Walakulu v Kauhusia [2022] SBHC 116; HCSI-CC 690 of 2021 (28 November 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Walakulu v Kauhusia
Citation:
Date of decision:	28 November 2022
Parties:	Solomon Walakulu v Peter Kauhusia, Attorney General.
Date of hearing:	5 July 2022
Court file number(s):	690 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Claim filed on 1 December 2021 is declared effectual pursuant to rule 1.17 2. The application to strike out the claim is refused. 3. The Claimant has two months from the date of this ruling to serve the claim on the First Defendant. 4. The service on the First Defendant may be effected by service on his counsel. 5. The Claimant is to pay the First Defendant’s costs of these applications within three months of this order. 6. There is no order for costs in respect of the Second or Third Defendants.
Representation:	Mr B Upwe for the Claimant Mr S Avukai for the First Defendant Mr Rula for the Second and third Defendant
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 690 of 2021

BETWEEN

SOLOMON WALAKULU
Claimant

AND:

PETER KAUHUSIA
First Defendant

AND:

ATTORNEY GENERAL.
(Representing the Premier of Malaita Province)
Second Defendant

AND:

ATTORNEY GENERAL
(Representing the Registrar General)
Third Defendant

Date of Hearing: 5 July 2022
Date of Decision: 28 November 2022

Mr B Upwe for the Claimant
Mr S Avukai for the First Defendant
Mr Rula for the Second and Third Defendant

Lawry; PJ

RULING

1. The claim filed in this matter concerns land in Afio in Malaita Province. The First Defendant had brought proceedings against the Claimant and against the Afio Guest Haus Business Centre in proceedings commenced in the Magistrates’ Court.
2. Those proceedings concerned the registration of land in the present proceedings with both the Claimant in these proceedings and the First Defendant in these proceedings claiming ownership.
3. On 29 October 2021 the presiding Magistrate in a written ruling adjourned the proceedings in that Court and ordered the Claimant in these proceedings to file a claim in the High Court within 30 days. The Claimant filed the claim on 1 December 2021. On 3 December 2021 the Magistrate ordered that as the claim had been filed in the High Court the proceedings in the Magistrates’ Court were discontinued.
4. The last week of November 2021 was a time of considerable disruption in Honiara with rioting, destruction of property and looting affecting both government and commercial activity in Honiara.
5. In January 2022 there was a lockdown in Solomon Islands followed by significant restriction of movement as Solomon Islands struggled with an outbreak of COVID-19.
6. The Claimant alleges that the restrictions on the freedom of movement prevented him from serving the claim within 3 months of it being filed. Rule 5.43 of the Solomon Islands Courts (Civil Procedure) Rules 2007 [“the Rules”] provide as follows:
   • “5.43 If a claim is not served within 3 months of the date endorsed by the registrar under rule 4.3:
   • (a) the claimant may apply to the Registrar to have the claim renewed within one month after the expiry of that period; and
   • (b) if the claimant does not do this, the claim ceases to be of any effect.
   • Where the Registrar agrees to renew a claim under this sub-rule the claim may be renewed for a further three months and the Registrar shall endorse the claim accordingly.”
7. The Claimant does not dispute that the claim was not served within the 3 month period prescribed by the Rules. In a sworn statement filed on 19 May 2022 he explains that the claim was filed as ordered by it was unable to be served because of the restrictions imposed by the government put in place in the extraordinary circumstances facing the country with the community outbreak of COVID-19. The Claimant also does not dispute that he did not seek an extension from the Registrar for the service of the claim.
8. This background has led to two applications being filed. The first, filed on 7 April 2022 is an application by the First Defendant to strike out the claim. The First Defendant also filed a sworn statement in support of that application. The second is an application by the Claimant to extend the time for serving the claim and for an order for substituted service. That was filed on 19 May 2022 together with the sworn statement of the Claimant referred to in the previous paragraph. With the consent of the parties the applications were heard together.
9. On 25 March 2022 counsel for the First Defendant wrote to counsel for the Claimant reminding him of the failure to serve the claim. On the same date counsel for the Claimant replied attaching a copy of the claim. The covering letter contained the following paragraph:
   • “Now that your client has instructed you to receive the claim on his behalf, so please find attached is by way of service on you the claim duly filed on 1/12/21 with the response form.”

