001 for me to sign and perfect. I did not do so because I was not sure that the 4th Defendant had been served with the order I signed on the 26th November 2001. It was known that the Solicitor for the 4th Defendant, Mr. Waleanisia, was not in Court on the 26th November 2001 when I made the order to be served on him. If he had not been served, the order cannot be held against him for failing to file his defence within 21 days. I therefore directed the Registrar to request the Solicitor for the 1st Defendant to file an affidavit in support of the draft judgment order. That affidavit was filed on 20th December 2001 in the afternoon by the Solicitor for the 1st Defendant. The content of that affidavit was brief and lacking in terms of complying with Order 9, rule14 of the High Court (Civil Procedure Rules) “the High Court Rules”. There must be personal service on the party to be served or else on the relevant advocate or the recognized agent of that party. Exhibit “CKA’’ attached to the affidavit was just a covering letter dated 26th November 2001 signed by the Solicitor for the 1st Defendant and addressed to the Attorney –General of the Attorney-General’s Chambers. The affidavit does not say who effected service and upon whom and at what time service was effected (see Court of Appeal decision in Leslie Allison v. Monique Medlin, Civil Appeal No, 7 of 1996). Being in doubt about the correctness of service, I further directed the Registrar to request the Solicitor for the 1st Defendant to file a Summons seeking the same orders sought in his draft order and serve it on the 4th Defendant. That Summons was filed on 31st January 2002. I assumed that this Summons had been served on the 4th Defendant, although there is no affidavit of service in the Court File. The hearing date was 21st March 2002 at 9:30am. Both Counsel were present in Court and made submissions.

Extension of time

The 4th Defendant decided to file and did file a Summons on 22nd February 2002 seeking the following orders-

1.	That leave be granted to extend time to allow the 4th Defendant to file his defence;

2.	That the 1st Defendant’s application for an order for judgment be dismissed.

The Background

The Plaintiff in the first place was Roderick Terry Kera. He filed an Amended Writ of Summons together with an Amended Statement of Claim on 20th July 2001 claming relief of various kinds against all the Defendants including the 1st and 4th Defendants. The 1st Defendant filed its defence on 21st August 2001 in which the 1st Defendant claimed against the 4th Defendant the sum of $637,226.82 as export duty on logs exported from Dorah Island. This sum was the export duty paid as a result of revocation of duty remission previously granted by the Government to the 1st Defendant. In the meantime, Roderick Terry Kera as the original Plaintiff dropped out of the scene as a result of a consent order executed by the parties on 21st August 2001 by which the Plaintiff agreed to discontinue his action against all the Defendants. The Plaintiff filed a Notice of Discontinuance on 23rd August 2001 confirming his agreement to do so. In the meantime, orders for directions were made on 21st September 2001 requiring the 4th Defendant to file defence within 21 days and the 1st Defendant to file a reply within 14 days thereafter. By Summons filed on 18th October 2001, the 1st Defendant sought orders to the effect that the 1st Defendant was entitled to judgment for damages valued at $637,226.82 plus interest of $107,648.88 for the period 31st July 2001 to 31st September 2001 together with interest at 5% of $744,875.70 from 1st October 2001 until payment and costs to be taxed if not agreed. I heard this Summons on 26th November 2001 at 11:00 am in the morning of that date and made an order against the 4th Defendant in the absence of Counsel acting for the 4th Defendant.

The 1st Defendant’s Case

The case for the 1st Defendant was that it was entitled to judgment because the 4th Defendant had failed to file defence within the 21 days specified in the orders for directions on 21st September 2000 resulting in “the unless order“ I made on 26th November 2001. The 4th Defendant had also failed to apply for extension of time within 21 days specified in the said unless order. Counsel for the 1st Defendant, Mr. Ashley, argued that the 4th Defendant had no good excuse for having failed to file defence within time or to apply for extension of time. The second point he made was that the 4th Defendant produced no evidence to suggest that the 4th Defendant had a prima facie defence to the action against it. He further argued that the 1st Defendant’s claim was a liquidated sum that required no further assessment.

