Teikagei v Soaika [2024] SBHC 60; HCSI-CC 132 of 2024 (10 June 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Teikagei v Soaika
Citation:
Date of decision:	10 June 2024
Parties:	Amos Teikagei v Rex Soaika
Date of hearing:	10 June 2024
Court file number(s):	132 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
On appeal from:
Order:	1) The Claim is struck out as required by the Unless Order dated 21st May 2024. 2) No order for costs.
Representation:	Mr Lency Takosi for the Claimant (No appearance) Mr Bitibule Kaehuna for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007, r1.3, r1.8
Cases cited:	Kuriti v Dovele Landowners Board of Trustees [2014] SBHC 95

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 132 of 2024

BETWEEN

AMOS TEIKAGEI
Claimant

AND:

REX SOAIKA
Defendant

Date of Hearing: 10 June 2024
Date of Ruling: 10 June 2024

Mr Lency Takosi for the Claimant (No appearance)
Mr Bitibule Kaehuna for the Defendant

RULING ON UNLESS ORDER

1. The Claimant is represented by counsel Lency Takosi of Mauri Lawyers. On 10^th April 2024, a claim in Category A was filed seeking declarations that the Claimant is the sole owner of Tehakamagoku customary land in Bellona pursuant to a Local Court decision. The claim also seeks orders to nullify a Will dated 1^st April 2021 made by Elijah Pongi regarding the transfer of ownership of the land to the Claimant’s younger brother and for restraining orders against the Defendant from exhibiting any forms of unlawful conducts against the Claimant and his family members.
2. On 19^th April 2024, Court granted ex parte interim orders for the protection and safety of the Claimant in the light of the information received that the Defendant effected threats and untoward acts against the Claimant and his family members. The matter was then adjourned to 20^th May 2024 at 1:30pm for mention. However, all matters listed to 20^th May 2024 before me were relisted to 21^st May 2024 due to Court’s official sitting to welcome the new President of the Court of Appeal of Solomon Islands that somehow took place on 20^th May 2024. An email with the Court’s list regarding the change of date from 20^th May to 21^st May 2024 for the mention of matters before me has been sent to all the parties.
3. On 21^st May 2024 at 1:30pm, when the matter was called, counsel Takosi did not appear. He did not send any correspondence to advise about his failure or nonattendance in Court. The Court was left without any appearance and assistance from counsel for the Claimant. This conduct is unacceptable and runs a foul to counsel’s legal duty to the Court to attend and assist the Court at all times. If counsel Takosi had appeared, the Court would set directions for the hearing of this matter by way of inter parte. The progression of this case was therefore delayed due to the conduct of counsel Takosi. Court on the same occasion then issued an Unless Order in the following terms:
   1. Unless the Claimant’s counsel pays costs of this proceeding to the Defendant on standard basis by 4^th June 2024, the claim will be struck out for noncompliance of the order.
   2. The matter was adjourned for mention on 10^th June 2024 at 1:30pm.
4. On 10^th June 2024 at 1:30pm, the matter was mentioned. Mr. Takosi again failed to appear in Court. No written correspondence ever received to explain about his failure to appear for these two consecutive occasions. Counsel Bitibule for the Defendant then submitted that Claimant’s counsel did not comply with the Unless Order. A copy of the Unless Order was already served on counsel Takosi. A Proof of Service to evidence the service will be filed by 12^th June 2024. Counsel undertook to file that proof of service. Counsel then submitted that the terms of the Unless Order should be self-executed.
5. Essentially, the Unless Order was issued to progress the matter forward with minimal delay as required by Rule 1.3 and 1.8 of the Solomon Islands Courts (Civil Procedure) Rules 2007. That is, for the parties to progress the matter by minimising or avoiding delays that would hamper or derail the quick progression of the matter to finality. Counsel Takosi, as a lawyer appearing in this proceeding should have known better that this is an order of the Court that must be fully complied with.
6. Now, should the order, which is a self-executing order, be enforced? Rule 23.4^[1] provides that where a party to a proceeding has deliberately or sustainedly failed to comply with an order made in the proceeding, the Court can exercise its power to either strike out the pleadings of the non-complying party, or extend the time for complying with the order, or give further directions, or make another order.
7. The power provided for under this Rule includes the power to make self-executing orders referred to an “Unless Order” in the event of non-compliance within a specified time (see: Kuriti v Dovele Landowners Board of Trustees^[2]). In this case, counsel Takosi failed his duty to attend to Court. He also failed in his duty to represent the Claimant diligently and proactively. His nonattendance on two consecutive appearances without informing the Court when this matter was called shows his ignorance of his legal duty as a lawyer representing a party to the proceeding in Court. This is contemptuous.
8. Since this is a self-executing order, the noncompliance of it must be enforced accordingly. That is, this entire proceeding is now being struck out.

Orders of the Court

1. The Claim is struck out as required by the Unless Order dated 21^st May 2024.
2. No order for costs.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007.
^[2] [2014] SBHC 95.