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

Civil Case No. 52 0f 2007.

BETWEEN:

JAP HOLDINGS LIMITED
Claimant

AND:

ENOCH NAOMANE
Frist Defendant

AND:

EN TECHNOLOGIES LIMITED
Second Defendant

AND:

SOLOMON ISLANDS NATIONAL PROVIDENT FUND LIMITED
Third Defendant

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED.
Fourth Defendant

Date of Hearing: 21st August 2013.
Date of Ruling: 10th September, 2013.

Mr. J. Keniapisia for the Claimant.
Mr D. Tigulu for the First Defendant.
No one for Second Defendant.
Mr. K. Levi for Third Defendant.
Mr. A. Radcliffe for the Fourth Defendant.

RULING ON APPLICATION FOR DISMISSAL.

Faukona J: This application was filed on behalf of the Fourth Defendant on 28th June, 2013. The application seeks an order to dismiss the claim against the Fourth Defendant and costs on indemnity basis.

2. The Counsel for the Claimant was not physically in Court but perhaps in Kirakira by then. However, his letter of 7th August, 2013, paragraph 4 conceded that the court can accept one of the options alluded therein. Court resort to first option by allowing application be preceded and written submissions filed by Counsel is sufficient for consideration. The other option for adjournment is considered as not appropriate.

3. The substantive cause of action was first filed on 20th February, 2007. The Fourth Defendant was not a party then. The Fourth Defendant was joined as party by a ruling on 29th April 2013, by Mwanesalua J.

4. The joinder by the Fourth Defendant was pursuant to Court of Appeal order in Civil Case No. 43 of 2011, which ordered a retrial, and paved a way for the ruling by Mwanesalua J. Following that ruling the Claimant filed further amended claim on 30th April, 2013, which the Fourth Defendant was named as a party.

5. In substantiating this application, the 4th Defendant relies on three grounds. The first two concern breach of the Court Rules and the third one is a question of statute bar.

6. In relation to breaches of the Rules, Mr Radcliffe submits that the Claimant has breached Rule 14.37. Mr Hanaria who deposed a sworn statement was issued with a notice pursuant to Rule 13.9 to attend court and be cross- examined. At trial on 21st August, Mr Hanaria did not appear at all and there was no leave sought. I therefore rule eliminating the sworn statement of Mr Hanaria from being admitted and rely on in this application.

7. The second ground is non-compliance with orders of the Court to provide further and better particulars on a date as ordered. Mr Radcliffe submits the first order was made on 7th June 2013 but was not complied with. Then the second order was made on 18th July, 2013 which the Claimant responded by filing answers on 31st July, 2013. Mr Keniapisia virtually agrees that it is of no effect and the ground should be redundant following the answers supplied and filed on 2nd August, 2013, 2 days late. 2 days late or couple of days late is late. There can be no other simple meaning for it. A day’s late or thousand days late is still late.

8. However, I accept Mr Keniapisia’s submission relying or Rule 1.16 and 1.17. Rule 1.17 (b) reads;

“If there has been a failure to comply with these rules on a direction of the Court, the Court may declare a document or a step taken to be ineffectual”

And rule 1.16 states; failure to comply with a direction of the court is an irregularity and does not make a document or step taken or order made in a proceeding a nullity.

9. With the clarity expose by the Rules, I declare filing of answers to requests on 2nd August 2013, are ineffectual but cannot be part of facts considered to dismiss the claim.

Claim statute barred:

10. The allegations against the Fourth Defendant that it was negligent by allowing the First Defendant to transfer funds from the Claimants account with ANZ to the First Defendant’s personal account also with ANZ. The alleged payments were made between 2003 and 2007.

11. Mr Radcliff submits any claim must be filed within 6 years of the cause of action accruing. All the alleged payments complained of relate to cheques, which were more than 6 years old. Mr Keniapisa submits though the claim is more than 6 years old is not time barred.

12. Mr Keniapisia relies on Section 5 of Limitation Act which states, no action shall be brought nor shall any arbitration commence, after the expiration of six year from the date on which the cause of action accrued. And section 17 states that a cause of action shall be deemed to accrue on the date on which the right to relief by an action first arise.

13. Mr Keniapisai submits that section 5 does not apply to his client because of the operation of S.17, which cures the 6 years limitation. He submits that only one transaction was alleged against the bank for negligence on 18th January, 2007. It appears that that transaction should be the latest. From 18th January 2007 to 30th April 2013, when the amended claim was filed, and upon reading paragraph 10 (h) where the allegation against the bank was stated, it is 6 years and 2 months. Is the cause of action filed late? Or is S.17 of Limitation Act provides mercy to the Claimant at all? Mr Keniapisa by his own submissions admits and knows that on 18th January 2007 was the date on which his client has the right to relief when this action first arose. There can be no arguments, it’s clear and clean; the claim against the Fourth Defendant filed on 30th April, 2009 was indeed late by two and half months and is time barred and should be dismissed.

14. I noted from Mr Radcliff’s sworn statement that there were correspondences to the Claimant’s Solicitor raising the issue of time limitation. Also gave opportunity to discontinue the claim. The claimant’s Solicitor did not take heed and do likewise. Now Mr Radcliff claims costs on indemnity basis, which I am incline to order and I do so accordingly.

Orders:

1. Claim against Fourth Defendant dismissed.

2. Costs be paid to the Fourth Defendant on indemnity basis.

The Court.