HIGH COURT OF SOLOMON
ISLANDS<
Civil Case No. 166 of 2000
LUKE TACO
AND JOHN KOETE
v
GELLA AREA ASSEMBLY,
TROPICAL RESOURCES DEV.
COMPANY,
DALGRO (SI) LTD,
ATTORNEY GENERAL
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High Court of Solomon Islands
Before: F. O. Kabui, J
Civil Case No. 166 of 2000
Hearing: 22nd
Judgment: 23rd
January 2001
Mrs. M. Samuel for the
Applicants
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T. Kama for the 2nd
and 3rd Respondents
Jeoffrey Deve for the 4'h
Respondent
JUDGEMENT
(Kabui, J):
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The Facts Deposed to by Mrs
Samuel in Support of the Application
As the Solicitor for the
cants, she filed in the High Court Registry the Notice of Appointment
to hear the Orie Originating
Summons on 30th October 2000. She also
wrote on 30th November 2000, a circular letter informing the
Registrar of the High Court and all the legal practitioners in Honiara of
the sad fact that their office had been burned down on Friday 24th
November 2000. They had lost everything in their office as a result of this
sad event. She said they were closing down
business until the New Year 2001.
She also said that all the cases listed for hearing in the High Court would
have to
be adjourned for 2001, as they would have to reconstruct their
office files. She also told her clients, the Applicants the
fact that her
office had burnt down and that the case was to be heard on 13th
December 2000. She said she made a mistake so that when her clients, the
Applicants, called into the High Court Registry
on 13th December
2000, they discovered that their case had already been dismissed by the High
Court on 4th December 2000 about more than a week earlier. She
thought that the Court and Mr. Kama were aware of her letter of 30th
November 2000 and would act accordingly.
The Procedure
1">
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Order 38, rule 6 of the High
Court Rulates
�If, when a trial is
called on, the defendant appears, and the Plaintiff does not appear, the
defendant, if he has no counterclaim,
shall be entitled to judgment
dismissing the action, but if he has a counterclaim, then he may prove such
counterclaim
so far as the burden of proof lies upon him. (See Form 10
Appendix F)�.
As I have said, the Applicants�
action was dismissed under Order 38, rule 6 above.ver, Order 38, rule 7
states
�Any verdict or judgment
obtained where one party doe appear at the trial may beay be set aside by
the Court upon such
terms as may seem fit, upon an application made within
twenty - one days after the trial.�
The Applicants� Notice of Motion was obviously filed under Order 38, rule 7 above well within 21 days
after mter my Order for
dismissal was perfected on 12th December 2000.
The Law
<
Clearly, within the meaning of
rule 7 above, the setting aside ofrdict or judgment under thir this
procedure is a matter
for the discretion of the Court. In Grimshaw v
Dunbar
[1953] 3 WLR 332, the Plaintiff being the landlord sued the Defendant for
recovery of possession of certain premises on the ground that the
Defendant
was in arrears with the rent. Three days before the hearing of the
Plaintiff�s Summons, the Defendant paid
into Court the full rent. A Court
official then told the Defendant that it was not necessary for him to attend
the Court
hearing because the Plaintiff's action would be dismissed by
reason of the payment of rent into Court. On the hearing of the
Summons in
the absence of the Plaintiff, the Court made an order for possession in
favour of the Plaintiff. Having received
a copy of the order, the Defendant
then filed a Motion to have that order set aside. The Motion was refused and
the Defendant
appealed to the Court of Appeal. At pages 337 - 338, JENKINS
L. J. made these remarks,
�... I will mention some
of the main considerations which I conceive should be regarded in the
exercise of the judge's
discretion. First, although there is no hard and
fast rule about it, as I think Lord Atkin pointed out in Evans v Bartlam8,
it must be material for the judge to know why it was that the defendant
failed to appear on the proper day when the
case came into the list and was
heard. How does this case stand as regards that matter? There is the
undisputed statement
of the tenant, which he has put on oath before us, to
the effect that his absence was due to the wrong advice which he received
from one of officials of the court. One starts with that. The difficulty in
which he finds himself is due to the fact
that an official of the court
unwittingly misled him. Secondly, has there been any undue delay by the
absent party in
launching his proceedings for a new trial? In answering that
question I venture to think that delay in itself would not be
important, but
delay prejudicing the other party, or delay which would enable rights of
third parties to intervene, would
be most material. How does the matter
stand here as regards delay? The tenant did not move in the matter until, I
think,
September 23 that is some six weeks or so after he received the copy
of the order. But in estimating the importance of that
lapse of some six
weeks it is right, I think, to bear in mind that the original order for
possession did not direct possession
to be given up until November 3, 1952,
so at the date when the tenant launched his application there was plenty of
time
left for a new trial to be had without embarrassing the landlord
(assuming him to be successful on the new trial) by having
the tenant in his
house for a longer period than he would otherwise have been and, therefore,
perhaps impeding him in
some future disposition or letting of the house that
he might want to make.
