Tsuki v Koga [2016] SBHC 15; HCSI-CC 33 of 2015 (29 January 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 33 of 2015

BETWEEN:

MARTIN TSUKI & ORS
Claimants

AND:

HEINSZ KOGA & ORS
(Representing the members of the tribes
Of Garavu (big line)
1st Defendant

AND:

CHARLES TANI & ORS
(Representatives of Manukiki Tribe (small line)
2nd Defendant

AND:

BENJAMIN SUILUA, EZEKIEL KEIRUA
& ORS - (Representing the coastal land-
owners covering Haliatu/Malagheti
Communities)
3rd Defendant

Date of Hearing: 20th January 2016
Date of Ruling: 29th January 2016

Mr A. Hou for the Claimants (No Appearance)
Mr D. Marahare for the 1st, 2nd and 3rd Defendants

KENIAPISIA, PJ:

RULING

1. The Court is this afternoon, dealing with an application for leave to appeal out of time, against part of the judgment, of the Magistrate Court filed 31/10/2014; in Land Acquisition Appeal Case No. 36/2012.
2. The said application is not a "clearly stand alone" application. Therefore you could not locate any application on file. The said application is to be deduced from a Category C claim, filed by the Claimants on 9/02/15, together with a supporting sworn statement (ss). An additional supporting ss by Lawyer Togamae was also filed on 20/05/15. I will not comment on the procedural or legal deficiencies or otherwise in the filing of court documents to meet instructions that the claimants gave to their solicitor/advocate.
3. I am concentrating more on the reasons for my decision to strike out the said application for "want of prosecution". I made this ruling verbally after hearing Counsel Marahare and said, I will give reasons later. I do so now. Counsel Hou of ANH Lawyers, for the applicant did not show up to argue his client's application.
4. I first set out the following chronology of the case:-
   • (1) Claimants filed a Category C claim on 9/02/15. Martin Tsuki filed supporting ss the same day. Lawyer Togamae filed an additional supporting ss on 20/05/2015.
   • (2) First, Second and Third Respondents through their Lawyer Counsel Marahare filed "Notice of Intention to Respond" on 3/03/2015. Then a defence plus supporting ss were filed only on 20/01/2016.
   • (3) Court record or file shows that the last direction order by Maina J, were made on 28/05/2015. The said order referred the claimants' application to the Registrar for setting of a hearing date.
   • (4) So on 14/12/2015; Registrar issued a Notice of Hearing.
   • (5) As usual, the Cause List for week commencing 18/01/2016, was sent out on Friday, 15/01/2016.
   • (6) The application came before me this afternoon. We waited for some 5 or 10 minutes for Counsel Hou to attend. Court assistant called Mr. Hou's mobile numbers, but power off. And so Court proceeded in his absence.
5. From the chronology above, Counsel Hou had Notice of his pending application on or around 14/12/15. I note that Counsel Hou was in Honiara, around that period. He appeared before me on 17/12/15, in a criminal case CRC: 150/2015, in an urgent application to vary bail conditions. The Court was opened throughout Christmas vacation for 2 hours each day. And so Counsel should have checked his pigeon hole daily by then. The legal year opened on 18/01/2016. All Lawyers were made aware of this, as normal last year. Counsel Hou's application was pending since 28/05/2015. He should have taken extra care to check with the Registrar regularly. But yet he failed to appear in Court. The Court is frequently criticised for delay in progressing cases. This time, the lawyers should be criticised for the delay.
6. The next pertinent question, I consider is whether the circumstances justified struck out for want of prosecution.
7. Take any standard Law Dictionary and the definition of want of prosecution would entail - application to dismiss a lawsuit due to: inordinate delay; that the inordinate delay is inexcusable. As a rule until a credible excuse is made out, the natural inference would be that it is inexcusable and that the defendants are likely to be seriously prejudiced by the delay.
8. I am satisfied that when the applicant does not appear in Court to argue his/her case, it amounts to inordinate delay. That inordinate delay is inexcusable; to the extent that the lawyer's office did not, give an explanation for non-appearance today. It is ordinate delay for one's application to be listed for hearing and yet the applicant in person or through legal representative failed to appear in Court. Far worst, no explanation was given for non-appearance, even when the lawyer's office ought to have received notice of today's hearing, as noted in the chronology above.
9. When there is inordinate delay, two presumptions are normally made in favour of the defendant. First, the delay is inexcusable and second, that a rebuttable presumption of prejudice arises in favour of the defendant. These two presumptions are not rebutted, because Counsel for the Applicant was not in Court today.
10. The circumstances of this case warrant dismissal of this application because the applicant is not in Court. I repeat, when you apply and your application is listed and you do not turn up in Court, it is inordinate delay. The Court struggles to list cases. When cases are listed, the person that must show face with urgency is the applicant. In this case, the Court waited for 10 minutes and Counsel Hou did not turn up.
11. The orders of the Court are:
    

The application for leave to appeal out of time contained in Category C Claim filed on behalf of the Claimants on 9th February 2015, is struck out for want of prosecution and parties to meet their own costs.

THE COURT

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JOHN A. KENIAPISIA
PUISNE JUDGE