By Writ of Summons together
with a Statement of Claim filed on 5thth June 1999. I adjourned the hearing and the
Defendant filed a written undertaking the same day to the effect that within
14 days, he would not distribute the sum of $100,000.00 to members of his
group. By Summons filed on 2nd September 1999,
the Plaintiff sought judgment
in default of defence or in the alternative, judgment be entered on the
ground that the
Defendant had no defence. This Summons came before me on 13th
July 1999 but I adjourned the hearing because the Defendant had not been
served with that Summons. The Defendant filed
a Statement of Defence on 13th
October 1999. The Plaintiff also brought an ex parte application before the
Registrar on 13th October 1999 resulting in an ex parte Order
filed on 19th October 1999. By 13th October 1999, Mrs.
Tongarutu was no longer the spokesperson for the Defendant. Mrs. Tongarutu
however became the Solicitor
for the Defendant on 21st February
2001. Mrs. Tongarutu then filed a Summons on 17th April 2001
seeking orders one of which was to strike out the Plaintiff�s Statement of
Claim for want of prosecution within
one month period. This Summons came
before me on 18th April 2001 and I struck it out with costs.
Service of the Writs of Summons
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
By affidavit filed on the 10th
August 1999, Mr. Saungongo depos the fact that he served Mred Mrs. Tongarutu
on 9th July 1999 with the Writ of Summons at the High Court
Registry. This is however disputed by Mrs. Tongarutu in her affidavit
filed
on the 18th July 2001 (see exhibit �ANT 1�). She said she had
been served with the Writ of Summons on 30th June 1999. I believe
her because her because her letter (Exhibit �ANT1�) was written to Mr. Nori
the same day she received
the Plaintiff�s Writ of Summons. Whereas Mr.
Saungongo filed his affidavit on 10th August 1999, recalling
services effected more than 30 days ago. He could have been mistaken about
the date he effected
service on Mrs. Tongarutu. I find as a fact that the
Plaintiff�s Writ of Summons was served upon Mrs. Tongarutu on 30th
June 1999. She passed on the Writ to the Defendant.
Events that followed
There is evidence to show that
the Defendant had not entered a Memorandum of Appce. He might have not
been aware
of this requirement. In fact, the Plaintiff had filed a default
judgment application on 12th August 1999 seeking payment of
$100,000.00 in default of appearance or defence. The Registrar refused to
make the Orders
sought on the ground that the Defendant had appeared in
person and lodged an affidavit. The Defendant is a layman although
he
unsuccessfully sought assistance from the Public Solicitor�s Office in
Honiara. He nevertheless filed his Statement
of defence on 13th
October 1999. Prior to the filing of the defence, the Plaintiff had filed a
Summons on 2nd September 1999 seeking judgment to be entered in
default of defence or in the alternative, judgement be entered on the ground
that the Defendant had no defence. The hearing of this Summons was fixed for
2:00 pm on 13th October 1999. The Defendant was not in Court at
the hearing. There is no evidence to show that he had been served with the
Summons filed by the Plaintiff. This hearing resulted in an ex parte Order
being made on 19th October 1999 by the Registrar sitting as
Commissioner. Paragraph 1 of that Order directed that the Plaintiffs Summons
filed on 2nd September 1999 be adjourned generally with liberty
to restore upon 2 days notice.
The position as on 21st
February - 16th July 2001
When Mrs. Tongarutu
carriage of the Defendant�s case on 21st February2001, she was of
th the
view that the delay in the
progress in this case lay with the Plaintiff. She immediately invoked Order
64, rule 9 of the
High Court (Civil Procedure ) Rules 1964 (the High Court
Rules). The Plaintiffs first Summons was filed on 22nd February
2001, the very next day after she took carriage of the Defendant�s case. The
first Summons was never listed
for hearing. The Defendant�s second Summons
was filed on 17th April 2001, which I struck out on18th April
2001. The third Summons was filed 7th June 2001, the hearing of
which was fixed for 9:30 am on 18th July 2001. The fourth Summons
was filed on the date of hearing amending the third Summons. The Plaintiff,
on the other
hand, did not revive the hearing of his Summons filed on 2nd
August 1999 until he filed a fresh Summons on similar terms on 16th
July 2001.
The Plaintiff�s Case
The Plaintiffs case is that the
date of service of the Piff�s Writ of Summons upon Mrs. Tongarutu the
agent oent of the
Defendant, was 9th July 1999. The 14 days for
entering appearance would have lapsed on 22nd July 1999. After
this date, the Plaintiff was entitled to apply for judgment in default of
appearance. He did so on 12th August 1999. The Plaintiff
subsequently filed another Summons on 2nd August 1999 applying
for a judgment in default of defence or judgment on the ground that the
Defendant had no defence.
