Baewai v Attorney General [2009] SBHC 42; HCSI-CC 53 of 2007 (28 August 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 53 of 2007

BETWEEN:

PETER BAEWAI
Claimants

AND:

ATTORNEY GENERAL (Representing Speaker of Makira/UlawaProvincial Assembly)
Defendant

(Mwanesalua, J.)

Date of Hearing: 14 August 2009
Date of Ruling: 28 August 2009

Mr. Watts for the Petitioner
Mr. Danilea for the Respondent

RULING

Mwanesalua J:

The Petitioner (Mr. Baewai) was elected member for Ward 7 of Makira/Ulawa Province in 2003. However, on 22 January 2007, the Speaker of the Provincial Assembly disqualified him of such membership due to his absence from the province from late 2006 to 22 January 2007, when he was with his sick wife and baby attending medical treatment at Hospital in Honiara.

Mr. Baewai filed his Petition under Sections 15, 16 and 17 of the Provincial Government (Cap. 118) as Amended, on 21 February 2007, seeking determination of question of Law and damages arising from his termination as Provincial Member for Ward 7. His Solicitor from the commencement of his case is Watts and Associates. On 28 May 2007, his advocate served the Petition on the Attorney General; represent the Speaker of the Makira/Ulawa Provincial Assembly. Further, his advocate sought the consent of the Attorney General for him to amend the proceedings so that the action can be taken by way of an originating summons rather than a petition. This letter was copied to the Registrar of the High Court on 2 October 2007. On 2 October 2007, the Registrar reminded Mr. Baewai’s advocate by letter that no originating summons has yet been file in court.

There were no further steps taken on Mr. Baewai’s Petition from 28 May 2007 until 26 July 2009, when the Attorney General filed this application under rules 9.72 (d) and 9.73 (a) of the Solomon Islands Courts (Civil Rules 2007, (" the Civil Rules"), to strike out the Petition. The ground for striking out is that no further steps were taken in respect of the Petition since it was filed on 21 February 2007. Mr. Watts representing Mr. Baewai at the hearing of this application, submitted that;

(1) the failure to take further steps was the failure of advocate and not Mr. Baewai himself and

(2) that the court may exercise its discretion to refuse the orders sought in the application.

The records in the case file show that this case was listed for mention on 29th April, 13 May, 27 May, 26 June and 9 July 2009. Mr. Baewai’s advocate did not attend court on these dates. As a result this application was filed requiring Mr. Baewai to show cause why his Petition should not be struck out. Mr. Baewai told the court that the failure to progress the case was due to his advocate’s inaction action. The court accepts this to be the case.

Mr. Baewai’s case was filed within the period provided by law. His sworn statement and exhibits were also filed in court. Mr. Baewai has come to court for relief and determination on whether his removal as member of ward 7 was done according to law. The failure to take further steps on his case lies with his advocate. It would not be fair for Mr. Baewai take personal blame for it. The court will not therefore exercise its discretion to strike out the petition.

Orders of the Court:

1. The application to strike petition out is refused.
   
2. Costs to be costs in the cause.
   

F Mwanesalua J
THE COURT