Solomon Islands Electricity Authority v Smart Solomon Ltd [2011] SBHC 119; HCSI-CC 286 of 2010 (12 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, J).

Civil Case No. 286 of 2010.

BETWEEN:

SOLOMON ISLANDS ELECTRICITY AUTHORITY
Claimant.

AND:

SMART SOLOMON LIMITED
Defendant.

Date of Hearing: 10th October 2011.
Date of Ruling: 12th October 2011.

B. Upwe for the Claimant.
J. Zama for the Defendant.

RULING.

Faukona, J: There are two applications in this case. Parties have consented that they be heard at once. The first application relates to show cause why the proceeding should not be strike out pursuant to Rule 9.73 for taking no reasonable step in the proceeding for six months. Secondly, is an application by the claimant for summary judgment pursuant to Rule 9.57.

2. In dealing with the first application, a notice dated 1st July 2011, signed on behalf of the Registrar of the High Court, was sent to the claimant to appear in Court to show cause why the proceeding should not be strike out. Roughly nine months was passed with no steps taken in the proceeding.

3. Mr. Upwe in explaining the claimant's position did not deny there were delays, but submits that the delay was an administrative oversight. Mr Zama argues otherwise, that administrative failure does not mean the Rules can be manipulated; nor does it amount to reasonable excuse for the claimant's failure. The rules are straight forward and clear.

4. What amounts to administrative oversight is not narrated clearly. However, noted from the evidence are certain significant events. The claim was filed on 30th July 2010 for the unpaid and arrears in electricity bill total up to $316,069.48. Despite that, on 16th September 2010 an arrangement was agreed upon by the parties that this case be suspended and that defendant to settle all the arrears within 60 days. That may seem as an offer of grace period of two months. Lapse of two months did not change the defendant's position, at the same time the suspension of the case has no time limit.

5. It is presumably correct to say that allowing two months and even longer than necessary, right up to 1st July 2011 when notice to strike out was issued, was sufficient time allowing the defendant to settle his bills as a favour to avoid litigation in Court.

6. The case of Bartlett v Hai Way International Company[1] assisted me to decide though there was delay for almost nine months; it was not an abuse of Court process. In fact the delay allows time for the defendant to settle his arrears. It was for some reason a good purpose. It is not an inordinate delay to justify strike out. The measure advocated under Rule 9.73 is to keep track of the case so that it is not unnecessarily hold up. The delay in my view does not abuse the court process. I therefore exercise discretion and refuse order to strike out the claim.

7. In the second application the main argument circles around the fact that the application premises on Rules 2.9 and 7.5 which provide no basis for application for summary judgment. Noted from the application documents filed on 19th July 20011, it proves so.

8. Mr Upwe on submission relies on Rule 9.57 with the belief that the defence filed does not have real prospect of defending the claim. Whilst he is right in doing so, the application was filed under different Rule. Rule 7.5 concerns with application for an interlocutory order during or after proceeding.

9. Mr Zama submits that the Claimant's submission has no basis because of the noncompliance with the Rules. He suggests the proper Rules are 9.57, 9.59 and 9.60. He further suggests if Mr Upwe wishes to rely on Rule 9.57 he should first apply for leave to amend Rule 7.5 before preceded under authority of the above rules. Nothing has been done in this case.

10. The revelation indeed may have caused some embarrassment to Mr. Upwe. He does not impart any reason for use of the rules perhaps by mistake or oversight again. However, it is something worth consideration. Importantly Counsels come to Court with a conscious mind with confidence ensuring they are well prepared; the documents, sections, rules are rightly quoted and in order.

11. In this case the rules are in conflict and cannot be merged because they provide for two different types of proceedings. It is a clear case of noncompliance with the rules. In the case of Zhou Jian Ming V Delbert Lennea,[2] where a similar circumstance arises, Mwanesalua J, state on page 2 paragraph 5, last sentence;

"A failure to comply with the rules is an irregularity and does not make an application a nullity. But the Court may declare such application as ineffectual"

12. From a clear perspective, the application for summary judgment where orders sought is final and not interlocutory. The two cannot merge in a single application; or where intention is for summary judgment cannot at the same time for an interlocutory order which is interim. In this situation it is proper to declare the application ineffectual for noncompliance, and be dismissed. However, in the interest of justice liberty is granted for the claimant to reapply.

Orders:

1. Refuse order to strike out claim for not taken step in the proceeding for six months.

2. Application for summary judgment dismissed with liberty to reinstate.

3. Cost of this application be borne by the claimant and payable to the defendant.

The Court.

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^[1] [2007] HCC No. 258 of 2007 (15 March 2010]
^[2] [2009] HC-CC No.117 of 2009 (17 June 2009).