Harry v Tamana [2014] SBHC 140; HCSI-CC 136 of 2007 (24 November 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

CIVIL CASE NO. 136 OF 2007

BETWEEN:

KEVISI HARRY (Representing himself and members of Sahere, Vuvure clan of Rendova, Western Province)
Claimant

AND:

ASERI TAMANA
First Defendant

AND:

BULACAN INTERGRATED WOODS INDUSTRIES COMPANY LIMITED
Second Defendant

AND:

ATTORNEY-GENERAL (Representing the Minister and Commissioner of Forests)
Third Defendant

Date of Hearing: 16th October 2014
Date of Ruling: 24th November 2014

Mr M. Pitakaka for the Claimant
Mr M. Tagini for the first and Second Defendants

RULING ON APPLICATION TO SET ASIDE AN APPLICATION FOR INTERIM INJUNCTION

Faukona PJ: This case concerns issuant of and challenge to the felling licence No A10449 issued to the third Defendant by the Commissioner of Forest. This application is a composition of setting aside and for interim injunctive orders.

2. The Claimant in this application utilise Rules 2.8 and 7.3 to seek an order to set aside the Registrar's strike out order of 31st March 2010, thereby reinstating the case. Consequential upon reinstatement, further orders for interlocutory injunctions against first and second Defendants in relation to logging operation on the customary land.

3. The Registrar of the High Court had struck out this proceeding pursuant to Rule 9.72 (d) because the Claimant had failed to take steps required within one year to ensure the proceeding continues.

4. To set aside the order, the Claimant now invokes the power of the Court and relies partly on Rule 19.10. This rule allows the Court to review any order made by the Registrar on application by the aggrieved party, provided it was filed within 14 days after the order.

5. In respect of interim injunction, the Claimant relies on provisions of rules 7.3-7.5 and 7.38. By R7.5 (b) the application is supported by a sworn statement by Mr Harry, Mrs Virivolomo and Mr Besa.

6. I will deal with the two applications separately.

Application to set aside and reinstatement of the case.

7. The Claimant pleads that the Court must bear in mind the overriding objective of Rule 1.3 to deal with this case justly and with minimum delay and expenses. With that graceful approach, the Claimant did not deny the he fails to progress his case forward and not prosecuting it for almost four years.

8. The reason for his failure to prosecute the case is a blamed upon his Counsel Mrs Bird. That she failed to take or return telephone calls, failed to appear and fix appointments, absent from her office and failed to apply for an injunction. Therefore, want of prosecution resulting in striking out was not his fault but his previous Counsel's, hence, must not suffer the consequence for inaction by the previous Counsel.

9. Mrs Bird by her sworn statement filed on 16th October 2014, admitted since 2007 to 2012 were the years she experienced personal and family pressure due to health problems. As she narrated, her father became ill in 2007 with cancer and died on 3rd October 2009. About the same time she was sick. About June 2009, she was admitted at the National Referral Hospital for TB. Since then she was inpatient at the hospital until October 2009 and confirmed medical treatment until December 2009. In 2010, her mother became ill and died on 25th November 2012.

10. I have taken judicial notice of Mrs Bird predicaments through ill health and pressure from her family due to health problems. The Court was made aware previously on a number of occasions where many cases she involved in were adjourned and vacated because of her illness and family pressure due to ill health.

11. On the issue of striking out Mr Tagini submits that the Claimant must first renew the claim pursuant to Rule 5.43. Rule 5.43 specifically states, if a claim is not served within 3 months from the date endorsed by the Registrar, by R4.3 the Claimant may apply to the Registrar to have the claim renewed within one month after the expiry period, if not the claim is no longer of any effect.

12. The second part of Mr Tagini's argument correlates to lack of evidence to proof service had been effected upon the Defendant. In the absence of such it could not be expected that response or defence be filed. In this case there was no response or defence being filed at all.

13. It is not a matter subject to argument that the proceeding was struck out on the ground of being no step taken to prosecute and ensure it continues. The Claimant's reason was the failure of inaction by his former Counsel. There is no dispute as to the predicaments of Mrs Bird throughout the period. And I sympathise with her that her illness and pressure from her parent's health had impacted her performance in providing legal services to her clients. I am inclining to accept the reasons for non-prosecution of the case for about three years as excusable.

