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Kuriti v Dovele Landowners Board of Trustees [2014] SBHC 95; HCSI-CC 101 of 2013 (2 July 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

RODRICK KURITI, RAYMOND POKA, JOHN MARK
Claimants

And:

DOVELE LANDOWNERS BOARD OF TRUSTEES
1st Defendant

And:

WESTERN PROVINCIAL EXECUTIVE GOVERNMENT
2nd Defendant

And:

WESTERN CUSTOMARY LAND APPEAL COURT
3rd Defendant

And:

ATTORNEY GENERAL
4th Defendant

Mr. G. Suri for the Claimants/Respondents.
Mr. C. Fakarii for the 1st Defendant/Applicant.
Mr. E. Kii for the 2nd, 3rd and 4th Defendants.

Date of hearing: 28 May 2014.
Date of Judgment: 2 July 2014.

RULING
Apaniai, PJ:

Introduction.

1. This is an application by the 1st defendant ("Applicant") for an order to reinstate its defence which was struck out by order dated 5 September 2013 ("Dismissal Order") for non-compliance with a self executing order made on 8 August 2013 ("Unless Order") requiring the Applicant to provide further and better particulars of his defence.
   
2. The Applicant also seeks consequential order, in the event that the application is granted, that it be given 21 days to provide the further and better particulars as requested and that the claim herein be consolidated with Civil Case No. 53 of 2013 on the grounds that both claims have raised the same issues and relate to the same subject matter.
   
3. The 2nd, 3rd and 4th defendants support the application.
   
4. The claimants ("Respondents") do not oppose the application for consolidation and have agreed that an order may be made to that effect. They, however, oppose the application to reinstate the defence.
   

Issues.

5. According to the Applicant, there are three issues that are to be considered in this application. The first issue is whether the defence should be restored. The second issue is whether extension of time should be granted to file further and better particulars, and, the third issue is whether this proceeding should be consolidated with Civil Case No. 53 of 2013.
   
6. In my view, the first and second issue are inter-related and I think the only issue to be decided is whether or not extension of time should be granted to file further and better particulars. If, for instance, that issue is decided in favour of granting extension, the re-instatement of the defence will naturally follow.
   

Rule 23.4, Solomon Island Courts (Civil Procedure) Rules 2007.

7. Where a party to a proceeding deliberately or sustainedly fails to comply with an order made in the proceeding, Rule 23.4 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") gives the court the power to either strike out the pleadings of the non-complying party, or extend the time for complying with the order, or give further directions, or make another order. The power provided for under this rule includes the power to make self executing orders (that is "unless" orders) in the event of non-compliance within a specified time.
   

Principles governing "unless" orders.

8. The law relating to "unless" orders has been the subject of various decisions both locally and in other overseas jurisdictions. These decisions have been well covered and explained by His Lordship, Palmer J, (as he then was) in Mega Corporation Ltd v Lotinta[1] ("Mega").
   
9. The previous position was that "unless" orders were similar to final orders in that if the action agreed to be taken is not taken by the date fixed, then the claim comes to an end and the court becomes functus officio so that the only way out is to appeal the decision.
   
10. That was the view expressed in Whistler v Hancock[2] ("Whistler"). In that case, an order was made that unless a statement of claim was delivered within a week, the claim would be dismissed. The order was not complied, however, an application for extension of time to comply with the order was granted allowing the defendant further time to deliver the statement of claim.
    
11. On appeal against the extension of time, Fry, J. allowed the appeal holding that the judge below had no jurisdiction to grant extension of time. The plaintiff appealed to the Divisional Court which rejected the appeal. In his judgment, Cockburn CJ, said:-
    

"This is a very plain case. The plaintiff obtained an order that unless the statement of claim was delivered within a week the action should be at an end. The plaintiff took out a summons to set aside the appearance, and he could have obtained an order to that effect before the week was out, he would have been the victor; but before his summons could be heard he fell under the operation of the order dismissing the action, and the action was at an end. It cannot be contended that the taking out of a summons to set aside the appearance in the meantime could keep the action alive when by the operation of the Master's order it was defunct. For this reason, I think the Master had no jurisdiction and the order of Fry J was right."

12. Later cases have also followed the decision in Whistler[3].
    
13. However, the position has now changed since R v Bloomsbury and Marylebone County Court, ex parte Villerwest Ltd[4] ("Bloomsbury") where it was held that the court had power to extend time. In that case, Lord Denning, in his attack on the previous position, said (at p. 900):-
    

"I have one further observation to make. It is about Whistler v Hancock and King v Davenport. It seems there to be suggested that if a condition is not fulfilled the action ceases to exist, as though no extension of time can be granted. I do not agree with that line of reasoning. Even though the action may be said to cease to exist, the court always has power to bring it to life again, by extending time. In my opinion the county court judge had ample jurisdiction to make the order he did".

14. A similar decision was made in Samuels v Linzi Dresses[5] ("Samuels") where the Court of Appeal ruled that Whistler is no longer good law. Lord Roskill LJ, said (at p. 812):-
    

"To say that there is jurisdiction to extend the time where an "unless" order has been made and not complied with is not to suggest, let this be absolutely plain, that relief should be automatically granted to parties who have failed to comply with the orders of the court otherwise than on stringent terms either as to payment of costs or as to bringing money into court or the like. Orders as to time, and in particular as to time for delivery of pleadings and particulars, are made not to be ignored but to be complied with. In the present case, long before the problem caused by the 1978 Christmas holidays arose, there has been serious delay in complying with various orders, and the defendants were at mercy when they came before Judge Hawser. They had not done that which they ought to have done. They have not, save perhaps at the very last moment, deserving of any sympathy. But at the last moment they had made a real effort to comply with the order and they were perhaps unlucky that their efforts did not meet with success.

