Haiway International Ltd v Pinnacle Enterprises Ltd [2016] SBHC 88; HCSI-CC 458 of 2013 (6 June 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 458 of 2013

BETWEEN: HAIWAY INTERNATIONAL LIMITED Claimant

AND: PINNACLE ENTERPRISES LIMITED Defendant

Date of Hearing: 19^th April 2016

Date of Ruling: 6^th June 2016

Mrs M. Bird for the Claimant
Mr G. Suri for the Defendant

RULING

Faukona PJ: Before this Court are two applications, one by the Claimant and the other by the Defendant. The Claimant’s application is for default judgment, pursuant to Rule 9.17 (b) (i) of Solomon Islands Court (Civil Procedure) Rules 2007, hereinafter called the “Rules”, and was filed on 23^rd July 2014.

2.	The second application was filed by the Defendant on 5th September 2014 and was for further and better particulars and disclosures (Rules 5.2, 8.3, 11.2, 11.5, 11.17, 11.4).
3.	On 3rd December 2013, a claim in Category B was filed by the Claimant. Thereafter, it was served upon the Defendant. There is no proof of evidence of service, however, the Defendant do not dispute it had been served.
4.	On 4th December 2013 the Defendant filed and served a conditional response upon the former Solicitor of the Claimant, Mr Keniapisia.
5.	On 24th February 2014 Mr Keniapisia by his letter confirmed he had received the response but requested a replacement copy because he could not locate his copy.
6.	By a letter of 24th February 2014, the Solicitor for the Defendant requested Mr Keniapisia to have a copy of the business contract referred to in Claimant’s claim disclose.
7.	On 25th February 2014 Mr Keniapisia replied and provided the contract. However, the Defendant denies, it was the lender and was not approved by it, hence its execution was not authorised by it.
8.	The Defendant then filed and served request for further and better particulars on 28th February 2014. On the same date the Defendants Solicitor enquired with the Claimant’s Solicitor about the answers to the request for further and better particulars.
9.	Until 3rd September 2014 when the Defendant’s Counsel received a reply from the claimant’s new Solicitor refusing to provide further and better particulars on the basis that the request sought were evidence in nature.
10.	On 4th September 2013, on a motion day, Counsel for the Claimant informed the Court, she had filed an application for default judgment.
	The issue:
11.	The focal point of argument centred on the question whether the request for further and better particulars by the Defendant’s Counsel was in the nature of facts or evidence. If it was in the nature of evidence then the request must not be sustained and the application for default judgment takes precedent.
12.	Law on further and better particulars:
	Rule 5.2 states, that the purpose of the statement of case is to:
	(a).			Set out the facts about what happened between the parties as each party sees them; and
	(b).			Show the areas where the parties agree; and
	(c).			Show the areas where the parties disagree (“called the issues between the parties”)
13.	Rule 5.3 states;
	“Each statement of case must:
	(a).			Be as brief as the nature of the case permits, and
	(b).			Set out the relevant facts on which the parties relies, but no the evidence to prove them.
14.	On the outset, the question to pose is, is the requests for further and better particulars by the Defendant in the nature of evidence?
15.	Rule 5.3(b) clearly states that statement of case must set out relevant facts the parties relies on but not the evidence to prove them.
16.	The Rules and the cases I will refer to discuss the purpose and the function of pleading and the general rule that guides effective pleadings. In the case of Roni v Ross Mining,[1] the Court made equal reference to the case of Goh (Trading as Goh & Partners) V LCL enterprises Ltd[2] where His Lordship, Awich J stated;
		“The purpose of pleading, for which further particulars may be requested and obtained, is to inform the other party and the Court of what one intends to prove either to establish the claim or defence. Pleading are brief statements of facts not of the evidence. They are not statements outlining the evidence that one intends to adduce, although if one relies on document, the document must be produced if requested. They are not detail document of the events of the case”.
17.	His Lordship continued by stating:
		“The function of pleading in essence is to ensure that the matter to be submitted to the Court for decision should be clearly ascertained. In exercising its discretion this will enable it find just solution to the dispute brought to it”
18.	In the Odgers’ Principles of Pleading and Practice in Civil Actions in the High court of Justice,[3] the author stated at page 106;
		“It is unnecessary to tell the other side how it is proposed to prove that fact; such matters are merely evidence, fact aprobantia, facts means of which one proves the fact in issue. Such facts will be relevant at trial, but they are not material facts for pleading purpose”.
19.	The author continued at page 113[4],
		“Material facts must be alleged with certainty. The object of pleadings is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision. “...The only general rule that can be laid is this that the party pleading must use such particularity as will make it clear to the court and to his opponent what is the precise question which he desires to raise.”
20.	In the case of Vlymen V Kwaiga,[5] Justice Apaniai stated;
		“The general rule if the party fails to plead his case with sufficient detail, his opponent is entitled to request further and better particulars of the claim. The object of obtaining further and better particulars is to enable the party requesting them know what case he has to meet at trial, and to save unnecessary expenses and avoid allowing parties to be taken by surprises. The request must be confined to the fact, not evidence.”
21.	Other cases that supports the rule in pleading are South Pacific Oil V GRP & Associates Ltd[6] and R V Associated Northern Collieries[7]
22.	All but the case of Wlymen, the Court had described in a precise manner that an opponent is entitled to request further and better particulars of the claim. Such request is expected after the claim was served provided it contains facts and not evidence. In any event, such request can be necessary before filing of a defence. The argument that the request in this case was premature and untimely is an absolutely misconception of the law. Based on the law, I hold the view that when further and better particulars are requested of the claim, by legitimate expectation, that should be provided in good time so that a defence can be filed within time as prescribed by the Rules. Should the Claimant prolonged provision, and the time has elapsed and no defence was filed, the Claimant, in my view cannot file application for default judgment. He has to comply with the request first.