The letter dated 25 March 2022, from counsel for the First Defendant did not advise that the First Defendant had instructed his legal representative to accept service on his behalf and no other evidence to that effect has been placed before the Court.

10. The application to extend time for serving the claim necessarily needs to be determined first. Counsel draws the Court’s attention to Rule 1.3 and Rule 1.17. These respectively provide as follows:
    • “1.3. The overriding objective of these rules is to enable the courts to deal with cases justly with minimum delay and expense.”
    • “1.17 If there has been a failure to comply with these rules or a direction of the court, the court may:
    • (a) set aside all or part of the proceeding; or
    • (b) set aside a step taken in the proceeding; or
    • (c) declare a document or a step taken to be ineffectual; or
    • (d) declare a document or a step taken to be effectual; or
    • (e) make another order that could be made under these rules; or
    • (f) make another order dealing with the proceeding generally that the court considers appropriate.”
11. The submission of counsel for the Claimant is that the claim is an important matter for the parties that needs to be determined. He submits there were reasons out of the control of the Claimant that prevented service from being effective such that the interests of justice require the Court to give effect to the overriding objective of the Rules to allow the parties dispute to be heard. For that to happen counsel submits that the Court has power to order that the time for serving the claim be extended and that the claim filed should be ordered to be served on the First Defendant by serving his counsel. There is much to be said to this submission. Counsel for the First Defendant however submits that the time for such applications has passed. He also submits that the Claimant is in breach of the order made by the Magistrate.
12. The 3 month period for serving the First Defendant commenced on 2 December 2021, the day following the claim being endorsed by the Registrar. Rule 26.1 of the Rules provides:
    • “26.1 In any judgment or order and in any document in any proceeding, unless the context or subject matter otherwise indicates or requires, 'month' means calendar month.”

It follows that the 3 month period for filing the claim expired on 2 March 2022. The Claimant had until 2 April 2022 to apply to the Registrar under rule 5.43(a) to have the 3 month period renewed. No such application was made. The result of this is that following rule 5.43(b) the claim ceased to be of any effect.

13. Rule 5.43 also deals with the application to strike out. If the claim is of no effect then there is nothing to strike out. A strict application of the Rules then would dispose of both applications. Both would need to be refused. That would leave the parties back where they started from. Both have claims that need to be dealt with. If both applications are refused then the Claimant or the First Defendant would then file a fresh claim as the dispute over the land in Afio has not gone away. It would therefore be inappropriate to refuse both applications and certainly it would not be in the spirit of rule 1.3.
14. Rule 1.17(d) gives the Court power to declare a document to be effectual. It follows that the Court has power to do this if a document would otherwise be ineffectual. The parties would not have found themselves in this situation had service been effected in December 2021 or if the Claimant had sought a renewal of the 3 month period from the Registrar and more significantly if counsel had co-operated and obtained instructions to accept service. It was in the interests of both parties to have the matter proceed to trial and the First Defendant had already engaged counsel to commence the proceedings that were discontinued in the Magistrates’ Court.

Rule 1.14 provides as follows:

“1.14 A court may in the interests of justice dispense with compliance, or full compliance, with any of these rules at any time.”

15. I am satisfied that this case is one of those where the Court must recognize the unique times faced in Solomon Islands when for much of the 3 month period following the filing of the claim period there were restrictions on the movement of persons within Solomon Islands. I am satisfied that it is in the interests of justice that the Court dispenses with the requirement to serve the claim within 3 months of filing the claim. The result is that there is a declaration that the claim remains effectual for a period of 2 months from the date of this ruling. I note that the First Defendant has instructed counsel on this matter. I therefore direct that service may be effected by service on counsel.
16. In spite of the challenges in effecting service there were clear steps the Claimant could and should have taken. The Claimant is therefore ordered to pay the First Defendant’s costs of these applications on the standard basis.

Orders

1. The Claim filed on 1 December 2021 is declared effectual pursuant to rule 1.17
2. The application to strike out the claim is refused.
3. The Claimant has two months from the date of this ruling to serve the claim on the First Defendant.
4. The service on the First Defendant may be effected by service on his counsel.
5. The Claimant is to pay the First Defendant’s costs of these applications within three months of this order.
6. There is no order for costs in respect of the Second or Third Defendants.

By the Court
Justice Lawry
Puisne Judge