This Summons was adjourned by the Registrar
subject to being restored on two days notice. The Plaintiff has never
restored
this Summons for hearing until he filed another Summons on 16th
July 2001. Based upon these facts, Counsel for the Plaintiff, Mr. Nori,
argued that service of the Writ of Summons had
been served upon the
Defendant and therefore the Plaintiff�s application for judgment in default
of defence was in order.
He argued that the Plaintiff�s summons filed on 2nd
September 1999 at the hearing of that Summons. He further argued that the
Defendant�s statement of Defence filed on 13th October 1999 was
out of time and had not been delivered to the plaintiff. All in all, he
argued that the plaintiff was
not at fault in terms of delay as alleged by
the Defendant.
The Defendant�s Case
The Defendant is a layman. He
was assisted in the begi by Mrs. Tobgarutu as a spokesperson for him in
CourtCourt. Later
she withdrew and the Defendant was left alone to conduct his
case. He had never entered formal appearance but did so by personal
appearance in the High Court Registry on 12th August 1999. The
Registrar informed Bridge Lawyers of this fact by letter dated 12th
August 1999. He later filed a Statement of Defence on 13th
October 1999. His case was later taken on by Mrs. Tongarutu on a
professional basis as from 21st February2001. Again, Counsel for
the defendant, Mrs. Tongarutu, argued that the Plaintiff had failed to
restore his Summons
of 2nd August 1999 over a period exceeding
one year and so the Defendant must succeed in his application as against the
Plaintiff�s
opposing application.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
What shoul Court do in
this dispute?
When Solicitors do not follow
the procedures laid down by the High Court Ruleso so carelessly, the
consequences of
such conduct can be very difficult to sort out apart from
being prejudicial to the litigants. The practice rules are there
to be
followed by parties to litigation and their Solicitors to ensure the orderly
conduct of litigation in an expeditious
way If Solicitors do not understand
the contents of the High Court Rules, they must find time to learn them and
to read
about them in other works on civil procedure published by learned
authors in this area of civil litigation. If I am wrong in
saying this then
tardiness is no excuse for inefficiency. In this case, the Solicitor for the
Plaintiff was dealing with
a Defendant who is a layperson. The service of
the Writ of Summons upon Mrs. Tongarutu by Mr. Saungongo on 9th
July 1999 was not confirmed by affidavit of service until 10th
August 1999. Lapse of time can distort one�s memory to recall events
accurately. Order 9, rule 12 of the High Court Rules
says the Writ of
Summons must be indorsed, within 3 days at the most, with the day and the
month of service in default
of which the Plaintiff shall not proceed by
default for non - appearance. In this case, the Plaintiff�s Writ of Summons
was not indorsed with the date and month of service in accordance with Order
9, rule 12 of the High Court Rules. It is no
wonder that Mrs. Tongarutu
disputed the correctness of the date and month stated in Mr Saungongo�s
affidavit of service
filed on 10th August 1999. On that basis,
the plaintiff should not have applied for judgment in default of appearance
because the Writ
of Summons had not been duly indorsed. However, Mrs.
Tongarutu�s acknowledgement of Service on 30th June 1999 and
telling Mr. Nori of that fact would appear to be sufficient compliance with
Order 9, rule 12 of the High
Court Rules. I do not think so in terms of rule
12, which states -
�12. The person serving a
Writ of summons shall within three days at most after such service, indorse
on the writ the
day of the month and week of the service thereof, otherwise
the plaintiff shall not be at liberty, in case of non - appearance,
to
proceed by default; and every affidavit of service of such writ shall
mention the day on which such indorsement was
made. This Rule shall well as
other service�.
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Clearly, the avit of
service under this rule is filed to confirm the day and month indorsed on
the Writ of Summons.
The affidavit of service is not a substitute for the
indorsement on the Writ of Summons. In my view, the Plaintiff was not
entitled to apply for judgment in default of appearance. The steps taken by
the Plaintiff in moving his case forward
following non - compliance with
Order 9, rule 12 above were therefore wrong. Fortunately, no judgment in
default of appearance
has been granted as yet. Apart from that, was there
appearance in this case? The answer is that there was no formal appearance
in terms of filing a Memorandum of Appearance. Even in the absence of a
formal appearance there was no other communication
from the Defendant that
he intended to take part in the Plaintiff�s action. He however appeared in
person in the High
Court Registry as communicated to Mr. Nori by the
Registrar in a letter dated 12th August 1999. This letter did not
state details of his appearance other than saying he had come to file an
affidavit. According
to the Court File, the Defendant did file an affidavit
on 18th June 1999. The other affidavit was filed on 28th
February 2001. There is no other affidavit sworn by the Defendant and filed
in respect of this case. The Defendant however
wrote to the Registrar on 12th
October 1999 informing him of the hearing of the Plaintiff�s Summons filed
on 2nd September 1999 and that a defence would be delayed due to
the possibility that he would not qualify for legal aid from the
Public
Solicitor�s Office. In my view, the Registrar�s letter of 12th
August 1999 addressed to Mr. Nori was not evidence of appearance within the
meaning of Order 12 of the High Court Rules.
