Campbell v Masuraa [2013] SBHC 170; HCSI-CC429 of 2011 (19 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case 429 of 2011

BETWEEN:

FRANK LESTER CAMPBELL, DONALD WALLACE CAMPBELL & AGNES MARY CAMPBELL
Claimants

AND:

WALTER MASURAA, JIMMY SUAROSI & VERONICA NUNU (trading as Bawest Development Holdings) (BN 342/04) AKA Bawest Development Association)
1st Defendants

AND:

MIDDLE ISLAND DEVELOPMENT CO. LIMITED
2nd Defendant

AND:

ROBERT WAIWAIRIKI, JACKSON KOU, JAMES KOIMASI and REGINALD NUNU(representing all other persons who purportedly granted access over Parcels 251-005-1 and 251-001-1)
3rd Defendants

Mr. D. Marahare for the Claimants.
No appearance for the 1st, 2nd and 3rd Defendants.

Date of hearing: 19th November 2013.
Date of Judgment: 19th December 2013.

RULING

Apaniai, PJ:

1. This is an application by the Claimants for an order to strike out the pleadings of the 1st, 2nd and 3rd Defendant and for judgment to be entered for the Claimants on the basis of non-compliance with orders made on 3 February 2012 and perfected on 17 May 2012 ("May 2012 interim orders").
   
2. The orders were in the following terms:-
   

[1] The Defendants, their servants, agents and anyone acting on their behalf shall be forthwith restrained from remaining on or entering any part of the FTE's 251-005-1 and 251-001-1 until order of the court.

[2] The number of logs the Claimants allege to have been felled on or removed from the said FTE's shall be tallied and/or counted by the Claimants and details given to the Defendants.

[3] If the Defendants do not agree the details given to them by the Claimants of the number of logs so felled or removed they shall, with the written agreement of the Claimants, enter the said FTS's for the sole purpose of conducting their own tally or count and shall give the details to the Claimants.

[4] If the Claimants' permission to enter the FTE's for the purposes set out in paragraph 3 above is unreasonably withheld the Defendants shall be at liberty to apply to the court for an order allowing them to enter the land and to carry out a tally or count of logs felled or removed as set out in paragraph 3 above.

[5] The Defendants are to forthwith produce and file in court a sworn statement giving full details of any timber exported or sold or otherwise disposed of.

[6] The proceeds of any timber or logs exported, sold or otherwise disposed of shall, save for any duty or other sum payable to Solomon Island Government in respect of such export sale or disposal (which duty or other sum shall be paid forthwith to the appropriate department or office of the government and the receipt filed in court) be paid into court to abide the event.

[7] There be liberty to apply on two days notice.

[8] Costs in the cause.

[9] Adjourned for mention to Motion day 8th March 2012.

3. The orders were made pursuant to an application for interim prohibitive orders, amongst others, to restrain the Defendants from entering and carrying out logging activities in two registered parcels of land called Waiae estate (PN 251-005-1) and Waimasi estate (PN 251-001-1).
   
4. By order perfected on 17 July 2012, the claim in respect of Waiae estate (PN 251-005-1) was struck out on the ground that the lease of that estate to the Claimants had already lapsed on 1 July 2011. All orders previously made in respect of Waiae estate were also struck out including that part of the May 2012 interim orders applicable to Waiae estate. The remainder of the May 2012 interim orders relating to the Waimasi estate (PN 251-001-1) continued in force.
   
5. The May 2012 interim orders were served on the 2nd Defendant on 26 July 2012. Neither the 1st and 3rd Defendants nor their solicitors, HM Lawyers, were present in court when those orders were made and there is no evidence that those orders were served on the 1st and 3rd Defendants or their solicitors.
   
6. On 30 August 2012, a further order was made against the 1st, 2nd and 3rd Defendants restraining them from entering Waimasi estate (PN 251-001-1) and carrying out logging therein.
   
7. On 5 May 2013, orders were made for filing of reply to the defence to the amended claim and for the usual orders for disclosure and inspection of documents and interrogatories and answers thereto.
   
8. It appears that the Defendants had not complied with the May 2012 interim orders, hence, on 25 July 2013, the Claimants filed this application seeking orders to strike out the pleadings by the Defendants for failure to comply with the May 2012 interim orders and to enter judgment against the defendants.
   
9. I have heard Mr. Marahare for the Applicants, but not the Defendants or their counsels. Nevertheless, I do not think I can grant the orders sought in this application. The reasons are, first, while there is evidence that the 2nd defendant has been served with the orders, there is no evidence that the 1st and 3rd Defendants or their solicitors were served. A person cannot be penalised for failure to comply with orders of which he has no knowledge.
   
10. The second reason is the delay in filing the application. The orders were made in February 2012 although perfected in May 2012. Since then, no action has been taken to ensure compliance with the orders. Instead, further direction orders were obtained on 5 May 2013 in order to progress the case further. This application was filed on 25 July 2013, which is more than a year later. Striking out a claim and entering judgment in default of pleadings are discretionary and the court cannot assist those who sleep on their rights. In saying this, I must not be taken as condoning disobedience to court orders. Those who deliberately choose to disobey court orders must expect to meet the consequences provided for under law. However, those for whose benefit the orders were made must also be vigilant and ensure that necessary action is taken within a reasonable time in the event of non-compliance by the party against whom the orders were made.
    
11. The delay in making this application coupled with the making of the directions orders on 5 May 2013 have given me reason to think that the appropriate orders to make in those circumstances would be to dismiss this application and allow the parties to comply with the orders of 5 May 2013.
    
12. Accordingly, this application is dismissed. In the light of the conduct of the Defendants in this proceeding in failing to appear on this application, the Defendants shall pay the Applicants' costs of this application on indemnity basis.
    
13. Orders accordingly.
    

THE COURT

James Apaniai
Puisne Judge