The 4th Defendant’s Case

The 4th Defendant’s case was that the delay in filing defence could be explained. The affidavit sworn and filed by Mr. Waleanisia on 22nd February 2002 explains that awaiting instructions from the Ministry of Finance took a very long time. In fact, it took about 5 months before someone from the Customs and Excise Division gave instructions. The letter seeking instructions was dated 24th September 2001 with a reminder dated 15th November 2001. Instructions came only in February 2002. No defence could have been filed in November 2001. The absence of Mr. Waleanisia from Court on 26th November 2001 was due to family reasons, which were explained to the Court. Mr. Waleanisia only saw the order of 26th November 2001 and other documents on or about 12th February 2002 whereupon he proceeded to apply for an extension of time and thereby prepared a defence. Apart from that, Mr. Waleanisia, argued that the 4th Defendant did have a prima facie defence in this case. He said the defence being points of law, which were important in the public interest. That is to say, whether the Minister of Finance in granting the alleged duty remissions and allegedly revoking them would have any legal consequences in the light of the ruling in Golden Start Trading Corporation Limited v. Attorney-General (on behalf of the Minister of Finance) (Civil Case No.193 of 1997).

Court’s Determination

As usual the starting point is Order 64, rule 5 of the High Court (Civil Procedure Rules) “the High Court Rules” which gives the Court the power to extend time where justice requires that power to be exercised by the Court. The power of the Court is discretionary in nature. Although the Court does have this discretion to grant extension of time it cannot do so in a vacuum. There must be evidence before the Court upon which the Court makes a decision in one-way or the other. The evidence in this case is the affidavit filed by Mr. Waleanisia on 22nd February 2002. Clearly, the delay by the instructing Ministry was the cause of the delay in filing the defence. The other factor in the delay was the fact that Mr. Waleanisia had not seen the Court order of 26th November 2001 until 12th February 2002 in February 2002 the same month instructions were given to him the Solicitor for the 4th Defendant. This fact would clearly suggest that even if the Solicitor for the 4th Defendant had been properly served with the Court order of 26th November 2001, no defence would have been filed until after 12th February 2002. The 4th Defendant’s defence was filed on 22nd February 2002, which meant a delay of 10 to11 days. In the case of Lawrence Lae and Willie Karejama v. Valahoana Company Integrated Development and Others Civil Case No.269 of 1999, the delay to file the defence was 7 months by the time it was filed in Court. I accepted the defence filed. I applied the same approach in the case of Nelson Koroi v. Transwest Company Limited, Civil Case No. 007 of 2001. The period of delay in that case was about 3months or so. I did the same in the case of Peter Tahani v. Attorney-General Civil Case No. 245 of 2001. The delay was also about 3 months. (Also see Solomon Islands Home Finance Limited v. Sophia Chotu, Civil Case No. 91 of 2001). The other factor that affects the discretion of the Court is if there is evidence of a prima facie defence on the part of the Defendant. In this case, the defence raises a point of law. That is an issue that calls for consideration by the Court (see Ross Mining (S. I.) Limited & Gold Ridge Mining Limited v. Willie Roni & David Thuguvoda, Civil Case No. 294 of 1997), Westpac Banking Corporation v. R. D. & Sons Commercial Development Ltd and Others, Civil Case No. 157 of 1999 and Development Bank of Solomon Islands (DBSI) V. Daisy Betu & Brownless Zaku Civil Case No. 203 of 2000). The defence also denies some facts alleged by the 1st Defendant in its claim against the 4th Defendant. In my view, the 1st Defendant should be allowed to defend this action. In fact, defence had already been filed. I would allow extension of time for the 4th Defendant to file its defence. The application by the 1st Defendant is refused. Costs will be costs in the cause.

F.O. Kabui
Judge