High
Court Of Solomon Islands
Before:
F.
O. Kabui, J
Civil
Case No: 055 of 2000
Hearing:
15th August 2001
Ruling:
16th August 2001
J.
Apaniai for the Plaintiff
A. Nori
for the Defend
F.
Waleanisia for Attorney-General
RULING
(Kabui,
J):
By Summons filed on 26th July 2001, the Plaintiff seeks the
following Orders-
>1.
&nbp; &nnbsp;
That the folg poif law raised by the Defence Defendant fant filed iled hereiherein on 3rd
April 2000 be set down for hearing and disposed of before trial, that is to
say:-
(a)
an>
Whether laintcted vires its power under the Solomon
Isl Islands ands National Provident Fund Act (Cap. 109)( the Act�)
in of granting to
the Defendant the loans spes specified in the Amended Statement of Claim filed
herein on the 17th March 2000 �the Loans�).
(b)
p;&nbhether charging oing oing of interests and taking of
ortgages by the Plaintiff as security for the Loans were ultra wires the
powers of thof the Plaintiff under the Act.
lass="MsoNorsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1" align="left">
(c)
Whether the Lwans mare by e by the Plaintiff in
brof
rust.n>
(d)
& p; Whether the Lohe Lohe Loans were unlawful and
2.
Such further or other orders as the Court s juspan>
3.
That the Defendant pay the costs of the Plaintiff of, and
&nbssp;
in
connection with, this application.
clasoNormtyle=in-to margttom: 1" : 1" alignalign="lef="left">
t">
Brief
Background
The
Plaintiff filed a Writ of Summons on 28th, February 2000 2000 together
with a Specially Indorsed Statement of Claim against the Defendant. An
Amended Statement of
Claim was filed on 17th March 2000. A
further Amended Writ of Summons and statement of Claim was filed on 4th
April 2001. The Plaintiff�s claim is based upon a number of loan agreements
entered into between the Plaintiff and the
Defendant between August 1987 and
August 1994. The Writ of
Summons
and the Statement of Claim were served upon the Defendant on 28th
February 2000 after which the Defendant entered appearance on 2nd
March 2000. The Defendant denied liability based upon legal grounds set out
in paragraph 2 of it�s defence filed on 3rd April 2000. The
Amended Statement of Claim was served upon the Defendant�s Solicitor on 17th
March 2000. The recent Amended Writ of Summons and Statement of Claim filed
on 4th April 2001 does not seem to have been served upon the
Defendant or its Solicitor. There is no evidence of service in the Court
File. The order for directions was made on 9th August 2000. The
Attorney-General was added as the Second Defendant in this action on 14th
March 2001 by a Court Order of that date. Answers to interrogatories were
filed on 5th July 2001.
The
Plaintiff�s Summons
<
/p>
In this
case, the Plaintiff�s Summons is reallyeally a Summons for further directions as
the only steps left unfilled
as directed by the Order for directions on 9th
August 2000 are the listing of the action and the service of Certificate of
Readiness on all the parties to the action.
This Summons was filed under
Order 27, rule 2 of the High Court (Civil Procedure) Rules 1964 (the High
Court Rules).
This rule enables any party in an action with the consent of
the other party or by Court order to raise a point of law and
have it
determined by the Court before the trial takes place. Here the Plaintiff is
asking the Court to set down for
hearing and determination of the legal
grounds upon which the Defendant bases its defence. These are the points of
law
to be determined before trial takes place.
Determination by the Court
Counsel
for the Plaintiff, Mr. Apaniai, arghat in terms of the answersswers to the
interrogatories file on
5th
July 2001, the Defendant had admitted that the loan agreements between the
parties had been executed, the loan monies
had been received, charges were
created over the Defendant�s properties as security for the repayment of the
said loans,
a bill of sale had been registered over the Defendant's chattels
as security and failure to repay the loan. On this basis,
Mr. Apaniai argued
that as to facts, there was not dispute about them and therefore the
Plaintiff�s case clearly met
the purpose of Order 27, rule 2 of the High
Court Rules. Counsel for the 1st
Defendant Mr. Nori, argued the opposite. He stressed that in this case facts
were not agreed and that evidence could be
called at trial to prove the
unlawfulness f the NPF Board�s decision to finance the loans under the
General Reserve Fund
and the disbursement of the loans. I think the starting
point is Order 27, rule 2 of the High Court Rules. Rule 2 states �
��2. Any paall be entitled to raise byse by his pleading any point of law,
and any point so raised shall be disposed of
by the Court at or after the
trial, provided that by consent of the parties, or by order of the Court on
the application
of either party, the same may be set down for hearing and
disposed of at any time before the trial�...
The
important word in this rule is �pleading�. Any point of law for
consideration must be raised by the pleading of that
party wishing to invoke
this rule. Order 1, rule 1 of the High Court Rules defines the word
�pleading� as including
�any
petition or summons and also incl includes the statements in writing of the claim
or demand of any plaintiff, and
of the defence of any defendant thereto, and
of the reply of the plaintiff to any counter-claim of a defendant;
In terms
of Order 32, rule 1(a) of the High Court Rules, the Plaintiff must take out
a Summons for directions 14 days
from the time the pleadings are deemed to
be closed, in this case, the Plaintiff�s reply was filed on 1
May 2000. T00. The Summons for directions was filed on 17th July 2000
and the Order for directions made on 9th August 2000.
class="Mso="MsoNormal" style="text-align: left; margin-top: 1; margin-bottom: 1">
The
pleadings must be deemed to have been closed at the date date the reply was
delivered. The evidence so far up to this
stage is the evidence upon which
the point of law must have determined under the procedure in Order 27, rule
2 of the
High Court Rules because this is what rule 2 says. This must be the
case because in practice, summons for directions taken
out after pleadings
have closed, do not need to b supported by further affidavit evidence in
addition to the pleadings.
Here, it could appear that the Plaintiff decided
to seek further directions on the basis of answers given by the Defendant
in
response to interrogatories filed b the Plaintiff supported by affidavit
evidence of the Plaintiff�s Solicitor, Mr.
Apaniai filed on 27th
July 2001 and by Mr. Veo filed on that same date. Mr. Veo�s evidence should
be reserved for the trial proper as far as
it is relevant to the issues
question. Even disregarding the evidence beyond the pleadings proper would
still not assist
the Plaintiff because in the pleadings, the Defendant
denies liability in paragraph 3 of the Defendant's defence. Clearly,
the
Defendant would envisage evidence to be called at the trial on the issues in
question. The facts as disclosed in
the pleadings are not agreed as
suggested by Mr. Apaniai. In the result, I reject the Plaintiff�s
application. The Application
is dismissed with costs.
F. O.
Kabui
Judge
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