Falekwai v General Council of the Assemblies of God [2013] SBHC 80; HCSI-CC 387 of 2008 (4 July 2013)

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

Civil Case No. 387 of 2008.

BETWEEN:

SELWYN FALEKWAI
Claimant

AND:

GENERAL COUNCIL OF THE ASSEMBLIES OF GOD
First Defendant

AND:

THE ATTORNEY-GENERAL (In respect of the Commissioner of Lands)
Second Defendant.

Date of Hearing: 1st July, 2013.
Date of Ruling: 4th July, 2013.

Mr A. Rose for the Claimant.
Mr G. Fa'aitoa for the first Defendant.
Attorney General consent to the application.

RULING.

Faukona J: This application is basically to reinstate the Claimant's claim which was struck out on 24th May, 20011, by the Deputy Registrar of the High Court. In striking out, the Deputy Registrar invoked the powers averted to her under Rule 9.72 (d) which states that the Court may strike out a proceeding without notice, if there has been no step taken in the proceedings for 12 months.

2. Calculated back from 24th May, 2011, Counsels have agreed the case would have been inactivated since 15th December, 2009.

3. The decision to strike out, as it is, is a file management activity because the case per see was inactivated for about 17 months, and cannot progress forward. The decision taken is to ensure files do not lay dormant for far too long.

4. The Claimant now comes to Court armed with Rule 19.6 which specifically states that the Registrar may, on application of any party, order that the proceedings be reinstated on terms and conditions as to costs, etc.

5. May I reiterate again that by strict compliance with the Rules, the Registrar has no power to strike out according to Rules 9.72 to 9.74 except the Court. However, the Registrar does have the power under Rule 19.5 and has the power to reinstate a case it has struck out by virtue of Rule 19.6. If the Practice is acceptable in this jurisdiction for the Registrar to invoke Rules 9.72 – 9.74 to strike out, then, in my opinion the two sets of Rules ought to be read in conjunction.

Explanation for lack of steps taken in the proceedings:

6. In submissions, Mr Rose emphasizes that there are good reasons for failure to inactivate the proceedings within 12 months. The main reason is the personal situation of the Claimant's Solicitor Mrs Bird who was ill commencing June 2010 when she was diagnosed with tuberculosis and was admitted to the National Referral Hospital for three months. There after continued to take medication for six months.

7. Other reasons are that in early 2009, her father was sick with lung cancer and she was caring for him until he died on 3rd October 2009.

8. At the same time she was ill her mother was ill as well. She was admitted to the National Referral Hospital on various occasions and subsequently died on 25th November, 2012.

9. Another failure is that the Claimant is new to Court litigation and was attending Solomon Islands College of Higher Education for studies.

10. Mr Fa'aitoa argues that there is no medical evidence attached to Mrs Bird's sworn statement filed on 25th April, 2013 to prove those illnesses. He further argues that the Claimant is an educated person and having realised his Solicitor failed to move the case forward, he should consider change of advocate immediately rather than waiting for about three years.

11. I agree with Mr Fa'aitoa any medical report would have provided good evidence supporting the death of Mrs Bird's parents and even Mrs Bird's own illness. However, I accept the submission that I can take judicial notice of Mrs Bird's illness for the period she stated in her sworn statement. Indeed, there was wide knowledge by the Court and the lawyers of her illness. For that period, she could not able to attend Court and to represent her clients. Her long absent from attending Court prompted Court and I for one had inquired. Information from other lawyers affirmed Mrs Bird's illness. Not just illness in a superficial meaning but seriously ill. With that reason, alone I ought to take judicial notice of her illness and I do so in this case.

12. The second litigated point is the Claimant's ignorant of Court processes. I accept the fact that the Claimant is one of moderately educated individuals. How familiar is he and how much knowledge he possesses in legal litigations in Court. He may be educated on medical knowledge a different profession from law and Courts. Though this reasons may not be the main one but need to be taken cognizance of it.

13. Having said that I have accepted the Claimants reasons for failure to inactivate the proceedings for 17 months. To give justice to the case it should be reinstated to allow parties litigate the substantive issue in Court. I have perused the case file and I noted there is an arguable cases.

Orders:

1. Striking out order on 24th May 2011 be set aside and proceedings reinstated.

2. Cost is awarded to the Claimant.

The Court.