Quity v Majala [2024] SBHC 102; HCSI-CC 443 of 2023 (19 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Quity v Majala
Citation:
Date of decision:	19 August 2024
Parties:	LanFrank Quity, Erick Bako Junior, Ellison Riugita and Frank Welchman v Noel Majala, Mathew Friro, Issac Legu, Johnson Rohi Reubenson Rava & Fred Kolotu, Valepelo Development Company Limited
Date of hearing:	6 August 2024
Court file number(s):	443 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Talasasa; PJ
On appeal from:
Order:	1. The application for non-compliance of unless order is refused; 2. Costs in the Cause
Representation:	Iroga J for the Claimant Ipo M for the First and Second Defendant
Catchwords:	Unless Order-non-compliance-strike out of pleading or claim-discretion of Judge
Words and phrases:
Legislation cited:	Solomon Islands Court (Civil Procedure) Rule 2007, r 1.14, 23.4, 9.14
Cases cited:	Solomon Security Service Ltd v AIPF (SI) Ltd [2022] SBCA 25, Mega Corporation Ltd v Lotinta [2003] SBCA 8 Samuels v Linzi Dresses [1979] EWCA Civil 1128-3

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 443 of 2023

BETWEEN

LANDFRANK QUITY, ERICK BAKO JUNIOR, ELLISON RIUGITA AND FRANK WELCHMAN
Claimants

AND:

NOEL MAJALA, MATHEW FRIRO, ISSAC LEGU, JOHNSON ROHI REUBENSON RAVA & FRED KOLOTU
First Defendant

AND:

VALEPELO DEVELOPMENT COMPANY LIMITED
Second Defendant

Date of Hearing: 6 August 2024
Date of Ruling: 19 August 2024

Iroga J for the Claimant
Ipo M for the First and Second Defendant

RULING NON-COMPLIANCE OF UNLESS ORDER

Introduction

1. On 29 April 2024, the Claimants were directed to file and serve their reply to the defence by 13 May 2024. In addition to that, other directions effectively to progress the matter to trial were also made.
2. These Directions were perfected, signed and sealed on 6 May 2024.
3. The matter was then adjourned for further Mention to Monday 10 June 2024 at 9:30am.

Chronology of events

10 June 2024 to 25 June 2024

4. On Monday 10 June 2024 when the matter was called for Mention there was no appearance by Counsel for the Claimants. No explanation for non-appearance was given.
5. Counsel Ipo for the Defendants raised that his clients have expressed grave concerns about the delay in progressing this matter citing the timber right process has been complied with and there shouldn’t be any further delay with this matter.
6. Upon hearing Counsel Ipo, it was directed that the Claimants were given 14 days to comply with the orders made on 29 April 2024 failing which the claim would be struck out.
7. Costs were ordered against the Claimants in the meantime for non-compliance.
8. The matter was adjourned to 25 June 2024 at 9:30am for mention.
9. These directions were perfected, signed and sealed on 18 June 2024. 22 July 2024
10. The matter was called for Mention on 22 July 2024 at 9:30am. On 22 July 2024 (almost a month after the date the matter was earlier fixed for), both Counsels Ipo and Iroga were in attendance.
11. Counsel Ipo informed court that the Direction Orders of the 10 June which were perfected on 18 June were served on Counsel for the Claimants on 20 June 2024.
12. The 14 days given for compliance were to expire on 24 June.
13. If as a consolation, given that the Claimants’ Counsel was served on 20 June, one would have expected Counsel to file by the 4 July 2024. As a matter of fact, and as it had transpired, by 4 July 2024 the Claimants have not complied with the orders.
14. The Claimants finally filed on 11 July 2024. In other words, compliance was affected some 7 days after the 4 July or 21 days after Counsel had been served with the orders to file within 14 days.