Therefore, in this case I
shout say that there had been aeen any undue delay; and that conclusion is
reinforced by the
circumstance that when this application did come before
the judge, and he refused it, he granted the tenant an extension of
time for
giving up possession to January 1, 1953. So the judge cannot have thought
that there had been, up to the time
the matter came before him on October
28, any delay which would prejudice the landlord. The judge could on the
same day
have granted a new trial with every prospect that the new trial
would have taken place before January 1, 1953.
Thirdly, will the
landlord in this case be prejudiced by an order for a new trial? There may
be cases where the order
sought to be set aside has been acted on and
circumstances have arisen (generally linked up, I should say, with some
undue delay or other dereliction on the part of the defendant) which would
make it unfair or inequitable that the case should
be reopened. I see
nothing in the facts of the present case which could be said to make an
order for a new trial prejudicial
to the landlord in any respect which could
not be adequately compensated by a suitable award of costs.�
8(1937)
AC 473
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Three guiding principles can be
extracted from the remarks of JENKINS L.J.e, though they are not
exhaustive to say
the least. First, the Court should find out why the other
party did not attend the Court hearing at the appointed date and
time.
Second, was the other party very late in coming to Court in seeking the
setting aside of the order made? Third,
was there any good reason against
the reopening of the case in terms of costs being the alternative remedy?
The Evidence
Clearly, the Applicants�
Solicitor, Mrs. Samuel, had writo the Registrar of the High Court and
to all legal pral practitioners
in Honiara telling them of the fact that their
office had been destroyed by fire on Friday 24th November 2000,
and that everything in that office had been destroyed including case files.
She said they had to close
their office for business until the New Year. She
specifically mentioned in paragraph 3 of her letter that all cases handled
by them would have to be adjourned for 2001 to give them time to reconstruct
their case files. She had also told her
clients, the Applicants, that their
case was to be heard on 13th December 2000 apparently being a
mistake on her part. When her clients, the Applicants, called at the High
Court Registry
on 13th December 2000, they discovered that their
case had been dismissed on 4th December 2000. Had Mrs. Samuel
told them of the hearing on 4th December 2000, they obviously
would have appeared in persons and asked for an adjournment. Solicitor for
the 2nd and 3rd Respondents, Mr. Kama, admits by
affidavit evidence that he was only aware of the letter written by Mrs.
Samuel when
he arrived back in his office from Court on 4th
December 2000. By that time, it was too late to do anything about Mrs.
Samuel�s general request for adjournment of their
cases in the High Court. I
find therefore that Mrs. Samuel and her clients, the Applicants, had a
legitimate reason for
being absent in Court on 4th December 2000.
It is not
disputed that the Applicants filed their Notice of Motion on 14th
December 2000, two days after the order was perfected on 12th
December 2000. I find that the Applicants were within time and acted within
21 days. There is no evidence of delay. There
is no evidence that the 2nd
and 3rd Respondents would be prejudiced if the order I made were
to be set aside thus allowing for a new trial to take place. The effect
of
my order upon the 2nd and 3rd Respondents would have been to place them in a
position free of any legal threat from
the Applicants. If there is any form
of prejudice at all, it would be the cost of defending the case against the
Applicants
at the new trial date. That in my view is normal cost of
litigation that would not necessarily prevent the Applicants from
setting
aside the order I made and prosecuting their claim in the normal way.
The 2nd and 3rd
Respondents� Argument
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Whilst the Appts� case has
merits, Counsel for the 2nd and 3rd Respondents, Mts, Mr.