There must be an entry of
appearance. There was therefore no appearance entered by the Defendant in
terms of Order 12
of the High Court Rules. If there was no appearance, there
could not be a defence because a defence could have been filed only
after
appearance had been entered in the first place. These are two separate steps
in pleading. Did the Defendant have
a defence? In my view, Order 14 (1) (a)
of the Court Rules cannot be invoked until the Defendant has entered an
appearance
and the rest of the requirements in Order 14 (1) (a) of the High
Court Rules are complied with. In this case, Order 14 (1)
(a) could have not
cannot be invoked by the plaintiff because the Defendant had not entered
appearance to the Writ of
Summons in the first place. The question of a
defence being raised did not arise under Order 14 (1) (a) in this case. The
filing of the Defendant�s statement of defence on 13th October
1999 whilst out of time was unnecessary because first, the Defendant must
enter appearance but he had not in
this case. These reasons are in my view
sufficient to enable me to dismiss the Plaintiff�s application. The
Plaintiff�s
application is dismissed accordingly.
I now turn to the Defendant�s
application. As I have said, the Plaintiff never restored his Summons file
on 2nd September 1999 and he has not said why this is the case.
It is now more than a year since its adjournment on 19th October
1999. In this regard, the Defendant was entitled to proceed under Order 64,
rule 9 of the High Court Rules, which
he did on 11th June 2001.
The error, however, was that he asked the Court to strike out the
Plaintiff�s action for want of prosecution
if the Plaintiff failed to
prosecute his action within one month. As I have said, I struck out that
application because
the order sought was not in accordance with the
intention of Order 64, rule 9 of the High Court Rules. The Defendant has now
done it correctly. She however has failed to adduce evidence showing
inexcusable delay or intentional and contumelous
default on the part of the
Plaintiff. There is no evidence showing that inexcusable delay in this case
would prejudice
a fair trial of the issues in the Plaintiff�s action (See
Clara Rebitai v Francis Chow, R.E.G.S. Limited and F.C. Limited,
Onaga Corporation Limited ,and F. C.Limited, cc108/98). Mrs. Tongarutu�s
affidavit filed on 18th July 2001 is deficient in these issues. I
do not think the Defendant has made out a sufficient case to warrant my
agreeing
to his application.
I would also dismiss Defendant�s application. The effect of my dismissing the opposing
applications bons by both the Plaintiff
and the Defendant is that the Plaintiff�s
Writ of Summons must be amended to include provision for indorsment of
service
of the Writ. The usual practice is that failure to indorse service
of a Writ would entitle the Plaintiff to apply for extension
of time to
correct such omission. It is not an irregularity that can be waived.
Any judgment obtained on a Writ
th not indorsed in accordance with Order 9, rule 12 of the Hihe High Court
Rules can be
set aside. (See Hamp-Adams v Hall [1911] UKLawRpKQB 129; [1911] 2 K.B. 942). In
this case, the Writ of Summons filed on 5th May 1999 does not
have a provision for indorsement of service. It must be amended to include
this.
Order 2 of the High Court Rules
provides the For be used in this jurisdiction. In order to regularize
the position
of the parties, I would direct by order that the Plaintiff
within 7 days from today amend his Writ of Summons to include provision
for
indorsement of service and serve the amended Writ correctly upon the
Defendant. The other steps in normal pleading
practice under the High Court
Rules would follow suit in the normal manner. The Plaintiff�s action however
will be struck
out automatically in the event that the Plaintiff fails to
amend his Writ of Summons and serve it within 7 days as directed.
Errors
committed in practice by Solicitors always cost the litigant money in terms
of unnecessary costs to the litigant.
Order 65, rule 8 of the High Court
Rules gives recognition to this evil. I highlighted this concern in a ruling
on costs
in David Andrew v National Insurance & Poti
Wales
(cc 245/97) delivered on 23rd March 2001. It is always nice to
strive to do things efficiently and correctly according to the rules of
practice. Such
a good habit builds up one�s reputation within the legal
fraternity. One has a good name and that attracts business. One�s
legal
opinions become authoritative generally within his community. Having said
that, I feel that costs should be costs
in the cause.
The Orders are tha/span>
1. The Plaintiff�s
application be dismissed;
2. The Defendant�s
application be dismissed;
3 Plaintiff amend his
Writ of Summons to include a provision for indorsement of servicervice and serve
the amended Writ
of Summons upon the Defendant�s Solicitors within 7 days
from today;
ass="Mss="MsoNormal" style="margin-left: 28.8pt; margin-top: 1; margin-bottom: 1">
4. Normal steps in pleading
under the High Court Rules would apply after service oice of the writ of Summons;
<
5. The Plaintiff�s action be
struck out in the event that the Plaintiff fails to comply with Order 3
above.
6. Costs be in the cause.
I order accordingly.
F.O. Kabui
Judge
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