Unless Order – strike out

15. Counsel Ipo raised the objection that since the orders of the 10 June 2024 constituted an ‘Unless Order,’ the court should strike out the Claim. It was to expire on 24 June 2024. There was no compliance by 24 June.
16. Whereas Counsel Iroga pointed out that the correct computation of time would run from the date of service. As Counsel was served on 20 June the 14 days would expire by 4 July. He submitted that he filed on 11 July as he had been unwell and that he usually received instructions from his client Chief Quity. He found difficulties at times in dealing with Chief Quity as most of the time he was in the village. He is not in very good health – sick with diabetes – found difficulty in compliance. Justice should be applied given the circumstances.
17. On that token, Counsel Iroga relied on Rule 1.14 that allows for consideration of justice in such circumstances.
    • Rule 1.14 of the Rules:
    • “Court may dispense with rules (Solomon Islands Courts (Civil Procedure) Rules 2007
      • 1.14 A court may in the interests of justice dispense with compliance, or full compliance, with any of these rules at any time.
      • 1.15 If, in a proceeding, the court gives a direction or makes an order that is inconsistent with any of these rules, the direction or order of the court prevails in that proceeding.
18. The matter was adjourned for hearing on 29 July 2024.
19. On 29 July 2024, Counsels sought further time to fully canvass Rule 23.4 and to prepare their submission with supporting authorities; including as in light of Rule 9.14
    • 9.13 A defendant in a proceeding may apply to the court for an order dismissing the proceeding for want of prosecution if the claimant:
    • (a) is required to take a step in the proceeding required by these rules, or to comply with an order of the court, not later than the end of a particular time; and
    • (b) does not do what is required before the end of that time.
    • Note Chapter 7 (Interlocutory Applications) applies to an application for an order under this rule.
    • 9.14 The court may dismiss the proceeding or make any other order it considers appropriate.
    • 23.4 In cases of deliberate or sustained failure the court may make any one or more of the following orders including an order that is self executing in the event of non-compliance within a specified time:
    • (a) strike out the pleadings of the non-complying party;
    • (b) extend the time for complying with the order;
    • (c) give directions;
    • (d) make another order.
20. By Directions of the 29 July 2024, the matter was adjourned to 6^th August, 2024 at 10am for hearing. Counsels were to provide court with relevant materials including case authorities relative to the position of unless orders in Solomon Islands or the position in general (as in other jurisdictions) together with written submissions in support for their respective arguments. Costs in the cause.

Submissions by Counsels

21. Counsel for the Claimant in his submission posed the correct question, for that is what the court sought submissions on,
    • ‘What is an unless order?’
22. In his submissions, Counsel Iroga for the Claimant submitted that an ‘unless order’ is an order of the court instructing a party to comply with directions specified in the order and also stating the consequences of noncompliance with the order within a specified time. Any sanction for non-compliance attaching to such an order must be proportionate to the request being ordered.”
23. Counsel Iroga referred this court to the case of Mega Corporation Ltd v Lotinta [2003] SBCA 8; CA-CAC 006 of 2003 (14 July 2003).
24. I find the discussion in this case helpful in understanding what an unless order is.
    • “The view by the English Courts however has undergone a dramatic change since about 1980 when the Court of Appeal in Samuels v. Linzi Dresses[15] made plain that the decision in Whistler v. Hancock should no longer be followed and went on to state what the law should now be regarding an “unless order”:
    • “Today the position is very different. There are many decisions of this court and of course there is the decision of the House of Lords in Birkett v. James, as to the principles which should be applied in striking out claims for want of prosecution. One principle now clearly established is that the court will not, generally speaking, strike out a claim for want of prosecution where a plaintiff is free to issue a fresh writ. In the instant case the defendants would be free, if their counterclaim were struck out, to issue a fresh writ covering the matters raised by the counterclaim. There would be no issue of estoppel or res judicata.
    • Accordingly, it seems to me quite wrong that today a claim should be struck out simply because of these decisions now a century old. I think the judge in the present case, and Judge Fay in the earlier case to which I have referred and, if I may say so, Lord Denning MR in the Villerwest case, were all correct in taking the view that Whistler v. Hancock should no longer be followed.
    • To say that there is jurisdiction to extend the time where an “unless” order has been made and not complied with is not to suggest, let this be absolutely plain, that relief should be automatically granted to parties who have failed to comply with the orders of the court otherwise than on stringent terms either as to payment of costs or as to bringing money into court or the like. Orders as to time, and in particular as to the time for the delivery of pleadings and particulars, are made not to be ignored but to be complied with. In the present case, long before the problem caused by the 1978 Christmas holidays arose, there had been serious delay in complying with various orders, and the defendants were at mercy when they came before Judge Hawser. They had not done that which they ought to have done. They were not, save perhaps at the very last moment, deserving of any sympathy. But at the last moment they had made a real effort to comply with the order and they were perhaps unlucky that their efforts did not meet with success.
    • In my judgment, therefore, the law today is that court has power to extend the time where an “unless” order has been made but not been complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not.”

