Vaekesa v Ririo Chiefs Committee [2014] SBHC 60; HCSI-CC 278 of 2005 (5 June 2014)

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

CIVIL CASE NO. 278 OF 2005

BETWEEN:

ROBERT VAEKESA
(Representing Qili Clan of Selevanga
Tribe, Choiseul Province)
Claimant

AND:

RIRIO CHIEFS COMMITTEE
First Defendant

AND:

ALICK QORASIAMA
(Representing Tingana Clan of Jau Tribe,
Choiseul Province).
Second Defendant

Date of Hearing: 7th May 2014
Date of Ruling: 5th June 2014

Mr G. Suri for the Claimant
Mr J. Keniapisia for the Second Defendant

RULING

Faukona J: This is an application to reinstate an application to set aside struck out order by the Deputy Register of High Court on 12th July 2010.

2. The Claimant filed a notice of motion on 28th October 2005. On 10th November 2005 obtained a default judgment. On 6th December 2005, the second Defendant filed an application to set aside default judgment. That application was struck out on 12th July 2010, by the Deputy Registrar of the High Court pursuant to Rule 9.72 (d) of the Court Rules. A copy of the striking out order was received by the second Defendant in 2012.

3. The argument advance by Mr. Keniapisia is that both Counsels and the Court are equally obligated to bear the blame for not doing enough. As a result the application was struck out.

4. The Court was blamed for not managing the file properly to progress the case. Further, the service of the striking out order was served on someone in Gizo. That perhaps contributed to late receipt of the order in 2012. It would be accepted that serving the order to a different location is an administrative error.

5. There are arguments as to which party is responsible to ensure a pending application progressed. In this case, the Claimant had obtained a default judgment and he was indeed sitting comfortable. The legal obligation therefore conferred up the second Defendant to challenge the making of the order. Realising what he ought to do, an application was filed to set aside the default judgment. It was his application and he was responsible to ensure the application is heard by the Court. Unfortunate for him the application was lying dormant for four years before it was finally struck out. He cannot turn around and blame others.

6. Now he comes back to Court equipped with an application to reinstate his application, which had been struck out. On the application, there was no quote of a particular Rule it relies on. In fact, there is no specific rule for reinstatement of terminated Proceedings. However with the assistance of Mr Suri, it would appear the proper Rule applies in the circumstance is R19.10. Has this authority indeed assisted the second Defendant? It gives power to the Court to review direction, order or act of the Registrar. However to invoke the power of the Court an application must be made 14 days after receipt of the striking out order. The order was made by the Registrar on 12th July 2010. The application for reinstatement was filed on 10th may 2013.

7. I noted the second Defendant received the orders in 2012, two years after it was made. No proper or actual date was known. If he be granted leniency that he received the orders on 31st December 2012, then last date to file application will be 15th January 2013. He failed to file any application on that date. He did on 10th May 2013, more than three months late.

8. With the reasons I have stated herein I must dismiss the application for reinstatement of struck out proceeding for want of prosecution.

Orders

1. Application for reinstatement of struck out proceeding dismissed.

2. Cost is paid to the Claimant.

The Court