23.	The purpose of pleading for which further particulars are requested is to inform the party of what one intends to prove to establish the clam or defence. And to ensure the matter to be submitted to Court for decision should be well ascertained. In the case of Tropical Resources Development Co. Ltd V Tropical Forestry Ltd,[8] which Kabui J said;
		“The Court will not sanction an attempt to deliver interrogatories under the guise of seeking particulars. (See page 461 of the Annual Practice 1961, Volume 1) to make them appear is particulars sought is misleading”
24.	I have taken note of the Court’s comment in paragraph 22 above. Likewise, it is equally significant to consider in a corresponding situation when appraising the actual impetus of the request for further and better particulars.
25.	On the request for business contract or arrangement to be disclosed, there was no business contract traversed neither a Chinese version of the contract was produced, as an alternative. There was nothing at all, and nothing can be located or even attached to any sworn statement filed in Court.
26.	Request for production of a business contract is not a request in the nature of evidence. The Defendant is entitled to a copy of the contract. It is the contract upon which the claim is founded. Without it, the claim cannot be ascertained. A simple action of request disclosing a copy of the business contract to the Defendant will resolve request one (1).
27.	In relation to the second request in paragraph 2.1 (a) for further and better particulars, in connection with the amount of $2,169,588.00 pleaded in paragraphs 7, 9 and 10 of the statement of case. I noted the first part contain request for names of persons be supplied, who had given those amount to the Claimant and whether they have any relationship with the Defendant. It is a simple request and did not tantamount to request for evidence. The second part of the question is slightly misconceived. Perhaps because how it was constructed in English language. However, the rationale, and perhaps the proper use of the request is merely if there was any receipt issued for the monies received. The request for particulars is not in the nature of evidence but a single and straight forward request for documentation.
28.	Paragraph 2.1 (b) of the request is for names of persons who received various amounts be given and whether they have relationship to the Claimant. Another of a simple request, which do not constitute request for evidence at all.
29.	Request in paragraph 2.1 (c) is based or whether the amount of $2,169,588.00 inclusive of the monies $598,000.00 and $95,000.00 lent by Mr Huan Szetu (alias, John Szetu), the Director and shareholder of Defendant Company to Fung Chi of the Claimant. The answer expected by such request can be either yes or no. There is no request in the nature of evidence.
30.	Paragraph 2.1 (d) is a supplementary request emerged from previous request. The particular request is whether the two above amounts were not included in the $2,169,588.00. On the first part, the answer expected is either yes or no. On the second part seeks explanation why those amounts were not included in schedule 2 of the claim. My appraisal of the request is somewhat in the nature of evidence. Any explanation sought of something not done, is a matter to be cross examined at trial. Any answer expected, of course must expectedly contain evidence. I rule the second part of this paragraph be annulled.
31	In regards to request in paragraph 2.1 (e), whether the two amounts had been settled, the answer expected is either yes or no. On the first part there was no request in the nature of evidence. On the second part, it was a request for evidence. To sought to explain why the amounts were not settled, is venturing to obtain evidence. I must therefore annul the second apart of the request.
32.	On paragraph 3, there were three requests for further and better particulars. The first one is state the name of the bank account which those monies in schedule 2 of the claim paid into. The answer expected is what kind of bank account. It is a simple request which in my opinion, not in the nature of evidence.
33.	The second request comprised the name of bank account the amount of $730,000.00 paid into, the date of deposit and a deposit slip to indicate. The request for particulars expected to achieve very simple answers; in terms of bank account name, date of deposit and a copy of deposit slip. The deposit slip may appear as proof in evidence. However, it is a necessary document that entails the Claimant’s case, which the Defendant might to know. As such the documentation ought to be traversed.
34.	The third request comprise of certain terms as “state how and when”, and “state the reason”. Use of those catchy phrases entail intention to upheave evidence to proof that $598,500.00 and $95,000.00 had been settled or paid. Those are request for evidence and ought not to be included as request for further and better particulars. The wards “states, how and when”, needs explanation. Time may not be a problem but how it requires explanation, may involve various ways which money can be paid. To entertain such is indulging and encouraging a party to go in depth of providing evidence as to how the money was paid. It can take various modes. The truth of it can be released when a deposit is cross examined in a trial. Therefore, the request is in the nature evidence.
35.	In conclusion, I have decided in favour of majority of request for further and better particulars are provided. Refusal to provide, when requested, and instead filed an application for default judgment is substituting the law within a self-imposed process. That must not be allowed to sustain. The law and rules of the Court must be given priority to take precedent. Having decided so, the application for default Judgment be dismissed and application for further and better particulars prevail with costs.
	Orders:
	1.		Application for default judgment dismissed.
	2.		Applications for request for further and better particulars uphold.
	3.		That the Claimant provide answers to the balance of request for further and better particulars within two weeks from the date this ruling is delivered.
	4.		Cost of this hearing is awarded to the Defendant.
	The Court.

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^[1] (1997) SBHC; HC-CC 060 of 1997
^[2] (1997) SBHC 20; Civil Case No. 138 of 1995.
^[3] 22^nd Edition by D.B Casson and I.H Dennis, Page 106.
^[4] Ibid (3)
^[5] (2014) SBHC 93; HCSI–CC 151 of 2013 (30June 2014).
^[6] (2012) SBHC; HCSI – CC 223 of 2011 (27 February 2012)
^[7] (1910) HC A 61; (1910) 11 CRR 738 (7 November 1910
^[8] (2004) SBHC 106, HC-CC No. 366 of 2004 (22 November 2004)