The other law lords Lawton L.J. and Sir Stanley Rees agreed with the judgment of Roskill L.J. Lawton L.J. went further to point out that the view held in Whistler v. Hancock regarding the effect of an “unless order” as bringing an action to an end was no longer appropriate. He took the view that contrary to what had been said, the litigation was not dead but very much alive; it was still to continue. Note, Lord Denning in the Villerwest Case (ibid) had suggested that even if the case had ceased to exist – was dead or defunct, “the court always has power to bring it to life again, by extending the time”.

In the case of Bacal Contracting Ltd v. Modern Engineering (Bristol) Ltd[16] the approach taken in Samuels v. Linzi Dresses (ibid) was followed. Since then later cases have re-affirmed the approach taken by the Court of Appeal in Samuels v. Linzi Dresses. In Re Jokai Tea Holdings Ltd[17] it was held where “the court has to decide what are the consequences of a failure to comply with an “unless order”, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is found. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.” (see also Grand Metropolitan Nominee (No. 2) Co. Ltd v. Evans[18] in which the approach above was affirmed and applied).”

25. Whilst I find the case interesting in as far as it relates to the discussion of what ‘an unless order,’ is, the test to apply and whether it constitutes finality or not, it was a case decided prior to the current rules.
26. The current rules were made in 2007.
27. Counsel Iroga submitted that Rule 17.13 provides that any order required to be served, shall be served within 7 days of it being perfected or within the time set by court or as prescribed by the rules.
28. I understand Counsel’s submissions on this point relates to computing of time for compliance. As the order was perfected on 18 June 2024 and was served on 20 June 2024, when computing the time as prescribed in the order, the due date should either be 4 or 5 July 2024. By filing on 11 July 2024, he was 7 or 8 days late.
29. Counsel Iroga asked Court to consider whether an unless order applies or can be fittingly applied in this case.
30. Counsel says that despite admitting the lateness of filing and serving of the document which is a sworn statement of list of documents the lateness is justified as the deponent from who instructions were obtained was away in Buala at the material time. Further the Deponent was ill at the material time. It was further submitted that the actions of the Claimants is not persistent and that they are not serial offenders against the orders of the court.
31. Counsel Iroga asked Court to again consider Rule 1.14 in determining the consequences for non-compliance.
    • “1.14 A court may in the interests of justice dispense with compliance, or full compliance, with any of these rules at any time.”
32. The overarching consideration is justice in the circumstances of this case in light of the explanations given, says Counsel Iroga.
33. On the other hand, Counsel Ipo submitted that Rule 23.4 is the basis for the application and that the court should strike out the Claim for failing to comply with an unless order.
34. The non-compliance was systemic and deliberate; it concerns his clients so gravely, says Counsel Ipo.
35. Counsel Ipo found his footing from the case of Solomon Security Service Ltd v AIPF (SI) Ltd [2022] SBCA 25; SICOA-CAC 30 of 2020 (18 November 2022)
    • At paragraph 20, “The entry of judgment is as a consequence of the failure of the appellants to comply with an “unless order” and the consequential orders made by the Judge on 19 November 2020. As a consequence, he was entitled to strike out the defence and enter judgment in favour of the respondent. He was also clearly entitled to enter judgment in the sum claimed and to make the provision for interest he did. In the face of the appellants’ contumelious behaviour, it is unsurprising that he awarded costs on an indemnity basis.”
    • At paragraph 22, “Rule 23(4) could be described as a “disciplinary rule” empowering the court to have wide ranging discretion in making orders against recalcitrant litigants who clog the court system. We consider if an “unless order” is made judges should, wherever possible, make them self-executory as provided for in Rule 23 (4). Such orders are generally expressed in terms, such as: “Unless the defendant “A” files its sworn statements in support of the defence by......... (date) the defence is struck out, and there will be leave to the claimant to enter judgment in the sum of “X Dollars” together with interest and costs.” The judge making the order needs to exercise their discretion as to interest and the level of costs. Although normally the latter would be on an indemnity basis. Such an order means the claimant can have the order perfected and sealed without the necessity of another court hearing...”

