Horahanua v Totorea [2007] SBHC 12; HCSI-CC 159 of 2004 (30 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 159 of 2004

ISHMAEL HORAHANUA

-v-

JOE RODI TOTOREA

Date of Hearing: 30 March 2007
Date of Judgment: 30 March 2007

J. Apaniai for the plaintiff/respondent
W. Tigulu for the defendant/applicant

JUDGMENT

Summons to strike out appeal for that the plaintiff/respondent has failed to comply with directions of the Court given by consent of the parties.

Brown, J: By summons the Respondent seeks this court’s order dismissing the appeal by Ishmael Hoahania against a decision of the Customary Land Appeal Court, Malaita given on the 6 February 2004.

The grounds on which the Respondent relies do not relate so much to the appeal reasons but rather to the terms of a consent order for directions given by my brother Judge Mwanesalua, for the hearing of this matter.

For by that consent order, the appellant Ishmael Hoahania was obliged to comply with direction readying the appeal for trial failing which the Appellant faced the dismissal of his appeal.

By earlier order 7 of such directions, the plaintiff was obliged to file and serve on the defendant, a "submission in reply" within 7 days of service of the defendant’s submission. On the 21 August 2006, the defendant served its submission on the plaintiff but no reply had been received to the date of the summons to strike filed on the 27 September 2006.

It is clear that the summons to strike does not rely on O. 69 of the High Court Rules – (non-compliance with rules not to render proceedings void).

Again it is clear that the "reply" referred to in the agreed directions order of Mwanesalua J, is not a "pleading" as understood in the High Court Rules but a reply to the written argument of the respondent.

(For where the case for an applicant shows no reasonable cause of action or the proceedings are frivolous or vexatious or are an abuse of the process of the court, the court may "order that the action be stayed or dismissed or judgment to be entered accordingly as may be just" (O. 27 r. 4)).

The rule has no application in this case before me for the "reply" is not a pleading and of course, the proceeding instituted by the plaintiff is an appeal, not a cause of action.

What is important to take from the case law surrounding the claims to dismiss on this basis, is the underlying reluctance of the court to deny access to the tribunal empowered to hear the dispute.

Such is not the case here, however, for the material on which the appellant relies and to that which the respondent points as affording him the claim to dismiss the appellant’s appeal, is already before the court.

The CLAC reasons for decision are the reasons impugned by the plaintiff/appellant. Those reasons have been delivered to this court. The argument of the plaintiff/appellant is directed by his notice of appeal and his lawyer’s submissions to points of law on which he says, this court should find justification to quash such CLAC findings and make consequent orders. The respondent has made submissions to the contrary.

Plainly a court should not bar an appellant from a proper adjudication of his appeal (unless by his conduct the appellant has clearly allowed his appeal to lapse from want of prosecution) for his recourse at law is then extinguished. To agree to such extinguishment by consent, (as presumed to appear on the face of the consent order for directions) cannot bind the disadvantaged party for this court cannot purport to exclude by such conduct, a justiciable complaint, from the constitutionally appointed court or tribunal to hear it. Such purported ouster of jurisdiction even by consent, or mistake has no validity at law.

In this case it is plain the plaintiff/appellant dos not see any need or purpose in responding to the argument of the defendant contained in his submissions, for that, perhaps, his contra arguments in the appellant’s original outline of submissions are quite adequate and need no further elucidation.

The application to strike must fail. The defendant’s summons is struck out. Costs shall be costs in the cause, for the argument about the appeal may proceed forthwith.

THE COURT