Kama, argued that the Originating Summons filed by the Applicants on 26th
May 2000 did not disclose a cause of action. He argued that the Applicants
were wrong in instituting their action by
way of an Originating Summons
because essentially, the Applicants claim was for ownership of land in
custom which was
a matter for the Local Court to decide (See Gandly Simbe
v East Choiseul Area Council, Eagon Resources Development Company Limited,
Steven Taki and Peter Madada) (Civil Appeal No. 8 of 1997). The
appropriate method of claim, he argued, was by way of Writ of Summons and a
Statement
of Claim. But in this case, he argued, there was no evidence of
ownership of land by the Applicants. He pointed out that according
to the
affidavit evidence filed by Mr. Maru and others on behalf of the 2nd
and 3rd Respondents, the lands being logged were outside of the
lands claimed to be owned by the Applicants. He said even the claim
of
ownership of a reef claimed by the Applicants lacked evidence of ownership.
All in all, he argued that the Applicants�
case lacked substance and the
Court should refuse to determine the questions posed by the Originating
Summons under Order
58, rule 5 of the High Court Rules. This argument put
forward by the Applicants� Counsel, Mr. Kama, brought into play another
point of law of equal importance in this sort of application. At page 338
JENKINS L.J. again made these remarks:
�Then there is a more
debatable point, as I regard it, as to how far the judge should consider the
prospects of success
of the party applying for a new trial. No doubt the
judge is entitled to satisfy himself that the party applying has a bona
fide
intention of defending the action, and that there is some possibility of his
doing so with success. For example,
I apprehend that if an admitted and self
- confessed trespasser allowed Judgment for possession to go in default in
his
absence, the judge would be entitled, on an application for a new trial,
to refuse on the ground that he was palpably a trespasser
and could not,
whatever evidence he gave, possibly justify his presence in the house. But,
short of cases of that kind,
I think that a new trial should seldom,if ever,
be refused merely on the ground that the applicant's case appears to be a
weak one, and it is, moreover, difficult to see how the tenant's case here
could on the face of it be classed as obviously
weak in view of the payment
into court. Be that as it may, a party to an action is prima facie entitled
to have it heard
in his presence; he is entitled to dispute his opponent's
case and cross - examine his opponent's witnesses, and he is entitled
to
call his own witnesses and give his own evidence before the court. Prima
facie that is his right, and if by some mischance
or accident a party is
shut out from that right and an order is made in his absence, then common
justice demands,
so far as it can be given effect to without injustice to other parties, that
that litigant who is accidentally
absent should be allowed to come to the
court and present his case ��
Clearly, a weak case would b no ground for refusing an application to set aside a verdict or judgment on
that ghat ground.
But there can be cases for proper refusal to set aside.
The Evidence on this Point
The Belaga House of Chiefs�
meeting on 18th
Forest Resources and Timber
Utilization Act (Cap. 40).
Although paragraph 5 of Mr. Koete�s affidavit filed on 26th May 2000
mentioned Totola land, Aolona land, Valeona land
Vatupota land and
Maneisorisaro land, nowhere does he say that he or his
tribe owns all or any of these
lands. He however, in paragraph 6 of his affidavit said he and his tribe
owned Saumaleiade
land and Koukomu reef. There is no evidence to show that
Koete and his tribe own this land and reef. In fact, affidavit evidence
by
Messrs Maru, and Vureseka shows that the road access stopped short of
entering Koete�s land. Mr. Koete was in fact
not present on the third day of
the Belaga House of Chiefs� hearing to press his claim of ownership to
Saumaleiade land
and Koukomu reef. I must say that the content of Mr.
Koete�s affidavit is very general in nature and scanty in its content.
It
does not hear out sufficient facts to support the determination of the
questions posed in the Originating Summons
filed by the Applicants on 26th
May 2000. It says nothing about Forms I and II and the manner in which these
Forms were filled out under the provisions
of the Forest Resources and
Timber Utilization Act (Cap. 40). There is no evidence to demonstrate
that the Applicants do have rights to be declared under Order 58, rule 1 of
the High Court Rules. The connection between the Applicants and Forms I and
II under the provisions of Forest Resources and Timber Utilization Act
in terms of an identifiable area of customary land is lacking in this case.
The Applicants have got no case to bring
to Court under Order 58 of the High
Court Rules. For these reasons, I have no choice but to refuse this
application to
set aside with costs. The Applicants� case is clearly beyond
a weak one.
F. O. Kabui
Judge
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