HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 76 of 1997
LILIAN
RAZAK
class="MsoNormal"rmal" align="center" style="text-align:center;tab-stops:right 477.4pt; margin-top:1; margin-bottom:1">
v
AVI
AVI MARINA LIMIT>
& REGISTRAR OF TITLES
High Court of Solomon Islands
(LUNGOLE-AWICH, J)
Civil Case No. 76 of 1997
Hearing: 25 February 1999
Judgment: 8 March 1999
John Sullivan
for the Applicant/Defendant
Andrew Nori for Respondent /Plaintiff
JUDGMENT
LUNGOLE-AWICH, J:
Background: The plaintiff in this case, No. HCC76 of 1997, is
Lillian Razak The defendants are; Avi Avi Marina Limited, the first
defendant,
and the Registrar of Titles, the second defendant. The
plaintiff's case is for rectification of Lease Register under S.:229
of the
Lands and Titles Act, Chapter 133 of Laws of Solomon Islands. The ground for
rectification is said to be mistake.
It is alleged that the lease was meant
to be of 25 acres out of land parcel No. 181-007-1, in Central Province, and
not
of the whole land parcel which is said to be 100 acres.
There is
another case between Avi Avi Marina Limited and Razak; it is No. HCCC232 of
1996. In the case, Avi Avi Marina Limited
is the plaintiff and Razak is the
defendant. It is over the same land parcel. Avi Avi Marina Limited sued in
that case,
challenging notice of forfeiture of the lease over the land,
issued by Razakl. On 15.10.1998 at the application of Avi Avi Marina
Limited, this court granted interlocutory injunction against Razak,
restraining her from resuming complete possession while
the case is being
determined. She was allowed to remain in an area that she was occupying at
the time of the application.
The Issue for
Determination in this Judgment
"1. & (a) The plaintiff's originriginating summons herein
be dismissed for want of prosecution;
>
&nb
p>
(b) The plaintiff's originatimmons herein be struck
out on the grounds that it is t is frivolous vexatious and an abuse of process.
2. Jndgme e be enbered eor thor the First Defendant
against the Plaintiff.
3. ;&nspp;&nssp; The; The Plai Plaintiff pay the First Defendant's cost
of and in connection with this action including
this notice of motion on an
indemnity basis.
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.75pt">
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.7
4. &nnbsp; &nsp; &nbup; Surh fr ther or othe other orders as to this
Honourable Court may seem meet."
Submission by
the Applicant/Defendant
When the
application was presenresented, learned counsel Mr John Sullivan, for the
applicant/defendant did not make submission
about paragraph 1(b), the
grounds that the case was frivolous, vexatious and abuse of process, and
about part of paragraph
3, that costs be awarded on indemnity basis. I shall
assume that he saw no prospect for success in those grounds and abandoned
them. Given the facts of the case, I am inclined to say that the grounds in
paragraph 1(b) would fail, and that there would
be no reason to order costs
on indemnity basis. I dismiss the application to the extent that it is based
on the grounds
that the case is frivolous, vexatious and abuse of process,
and in as far as the application asks for. costs on indemnity basis.
lass="MsoNormal"rmal" style="margin-top: 1; margin-bottom: 1">Mr.
Sullivan in fact submitted mainly on the point that the plaintiff's case was
time barred, under S:9 (2) as read with S:32
(2) (c) of the Limitation Act,
Chapter 18 of Laws of Solomon Islands, a point which was not even raised in
the Notice of Motion. Learned Counsel Mr. Andrew Nori, for the respond
respondent/plaintiff did not object, instead he also submitted on
limitation. I suppose he
may have realised the inevitable fact that the
limitation point would have to be argued at one time or another. Had Mr. Nori
objected, I would have refused to have the new point argued without any
notice. What Mr Sullivan did was in fact to
have a special case on point of
law raised and argued in limine before court, without following the procedure in Order 37
of the High Court (Civil Procedure) Rules.
To lesser extent, Mr. Sullivan submitted on that part of
the grounds in paragraph 1(b). He urged the Court to find that the plaintiff
exhibited
such failures in conducting her case, that amounted to want of
prosecution, therefore the Court should dismiss her case.
