On the day of hearing the applons, the defendant �filed� led� amended
statement of claim dated the same day. Learned Counsel
Mr. Kama, for the
plaintiffs, pleaded with court to accept the reasons for delay. The first
reason was that an amended
statement of claim was filed on an earlier
occasion, within the 7 days required. He says that it was in fact the one
which was tendered at court for the hearing on 9.3.1998, of an application
to strike out the claim, the first application made
leading to the order of
9.3.1998. That is the order that the plaintiffs are said to
have failed to comply with. Mr. Kama says that was an error because a
completely different amended statement of claim was required, the order
required that averment be made of offer and or contract
to sell the land in
question. He submits that the statement of claim he filed only moments
before hearing, complies with
the order of 9.3.1998. The other reason was
that solicitor was out of the country.
Conations in General Delay
p class="Mso="MsoNormal" align="left" style="margin-top: 1; margin-bottom: 1">
Allen v. Sir Alfred Alphine [1968] 2 QB 221/1 All ER 543. The
appeal case was actually three appeals heard together and decided together.
They were all based on general
delay. The delays were for 6,7 and 20 years.
In two of the cases, it was no longer possible to have fair trial. In one,
the appeal was allowed and the case resumed. In Solomon Islands case of
South Pacific Marketing (NZ) Ltd v. Daniel Maike [1987] SILR 82 the
considerations to be taken into account emphasized were: whether there was
good reason for the delay, whether fair
trial would no longer be possible
and whether limitation period to commence suit in the case has expired. Ward
C.J adopted
the considerations in the English case of Birkett v James
[1977] 3 SILR 38 and he cited with approval, Allan v Sir Alfred McAlphine,
the case now cited by Ms Damena-Tepai. This application would not succeed on
the basis of those established considerations.
In recent cases, notably,
United Bank Ltd v Maniar [1988] 1 All ER 921, the considerations of
whether limitation period to sue has elapsed, there being no good reason for
the delay and even
prejudice were held to play no part in dismissal for want
of prosecution in cases brought by originating summons. The rules
must be
strictly followed in originating summons suits because the procedure is one
to ensure speedy dispatch of cases
suitable for originating summons
procedure. When Ms. Damena-Tepai was asked about the consideration of the
time for bringing
action not having elapsed, her answer was that the first
defendant would prefer the case dismissed and to wait to see whether
the
plaintiff will file fresh action. I think it is good reasoning to let the
defendant and not the court, decide whether
it is prepared to have its case
further delayed by dismissal and then the plaintiff bringing fresh action. I
have strayed
into the law regarding dismissal for want of prosecution based
on general delay, only because the case cited, by Ms. Damena-Tepai
concerned
general delay not delay due to failure to comply with court order.
Considerations for Dismissal because of Failure to Comply with with Court Order:
I
repeat that the application of the firsendant is based on failure lure to
comply with court order made on 9.3.1998 not
on general delay. Court will
usually order dismissal based on failure to comply with earlier court order
requiring filing
of pleading when the order is peremptory and the default is
contumelious. Usually the defaulting party would have been put
on terms and
there would have been no good explanation, and especially when the delay has
occasioned prejudice. Moreover,
should the defaulting plaintiff issue fresh
writ of summons, he will be met by application to strike out his fresh
action
on the ground of abuse of court process - see Lo Shiu Tang
v John Lo HC.CC 8/1981. Mr. Kama has now filed an amended statement of
claim. Although that was done very late, normally parties would
consider
terminating their applications on offer of costs. I have considered Mr.
Kama�s explanation and accept that his
first attempt to file an amended
statement of claim is good reason for delay when considered together with
his being
away from the country. His default is not contumelious. Further, I
am unable to see any prejudice occasioned by the delay.
The court excuses
the default and grants leave so that the plaintiffs� amended statement of
claim dated 10.8.1998, now
on court file, is accepted in compliance with the
order of this court made on 9.3.1998.
Reasonable Cause of Action
On the merit, I consider that the plaintiffs this time have suve sufficiently
averred facts that disclose reasonable cause
of action against the first
defendant in that at paragraphs 5 and 6 of their amended statement of claim
they allege offer
to sell, made by the first defendant to the plaintiffs.
The plaintiffs� allegation may be understood that the offer was so
certain
that the plaintiffs were even asked to spend money on repair of the house
and they did. Of course that must be
proved, but at this stage the court has
to take the facts as averred. The first defendant did not this time ask that
the case be dismissed because the statement of claim discloses no reasonable
cause of action. If it had asked for that, it
would have failed. Costs of
the application of the first defendant must, however, be paid by the
plaintiffs. From the
affidavit of Loa Damena-Tepai, several efforts were
made to get the plaintiffs to file amended statement of claim before it
was
finally �filed�. The �filing� was done at the very last moment, at 1.40pm on
10.8.1998 for hearing at 2 pm.
Application of the Second Defendant.
The application of the second defendant is a difficulticult one to decide. The
amended statement of claim which I have
now accepted does not aver facts
which directly affect the registered title of the second defendant in the
land parcel
as required under the Lands and Titles Act. The plaintiffs will
have to get a judgment which goes beyond award of damages,
that is, one
which orders specific performance, being the sale of the land to them, for
them to be able to obtain interest
in the land. Only then will the
plaintiffs be able to challenge the registered title of the second
defendant. The difficulty
is this: is it not in the interest of the second
defendant to remain a party in the case so as to watch from within other
than from without, whether the case advances adversely to his interest? The
irony becomes clear in this illustration:
Suppose the plaintiffs did not
join as a party to the case, the second defendant who is now the holder of
the registered
title in the land, and the second defendant applied to be
joined so as to watch his interest in the case, would the court refuse
his
application? I do not think so. The important point is that the second
defendant has been afforded opportunity to
watch over his interest. He does
not wish to take up the opportunity. Since he is prepared to keep out of the
suit and
since there are no averments that directly disclose his liability,
I grant his application and strike out the claim against
the second
defendant. The case against him is dismissed. He is of course, free to file
an abandonment of this judgment
should he wish to remain a party after all.
In that event, I would grant him leave to rejoin the case as second
defendant.
The court is unable to order possession of land parcel No. 192-002-14 by the
second defendant immediately. The reason
is that it is not known what the
result of the substantive case between the plaintiffs and the first
defendant will be.
Moreover, even a valid sale may not necessarily result in
dispossessing a lessee.
The que of rent is decided in favour of the second defendant, beca because
the plaintiffs admit liability to pay rent
and the first defendant will have
the second receive the rent. All arrears must be paid immediately. Writ of
execution
for the rent arrears may issue. The rest of the consequences of
default must be in accordance with the terms of the lease or
licence under
which the plaintiffs were in possession of the land before the sale by the
first defendant to the second
defendant took place. Costs of his application
is awarded to the second defendant.
Delivered this 12th day of August, 1998
At the High Court
Honiara
Sam Lungole-Awich
dge
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