Ramodua v Saefafia [2015] SBHC 10; HCSI-CC 403 of 2012 (1 April 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

CIVIL CASE NO. 403 OF 2012

BETWEEN:

BARNABAS RAMODUA
Claimant

AND:

SAUL SAEFAFIA, OROMAE BOSOKURU
(Representing their late father, Barnabas Bosokuru, Deceased)
Defendants

Date of Hearing: 23rd March 2015
Date of Ruling: 1st April 2015

Mr Fakarii for the Claimant
Mr A Hou for the Defendants

RULING ON APPLICATION FOR REINSTATEMENT OF A STRUCK OUT CLAIM.

FAUKONA J: A claim in Category C was filed on 31st October, 2012. A defence was filed on 13th December, 2012. On 19th August, 2013, was a date for hearing of an application to strike out the claim. There was no Counsel representing the Claimant although notices were issued on 25th March 2013 to Counsels concerned, well in advance of the hearing. The Claim was therefore struck out accordingly on 19th August, 2013 for non-appearance by the Claimant or his Counsel.

2. The Claimant now comes to Court with an application filed on 6th September, 2013 to set aside the striking-out Orders and explained why the Counsel failed to appear on 19th August, 2013 to defend the application for striking out.

3. The issue is whether there are reliable excuses for the absence of the Claimant or his Counsel at the hearing on 19th August, 2013.

4. The Counsel for the Claimant submits by referring to the case of Douglas Poa & Other - v- AG[1] in which the Court stated, "in Court proceedings, parties either appear in person or by Counsel." The Counsel continues that Rule 17.55 states that the "Court does not automatically set aside an order because of absence and non-appearance of a party, but has to closely examine the reasons for absence." Counsel also refers to the case of Saru –v- Maelimani & Ors[2] and Kuriti & Ors –v- Dovele Land Owners Trust Board & Ors[3].

5. In this case, there is no dispute; both the Claimant and his Solicitor, Mr Rano, were absent from Court on 9th August, 2014, the date the Order Striking Out the claim was granted.

6. I have read the sworn statement deposed by Mr Rano, filed on 6th March, 2013 explaining reasons for his non-attendance. I noted the bulk of his explanation refers back to his firm and personal failure. I couldn't believe it took four months after taken over this case, still there was no notice of change of advocate filed. Other excuses pertaining to his oversight, change of email, no notice of hearing received, assumption of His Lordship's illness, and one Counsel manning the Office; are all unacceptable reasons and holds no merit. Counsels owe responsibility to their clients; they must be served with due diligence and honesty. People with grievances and dispute expect their legal representative stand on their behalf as their mouth piece in Court. It's a service endowed with commitment and not an opportunist. Counsels are expected to appear in Court to assist and not their Client's whose presence is needed only when required.

7. Counsel for the Claimant also submits that there is merit in the claim. The major issue in the claim is ownership of babalakona customary land. If I am to venture into examining the merit, I may be usurping the powers of a trial court to determine the issue. All that the evidence reveal is the Claimant's father purchased the land in 1950 and 1952 and of course, there are cases involved. The Defendants argued that the purchase transaction done in 1950 was done by their father. This assertion was supported by Court decisions as well.

8. In the light of the issue generally summarized in paragraph 7, it would be in the interest of justice that the Court must determine the issue to its fullest. Ending a case early without proper consideration and determining a very significant issue is not justifiable in this case.

9. It brings me to a point that I must adopt the precedent in the case of Saru -v- Maelimani that a client's case must not be affected by Counsels impropriety conduct resulting in striking Out.

10. With all that I have said, I must uphold the application.

Orders of the Court

1. Striking out Order on 19th August 2013 be set aside.
2. Cost in the cause.
   

THE COURT.

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^[1] 2011) SBHC 110; HC54 – CC 223 of 2011 (27 June 2011)
^[2] (2013) SBHC 165 – HC59 – CC269 of 2013 (6 September 2013)
^[3]Civil Case No. 101 of 2013