Kisina v Delta Timber Company [2013] SBHC 68; HCSI-CC 17 of 2012 (17 June 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 17 of 2012.

BETWEEN:

JOSEPH KISINA
Claimant

AND:

DELTA TIMBER COMPANY
Defendant

Date of Hearing: 5th June, 2013
Date of Ruling: 17th June, 2013

Mr. D Lidimani for the Claimant
Mrs. N Tongarutu for the Defendant.

RULING.

Faukona J: This is an application for leave to revive the claim, which was withdrawn and dismissed by this Court on 7th of October, 2011 by consent of Counsels.

2. The Claimant in support of his application deposed by virtue of his sworn statement that never at any time within the material period instructed his former Solicitor to withdraw or discontinue the matter against the Defendant. He further states that upon learning of the withdrawal and dismissal he made numerous efforts throughout the course of 2011 and first quarter of 2012 to get proper explanation from his solicitor but to no avail.

3. Besides that he attempted on numerous occasions to repossess his file from his former Solicitor but his request was ignored. Hence instructed RANO & Co. Lawyers to write a letter, which it did in late November, 2011.

4. It is not contended that the Claimant was present in Court on the date the withdrawal and dismissal was granted. Mr Lidimani confirms in Court that Mr P Tegavota informed the Claimant of the Court orders as he walked out of the door of the Court room. Whatever message was disseminated cannot be verified but it is understood the Claimant knew of the fate of his case at first instance. Whether that knowledge accommodates instructions related to discontinuation is what he denies.

5. I noted the Claimant took steps immediately and by 28th November his current solicitors wrote to PT Legal Services for transfer of his file. Apparently, the Claimant by his spontaneous action and within a month after the orders, he expressed his grievances of how his former solicitor handled his case. If his Solicitor acted within the scope of his instructions he would not have or even bother to seek assistance from other Solicitors.

6. There can be no doubt there is some gravity of delay but would not in any sense consummated as undue delay.

7. Mrs Tongarutu even raise the issue of the possibility that Claimant would not succeed in his claim. She refers to the sworn statement of Mr Silas Makini the business partner of the Claimant filed on 18/7/2011. Mr Makini deposed that he sold all the timbers left in the bush to Donald Makini in 2007 and nothing was left. This piece of evidence is relevant when considering joinder of Mr Makini as a party to this case.

8. To conclude whether the Claimant will succeed with his claim or not is matter for the Court to assess after full trial. At this stage it is premature to consider the strength of the Claimant's case, nor would it be a consideration required by the rules to account when considering an application of this nature.

9. In all that I say, I therefore grant leave for the Claimant to revive his claim, which was withdrawn and dismissed on 7th October, 2011, be reinstated, and Mr Silas Makini be joinder as party to this case.

Order:

1. Leave granted that the Claimant's claim be reinstated.

2. Mr Silas Makini be joinder as party in this case.

3. Cost payable to the Claimant.

The Court.