Determination

36. I thank Counsels for their submissions. They have assisted me greatly.
37. I understand the reasons and circumstances given by Counsel Iroga. If only these were communicated prior to the 4 or 5 July 2024.
38. Whilst I have confidence in Counsel Iroga’s ability to represent the interests of his clients well especially in this case, the same I must say with regard to Counsel Ipo, I must consider the circumstances relative to the issue before me.
39. In the case referred to by both Counsels, the Court of Appeal states:
    • At paragraph 22,
    • We consider if an “unless order” is made judges should, wherever possible, make them self-executory as provided for in Rule 23 (4). Such orders are generally expressed in terms, such as: “Unless the defendant “A” files its sworn statements in support of the defence by......... (date) the defence is struck out, and there will be leave to the claimant to enter judgment in the sum of “X Dollars” together with interest and costs.” The judge making the order needs to exercise their discretion as to interest and the level of costs. Although normally the latter would be on an indemnity basis. Such an order means the claimant can have the order perfected and sealed without the necessity of another court hearing...”
40. The Direction Orders of 10 June 2024, spells out as follows:
    • “1. The Claimants are given 14 days to comply with the orders of the Court made on 29 April 2024 failing which the claim being struck out.
    • 2. Costs against the claimants for non-compliance.
    • 3. The matter is adjourned to 25 June 2024 at 9:30am for Mention.”
41. I accept that the Direction Orders 10 June 2024 was made in the manner outlined by the Court of Appeal. It constitutes an unless order. It is self-executory. It sets out succinctly what needs to be done by a timeline and the consequences of failing that which is ordered to be done by the given timeline.
42. In my view, the non-compliance by the Claimants in this case is borderline. I say so because of the circumstances of the non-compliance of the unless order referred to.
43. Given the nature of the case and in light of the lateness of filing as directed, this is a matter that I should exercise the discretion to continue the proceedings.
44. As emphasized in the case referred to above, the consideration of whether an unless order should automatically end up with a strike out of the pleadings or a claim, revolves around a judge’s exercise of discretion.
    • “In my judgment, therefore, the law today is that court has power to extend the time where an “unless” order has been made but not been complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not.”^[1]
45. I note, seriously for Counsel Iroga’s attention what the Court of Appeal in Solomon Security Service Ltd v AIPF (SI) Ltd states at paragraph 22:
    • “Rule 23(4) could be described as a “disciplinary rule” empowering the court to have wide ranging discretion in making orders against recalcitrant litigants who clog the court system.”
46. It is noted that the court’s discretion under Rule 23.4 is wide ranging. Whilst it is concerning that recalcitrant litigants do not clog the system; in the circumstances of this matter, I do not view the Claimants or Counsel Iroga as uncooperative or obstinately disobedient.
47. Whilst I refuse the application to strike out the claim for non-compliance of the unless order, I must warn the Claimant that future non-compliance will not be tolerated.

ORDERS

1. The application for non-compliance of unless order is refused;
2. Costs in the Cause

THE COURT
The Hon. Justice Ronald Bei Talasasa Jr
PUISNE JUDGE

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^[1] Referred to in Mega Corporation Ltd v Lotinta [2003] SBCA 8; CA-CAC 006 of 2003 (14 July 2003)