Submission by
the Respondent/Plaintiff
p class="MsoNormal"rmal" style="margin-top: 1; margin-bottom: 1">Mr. Nori
raised the point that limitation of action is a question of jurisdiction and
once the defendant has submitted to jurisdiction
by taking part in the case,
he cannot raise limitation. It is correct that some text books treat
limitation as a question
of jurisdiction. The well established practice in
our Court is, however, that the defendant takes up the point of limitation.
He does so by pleading it in action by writ of summons or by stating it in
affidavit opposing an originating case. In this
case, the point was raised
in the opposing affidavit of Dennis McQuire, for the defendant.
Want of
Prosecution in Civil Cases
In thIn this jurisdiction the law about want of prosecution
is that where the limitation period, the time limited for bringing
up a case
in Court, has not elapsed, a case cannot be dismissed for want of
prosecution unless the plaintiff has failed
to comply with a peremptory
order of the Court, requiring him to comply or his case will be dismissed.
His delay in that
case, will be regarded as contumelious and inordinate. He
is required to proceed expeditiously with a case which otherwise is
time
barred or to proceed expeditiously with a case which is not time barred or
suffer or a peremptory of order which can
lead to dismissal of his case.
Three early cases in which the law was stated are: Lo
Shiu Tang -v- John Lo, No. HCCC 8 of 1981, South
Pacific Marketing (NZ) Ltd -v- Daniel Maile [1987] SILR 81 and Kayuken Pacific -v- Hooper [1987] SILR 54. In the cases, the judges
of this Court adopted the law as stated in the English case of Birkett
-v- James [1977] 3 WLR 38. Mr Sullivan submitted that the English courts
have since moved away from the rule in Birketts's
case to some extent; he cited the English case of Department
of Transport -v- Chris Smaller (Transport) Limited [1989] 2 WLR 578 in
support. He also cited the Australian case of Ralph
Duncan Cooper -v- Hopgood and Ganim Appeal Case No. 842 of 1997 in the
Supreme Court of Queensland. I do not think that Chris Smaller's case moved away from the rule in Birkett's
case. It merely emphasised an important consideration namely; when a fair
trial is no longer possible. In any case, I do
not think it is right for
this Court to follow every change in the interpretation of the law made in
other courts, after
this Court will have adopted a ratio decidendi.
Case precedents from other jurisdictions, including England, are merely
persuasive in our Court. Suppose that other Court
changes its interpretation
a second time thereby returning to where it started, should our Court follow
that path of merry-go-round?
Three Judges of this Court have been persuaded
by the rule in Birkett's case and
adopted it, I shall take their position as the law in Solomon Islands.
span>
Want of
Prosecution
(Significance of Limitation Period)
An important point in this case in the determination as
to whether there has been want of prosecution, is that limitation period
has
expired. The time limited for the plaintiff to bring her case for the
recovery of the land to Court is l2 year years
under S:9(2) of the
Limitation Act. It is to be noted that she did not, after finding her case
and before the defendant presented application for dismissal, apply
for
waiver of limitation under S:39. If the facts as stated in affidavits in
this case show that the plaintiff has exhibited
unreasonable delay, and now
coupled with the expiry of time to bring the case to court, then I shall
find that there has
been want of prosecution and may proceed to dismiss the
case.
The facts are that the plaintiff filed her originating
summons on 3.4.1997. She adopted for use, her affidavit in case No.
HCCC232/96. It is not known when she had the originating summons served on
the defendant, but it must have been soon after
because the defendants filed
memorandum of appearance as early as 10.4.1997. The case file does not show
that any step
was taken after appearance was entered, until about one year
later, on 8.4.1998, when the defendant, (not the plaintiff) filed
a
"Notice of Intention to Proceed". The notice did not specify how
the defendant intended to proceed. It could
have been by asking for a date
of hearing the originating summons following failure by the plaintiff to ask
for the date,
or it could have been for a peremptory order forcing the
plaintiff to ask for a date of hearing or have his case dismissed.
