Jimalyn v Agovaka [2024] SBMC 9; Civil Case 148 of 2023 (4 June 2024)

IN THE CENTRAL MAGISTRATE COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case 148/2023

Between:
INI JIMALYN

And:
PETER SHANEL AGOVAKA

Date of Hearing: 1 May 2024
Date of Ruling: 4 June 2024

Non-Appearance for the Claimant
Ms. Ogaoga. Y - for the Respondent

RULING ON APPLICATION TO STRUK OUT FOR NON-COMPLIANCE

1. The respondent filed an application to struck out for non-compliance on 8 April 2024.
   
2. The application to struck out followed a claim of category C filed by the claimant on 20 October 2023. The respondent filed her response on 15 November 2023. A defence and counter claim were filed on 23 November 2023. A reply to the respondent’s defence was filed on 13 December 2023 however, the claimant failed to file his reply to the respondent’s counter claim despite several directions was issued.
   
3. On 28 February 2024, counsel for the respondent appear and inform the court that the claimant yet to file his reply to their counter claim. The court then adjourned the matter for counsel Samani to file his reply to the respondent’s counter claim.
   
4. On 12 March 2024, Ms. Ogaoga appear again and inform the court that she yet to receive a reply from Mr. Samani to her counter claim. Counsel then seek an unless order to be issued against the claimant. An unless order was issued on the same date, in particular for the claimant to file his defence or reply to the counter claim. A direction order too was also issued on that date as well.
   
5. The unless order was perfected, signed and issued on 15 March 2024. The unless order states;

That unless the claimant file a defence/reply to the counter claim on the 19^th of March 2024 in order for the court to progress the matter to hearing, if failure of the claimant to file a defence/reply to the counter claim, the claim will be struck out.

The matter is adjourned to 2 April 2024 at 10:00am for mention to check on compliance of the order^[1].

6. On 2 April 2024, Ms. Ogaoga appear and inform the court that they have served the copy of the direction order and unless order on Mr. Samani. Proof of service was filed in court on the same date. However, there was still non-appearance of the claimant’s counsel again. The court then set the matter for hearing on 8 April 2024. The hearing was basically for parties to deal with the issue of non-compliance of court’s direction and the unless order perfected, signed and issued on 15 March 2024.
   
7. The hearing should take place on 8 April 2024 unfortunately, Ms. Ogaoga did not feel well that day, so she did not move the application. A sick report was filed on that date. So, the court then adjourned the matter for hearing again to 12 April 2024.
   
8. On 12 April 2024, counsel for the respondent appear and proceed with the application to have the matter struck out. However, before Ms. Ogaoga proceeds, Mr. Samani appear and seek adjournment. For fairness to parties, court grant leave for the matter to be adjourned, but set directions for counsel Samani to file his submissions in respond to the application to struck out for non-compliance by 19 April 2024, and the court will deliver its ruling on 1 May 2024. Both parties agreed for the court to conduct a paper hearing. I note the adjournment is basically for Mr. Samani to response to the application to struck out.
   
9. Unfortunately, on 1 May 2023, the matter came back again for hearing, but there was no response filed by Mr. Samani as directed by the court on 12 April 2024. The only document the court have seen in the file is a reply to the counter claim filed on 12 April 2024. In other words, counsel Samani filed a reply to the counter claim but did not filed any response to the application to struck out as directed.
   
10. Now the issue left to this court to consider is whether or not I should strike out this matter for failure to comply with the court’s direction and unless order issued on 15 March 2024, even though there is a reply filed by the counsel for the claimant to the defendant’s counter claim?
    
11. To determine the issue, it is important to consider the unless order and Rule 9.71(a)(b) and Rule 9.72 (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
    
12. I think the unless order issued on 15 March 2024 was very clear that counsel for the claimant is ordered to file his defence/reply to the counter claim on 19 March 2024, if failure to do so then the claim will be struck out.
    
13. In light of the Rule regarding struck out, Rule 9.71(a)(b) and 9.72(b) of the Solomon Islands Courts (Civil Procedure) Rules 2007^[2], also states it clear that;
    

“...if the claimant does not:

(a) take the steps in a proceeding that are required by these rules to ensure the proceeding continues; or
(b) comply with an order of the court made during a proceeding”.

“Rule 9.72 The court may strike out a proceeding:

..............

(b) at a hearing; or

...........”^[3]

14. I had the opportunity to carefully consider the direction order and unless order perfected, signed and issued on 15 April 2024. Having consider them, I must say counsel for the claimant failed to comply with both the orders of the court. I acknowledge counsel Samani filed his reply to the counter claim on 19 April 2024 and a social welfare report to this court as important in determining the case^[4]. However, that does not mend his failure to comply with the orders of the court.
    
15. To put it simple, the reply filed by counsel Samani to the counter claim on 12 April 2024, he should have filed it on 19 March 2024. What I am expecting from counsel on 19 April 2024, for him to file his response to the application to struck out for non-compliance. Unfortunately, that was not done. To me, it seems that counsel Samani is not following both the court’s direction and unless order perfected, signed and issued on 15 March 2024.
    
16. In Kuriti v Dovele Landowners Board of Trustees^[5], at paragraph 8, 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^[6].

17. I do not see any reasons as to why counsel for the claimant failed to file his reply or defence to the counter claim, despite several court’s directions and unless order was issued. To make it worst, Mr. Samani did not file any response to the application to strike out before this court. Should there be any, then counsel have been given the opportunity to response, but yet he did not make use of the opportunity as well. Therefore, the court did not have the chance to see any reasons of counsel’s failure to comply with those directions and the unless order.
    
18. Given that no evidence has been put before this court and with the reasons I have stated above, I must grant the application. I am satisfied that this matter should be struck out for failure of the claimant to comply with the direction orders pursuant to Rule 9.71(a)(b) & 9.72(b) of the CPR 2007 and also failure to comply with the unless order perfected, signed and issued on 15 March 2024 as a self-execution order for this matter to come to its finality. Having say this, I will now make these following orders:
    

Orders

1. The claim, reply to defence and reply to counter claim filed by the claimant is hereby strike out in its entirety for non-compliance pursuant to Rule 9.71 & 9.72(b) of the CPR 2007 and also non-compliance with the unless order perfected, signed and issued on 15 March 2024.
2. The counter claim of the respondent is hereby granted.
3. Parties to bear their own cost.
4. Counsel for the respondent to provide draft order for court’s perfection.
5. Right of appeal.
   

Dated 4^th of June 2024

THE COURT

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

---

^[1] Unless order perfected, signed and issued on the 15 March 2024.
^[2] See Rule 9.71(a)(b) and 9.72(b) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
^[3] Ibid, n 2.
^[4] Social Welfare report tendered to court on 22 May 2024.
^[5] [2014] SBHC 95; HCSI-CC 101 of 2013 (2 July 2014).
^[6] Ibid, n 5.