Sesemu v Gulatatae Shipping Enterprises Ltd [2024] SBMC 10; Civil Case 158 of 2023 (5 July 2024)

IN THE CENTRAL MAGISTRATE COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case 158/2023

Between:

JOHN SESEMU

And:
GULATATAE SHIPPING ENTERPRISES LTD

Date of Hearing: 7 June 2024
Date of Ruling: 5 July 2024

Non-Appearance for the Claimant
Mr. Rose. G for the Respondent

RULING ON THE UNLESS ORDER

1. The claimant filed a category A claim on 25 October 2023. Upon receiving the claim, the respondent filed his defence on 18 March 2024. A reply was filed by the claimant on 26 March 2024 however, it was not served on the respondent. Counsel for the respondent appeared in court on several occasions and request the claimant to serve him with the reply. The court too made several directions for the claimant to serve the respondent with his reply. Unfortunately, the claimant failed to do so. Not only that, but he also failed to appear and progress the matter as well.
   
2. On 3 June 2024, the respondent appeared and seek an unless order to be issued against the claimant to serve him with the reply. The unless order was perfected, signed and issued on the same date. The unless order states;

That unless the claimant served his reply on the respondent by 4 June 2024 in order for the court to progress the matter for hearing, if failure of the claimant to serve his reply on the respondent, the claim will be struck out.

The matter is adjourned to 7 June 2024 at 9:00am for mention to check on compliance of the order^[1].

3. On 7 June 2024, the respondent appeared again and informed the court that the claimant did not comply with the unless order. In other words, the claimant did not serve any reply on the respondent, despite the unless order was issued. Therefore, the claim should be struck out.
   
4. I must remind parties that unless order a self-execution order. Failure to comply with such an order, will result in the matter been struck out or come to an end. This was affirmed in the case of Kuriti v Dovele Landowners Board of Trustees^[2], at paragraph 8, where the court states;
   

"unless" orders were similar to final orders in that if the action agreed to be taken is not taken by the date fixed, then the claim comes to an end and the court becomes functus officio so that the only way out is to appeal the decision”

5. I agree that I had made several directions for the claimant to serve the respondent with his reply, in order to progress the matter to hearing. After several directions were made, an unless order too was also issued for the claimant to serve the respondent with the reply. Unfortunately, the claimant did not comply at all.
   
6. Not only that, to even make it worst, the claimant too also failed to turn up in court to prosecute the case, despite several directions were issued. Failure to comply with the unless order and non-appearance to prosecute the matter, in my view, is sufficient and reasonable to have this matter struck out. Should the claimant think heavy of the claim, they should have appeared and comply with the unless order. It seems that the claimant did not willing to progress the claim at all that is why they fail to appear. Having say that, and what I have discussed above, I now make these following orders.

Orders

1. The claim and reply to defence are hereby strike out in its entirety.
2. Parties to bear their own costs.
3. Right of appeal.
   

Dated 5^th of July 2024

THE COURT

..................................
MR. MICHAEL FAGANI
Magistrate – First Class

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^[1] Unless order perfected, signed and issued on the 3 June 2024.
^[2] [2014] SBHC 95; HCSI-CC 101 of 2013 (2 July 2014).