In my judgment, therefore, the law today is that the court has power to extend the time where an "unless" order has been made but not complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily it is a question for the discretion of the Master or the judge in chambers whether the necessary relief should be granted or not."

15. Samuels has been reaffirmed and followed in later cases[6], including Re Jokai Tea Holdings Ltd[7] ("Jokai") where it was held that the relevant question to ask when deciding the consequences of failure to comply with an "unless" order is whether the failure is intentional and contumelious or whether the party guilty of the failure had demonstrated a lack of intention to ignore or flout the order but that the failure was due to extraneous circumstances.
    
16. In summary, the current position in regards to "unless" orders is that expressed by Lord Roskill in Samuels. That is to say, the court has the power to extend the time where an "unless" order has not complied with, but that power must be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. In other words, whether or not to grant an extension is a matter for the discretion of the court and in exercising that discretion, the court needs to consider whether the failure was intentional and contumelious or whether there was no intention not to comply with the order but that the failure was due to extraneous circumstances.
    

The present proceedings.

17. I now turn to the present proceedings.
    
18. On 8 August 2013, an "unless" order was made requiring the Applicant to file and serve on the Respondent's solicitor within 14 days of the date of the order answers to the request by the Respondent for further and better particulars of his defence.
    
19. The Applicant's then solicitor, Mr. Samani Logara Dausabea, did not appear at the hearing when the order was made. In fact, Mr. Dausabea was not qualified to represent litigants in court at that time because the Registrar had refused to issue him with any practising certificate in 2013. That may have been the reason for his non-appearance at the court hearing when the order was made.
    
20. It also appears from the material before the court that Mr. Dausabea had been taking turns working with BETS Legal Services owned by Ben Etomea and ASG Lawyers, a firm of lawyers whose principal partner is Mr. Allan Hou. Legal practitioners would be well advised to take particular note of the requirements of section 18(1) of the Legal Practitioners Act which prohibits legal practitioners from permitting their names to be used in connection with legal proceedings by persons who are not legal practitioners or from allowing their names to be used by a non-legal practitioner to do legal work for fees or to carry on the profession of a legal practitioner with a person who is not a legal practitioner, etc. There are consequences that will follow if these rules are not adhered to.
    
21. However, Mr. Petrie Sute, an agent of the Applicant, was present in court when a number of orders were made in regards to this claim. A few days after the making of those orders, Mr. Sute had a conference with Mr. Dausabea during which Mr. Dausabea informed him about the request by the Respondent for further and better particulars. Mr. Dausabea, however, told Mr. Sute that he would rely on a sworn statement filed by the Applicant in Civil Case No. 53 of 2013 to reply to the request for further and better particulars. Mr. Sute said that Mr. Dausabea never informed him about the "unless" order[8].
    
22. Mr. Sute said that he did not know at that time that Mr. Dausabea was not qualified to represent clients in court. He said that had Mr. Dausabea informed him of the "unless" order and the fact that he was not qualified to act as a legal practitioner, he would have told the Applicant and they would not have engaged Mr. Dausabea and they would have also ensured that the "unless" order was complied with.
    
23. In October 2013, Mr. Sute briefed the chairman of the Applicant, Mr. Pye Roberts Kuve, about the little progress being made by Mr. Dausabea in regards to this proceeding. This was confirmed by Mr. Kuve in his sworn statement filed on 9 May 2014.
    
24. In November 2013, Mr. Kuve instructed Mr. Sute to retrieve the Applicant's case file from Mr. Dausabea. The Applicant then engaged Rano & Company as their solicitor in the place of Mr. Dausabea. Rano & Company then filed a notice of change of solicitor on 19 November 2013. They then filed this application on 11 February 2014.
    
25. Mr. Kuve said that he was not aware of the "unless" order made against the Applicant.
    
26. In the light of these facts, I am satisfied that the failure by the Applicant to make a reply to the request for further and better particulars was not intentional and contumelious and that there was no intention on the part of the Applicant not to comply with the order.
    
27. I am also satisfied that the failure to comply with the "unless" order was due to extraneous circumstances, that is, the conduct of Mr. Dausabea in not being frank and open about his disqualification to act as a legal practitioner; his failure to properly brief the Applicant about the "unless" order; his delay in not progressing the case further; and, his failure to reply to the request for further and better particulars or to seek extension of time to make a reply to the request.
    

Decision and orders.

28. It follows that this application ought to succeed. It seems to me that the circumstances giving rise to this application justify that the order for costs should be costs in the cause.
    
29. Orders:-
    

[1] This application is granted.

[2] The Applicant shall file and serve the reply to the request by the Respondent for further and better particulars within 14 days from the date hereof.

[3] The Applicant's defence is re-instated.

[4] This proceeding and Civil Case No. 53 of 2013 are consolidated.

[5] Costs in the cause.

THE COURT

_________________________
James Apaniai
Puisne Judge.

^[1] [2003] SBCA 8; CA-CAC 006 of 2003 (14 July 2003).
^[2] (1878) 3 QBD 83.
^[3] See Wallis v Hepburn (1878) 3 QBD 84; King v Davenport [1871] UKLawRpHL 9; (1879) 4 QBD 402; Script Phonography Co. Ltd v Gregg (1890) 59 LJ Ch. 406.
^[4] [1976] 1 All ER 897.
^[5] [1980] 1 All ER 803.
^[6] See Bacal Contracting Ltd v Modern Engineering (Bristol) Ltd [1980] 3 All ER 655; Grand Metropolitan Nominee (No. 2) Co. Ltd v Evans [1992] 1 WLR 1191.
^[7] [1992] 1 WLR 1196.
^[8] See sworn statement by Petrie Sute filed on 11 February 2014.