There is
nothing on the case file to show that the plaintiff replied or reacted to
the notice. Four months later the defendant
filed the present application
asking that the plaintiff's case be dismissed for want of prosecution. The
facts lead to
the conclusion that there has been unreasonable delay on the
part of the plaintiff to proceed with her case since filing originating
summons nearly 2 years ago. That together with the fact that limitation
period has elapsed are reasons for me to rule that
there has been want of
prosecution and I dismiss the plaintiff's case.
It
be remembered that ahat apart from statutory requirements that certain specified
cases be commenced by originating summons,
the rest of originating summons
cases are so commenced because of the advantage that originating summons
offers speed in
cases where facts are not in dispute. It is therefore ironic
that originating summons cases should last over long period of
time.
I have
always thought it p it pointless and cause of delay, that the defendant in
originating summons case should take up
point of law in advance or apply for
striking out because "cause of action" is not disclosed. The
defendant can
simply demand that the plaintiff ask for a date of hearing the
originating summons and on the plaintiff failing the defendant
can proceed
to ask for the date. He can then raise all those grounds of point of law
and/or striking out at the one final
hearing.
The Court Refuses this Case to Proceed after Limitation
Period has elapsed
Mr. Nori
took advantage during the hearing of the defendant's/applicant's application
to submit and ask the court to allow
the respondent's/plaintiff's case to
proceed notwithstanding that it is time barred. His submission was based on
S:39 of
the Limitation Act. In an application under S:39, all circumstances
of the case must be taken into account. Of particular importance are: the
reason and length of the delay, whether the plaintiff acted promptly once
she knew about the cause of action, whether evidence
for the defendant will
still be available or cogent so that fair trial will be possible.
The
delays that that I have outlined for deciding that there has been unreasonable
delay by the plaintiff since commencing
its case on 3.4.1997 are also
relevant in one aspect in the consideration about whether, I may, under S:39
of the Limitation Act, allow the plaintiff to proceed with its case which
otherwise has been time barred. The delays are relevant to show that the
plaintiff, even after having commenced her case long after the limitation
period, was still tardy when she should have
proceeded with haste.
The
other aspect in the consideration of discretion under S:39 is whether there
has been unreasonable delay in coming to
Court since the plaintiff became
aware, of the alleged mistake in the lease and that the defendant was not
willing to have
the mistake rectified. The evidence is that the plaintiff
became aware of the mistake and that the defendant was not agreeable
to have
it rectified, at least by 1981, some 16 years before the plaintiff commenced
proceedings. I think the delay was
unreasonable in the circumstances.
A very
important consideration under S:39 S:39 is whether, if the case is allowed to
proceed, a fair trial will not be impossible.
It has been deposed on behalf
of the defendant, that one, Mr. Wong, the managing director of the defendant
then, and who negotiated the lease, has since died. The plaintiff has not
contested that. In my view it will be impossible to conduct a fair trial
because vital evidence which otherwise would be available
from Mr. Wong will
now not be available so as to compare it with evidence for the plaintiff.
The
three reasons I have given abov above are sufficient to persuade me to refuse-
the plaintiff's submission tinder S:39
of the Limitation Act, that I allow
her case to proceed after the time for bringing the case to court has
elapsed. Her case for rectification
of the Lease Register remains time
barred.
Costs
I have
considered the fact that the respondent/plaintiff raised the question of
mistake in the lease, with the relevant
government authorities early, and
that she may have hoped that the matter would be resolved administratively.
I have also
taken into account that the applicant/defendant lost on the
contention that the case is frivolous, vexatious and abuse of process,
and
on costs to be on indemnity basis. For those reasons, I make no order for
costs against her. Each party is to bear
own costs.
Judgment does
not Apply to Case No.HCCC232/96
Th judgment does not apply pply to the other case, No. HCCC232/96, in which the
defendant is challenging the notice of forfeiture
of the lease. That case
will continue in the normal course.
Delivered this 8th
day of March 1999
At the High Court, Honiara
Sam Lungole-Awich
Judge
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