Pegoa v Bosa [2015] SBHC 72; HCSI-CC 88 of 2014 (25 August 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 88 of 2014

BETWEEN:

ENOCK PEGOA
Claimant

AND:

MICHAEL BOSA, SARAH MODAEA & JOY VOTA
(Representing themselves and their families)
First Defendant

AND:

ATTORNEY-GENERAL
(On behalf of the Commissioner of Land and the Registrar of Titles)
Second Defendant

Hearing Date: 25th August 2015
Date of Ruling: 25th August 2015

Mr. L. Kwana for the first Defendant
Mr. E. Kii for the Second Defendant
No one for the Claimant (absent without explanation)

RULING

Faukona PJ: This application is primarily to strike out the application for default judgment, on the ground of want of prosecution pursuant to Rule 9.13. This hearing supposed to be for trial today. Unfortunately the Counsel for the Claimant did not appear without any explanation.

2. On 4th August 2015, in the presence of all Counsels, the Court set for today as the date for hearing of the application for default judgment. Following the adjournment, the High Court registry issued notices to all concern Counsels on 4th August 2015 to appear in Court today for the hearing.

3. On today's hearing Counsel for the Claimant failed to appear to prosecute the application, however, two defence Counsels did appear. Mr Kwana then immediately by oral application applies to strike out the application for default judgment. His reasons are being that the Counsel for the Claimant failed to appear in Court to prosecute his client's application. Secondly, narrated that his client could not able to file defence in time because he could not able to secure a Solicitor to do so on his behalf. The reasons are provided in the sworn statement of Michael Bosa filed on 19th June 2014. Eventually a defence was filed on 11th June 2014. Thirdly, the claim raised issues of fraud or mistake. The Claimant cannot obtain judgment in default because the first Defendant has a viable defence.

4. The Counsel advocate for the Attorney-General submits that they received the claim on 25th March 2014. On 21st May 2015 they filed a response in which they acknowledged receipt of the claim and will file defence within 28th days. There was no defence filed until first motion day on 12th June 2014 in which all Counsels agreed that there were no direct allegations against the Attorney-General, therefore it be excused from filing a defence and from attending further Court proceedings. No objection was raised by the Claimant's Counsel, therefore the Court ordered accordingly.

5. I noted from Court file that this case was set for hearing on 4th August 2015. On that date Mr Lidimani for the Claimant arrived quite late. However, after submissions the case was adjourned for 25th August for 1 hour hearing. On 25th August 2015 (today) the Counsel for the Claimant did not appear in Court.

6. This is a case where the Counsel for the Claimant was well informed of the hearing date (25th August 2015). Notices were issued in good time by the Court. The Counsel chooses not to appear to prosecute his Client's application. It would appear the counsel may perhaps not interested to pursue the case. The attitude was not a presumption but a reflection of reality. On 4th August the Counsel was very late in attending. Again today the same Counsel absolutely failed to attend altogether. The Counsel also failed to inform other Counsels or the Court of his engagements or commitments formally that he would not able to attend. The attitude shown is lack of respect and courtesy to the Court. A Counsel who fails to do is expected a decision against him and his client.

7. I accepted the reasons the Counsels for the first Defendant and the second Defendant submits in Court pertaining their failure to file defence in time. Their explanations warrant some inclination to make orders in their favour.

8. I must therefore strike out and dismissed the application for default judgment for want of prosecution with costs.

Orders:

1. Application for default judgment dismissed for want of prosecution.

2. Costs is to be paid to the Defendants by the Claimant.

The Court