14. Interestingly Mr Tagini's submission is something that arouses careful thought and proper adjudication. With the urge, I carefully and thoroughly search my file, page by page, and I find there was no claim filed at all. If there was one, but was overlooked due to some fraction of inadvertent blindness, then there is no proof of service by way of sworn statement on file. In any event logic prevail that where there is no claim there is no proof of service as simple as that. That culminates the reasons why Mrs Bird could not able to activate the proceeding. Her predicaments had left her not being able to file a claim and so could not able to arrange services as well.

15. This boils down to Rule 4.1 which states a written claim starts a new proceeding. Filed copies of the claim must be sealed and given a number is accordance to Rule 4.2. In this case there was no copy of any claim identified in the file. No proof of service is a proof of nonexistence of a claim. A claim commences a proceeding. Where there is no claim there is no proceeding at all. The power to strike out under R9.7 is directed at striking out a proceeding in its proper term.

16. The only documents filed on 18th April 2007 were an affidavit sworn by the Claimant and a Writ of Summons. Within the writ of summons there was a statement that said Plaintiff's claim is annexed herewith. There was indeed no annexure attached to the Writ of Summons which denoted the Plaintiff's claim.

17. In the circumstances, as it appears, the documents refer to were not in the nature of interlocutory application so that it be given a different number before filing of a claim R4.2(b).

18. In the absence of any claim filed, it could be difficult to set aside the striking out order that struck out the proceeding. There is no proceeding in existence. If there was one, then there was no proof of service within three months, hence, ceased to be of any effect. There is no evidence the Claimant had applied to renew the claim within one month after the expiry date. In the entire circumstance of this case, I shall refuse to grant orders to set aside the striking out order.

19. On the issue of delay I would accept the reason given by the Claimant but not sufficient enough to change the circumstances. The problem encountered by the Claimant is lack of filing of a claim which commenced the proceeding and which had been struck out.

20. From my discoveries it could have been better if upon receipt of the document; thorough check could have been done to ensure necessary documents were filed before given a distinguishing number. In this case there was no claim filed. Upon checking, the Claimant's Counsel could have been informed to file the claim. Should no claim was filed, there shouldn't be any distinguishing file number given. The documents that were filed at that time were insufficient to start a proceeding. They did not comprise an instituted case at all.

Application for interim orders:
21. The Claimant's application for interim injunctive orders is a derivative rooted in the reinstatement of the proceeding. It is not an application that stands out of its own or in isolations, but is an integral part that connects to the application to set aside and reinstatement of the proceeding. The problem encountered by the Claimant is that the proceeding he depends on is not reinstated. The reason is clear and plain, there was no claim on foot since 4th April 2007.

22. I noted from my readings of the materials before me and the submissions, there are serious issues to be tried (triable issues) and indeed they are clearly exposed by the materials. However, I am legally handicapped to consider and follow on the issue of balance of convenience and the rest of the test due to the fact there was no claim on foot. Without a claim there is no ground or footage to base an application for interlocutory order.

23. Circumstances permitted by this case can be distinguished from usual cases. This is not a fresh case and application. The purported proceeding was filed on 4th April 2007. And perhaps the intention was to apply for injunction orders. That had never occurred. Mrs Bird's inaction and her reasons for doing so are accepted and stand out without any question. The problem is that the Court is handicapped, and frankly there is nothing I can do since there is no claim on foot - See the case of Basil Maepuhi and Others V Marovo Development Company Limited and Another[1]. In the above case, the issue of no claim on foot is a major reason among others, which render application for injunction refused.

24. The Claimant may have locus standi as person with interest and beneficiary but despite his objection to commercial logging and Form 1 application failed to attend the timber rights hearing and be heard. He also failed to appeal against the determination by the Western Provincial Executive. Later, after almost two years instituted this case without a claim. Technically the Claimant has no locus standi to bring this claim even to reinstate it. He had sat on his rights to appeal and that opportunity has gone.

25. Perhaps the way forward is for the Claimant, if so wish, to file a new proceeding with a new claim.

26. In all that, I say I hereby make the following orders.

Orders:
1. Refuse to set aside the striking out order by the Registrar of the High Court on 10th March 2010.

2. Refuse to grant consequential orders in terms of injunctive relief sought in relief 2 (a) and (b) incidental to this hearing.

3. Cost incidental to this hearing be paid by the Claimant to the Defendants.

The Court.

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^[1] Unreported CC 294 of 2008 (28^th October 2008)