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Mekab v Kirumwei [2019] SBHC 62; HCSI-CC 233 of 2012 (30 August 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 233 of 2012

JAMES MEKAB, SERAH MEKAB, JEFFREY MEKAB, TREVOR MEKAB, CHRISTAR MEKAB AND CHRISTINA MEKAB
(Trading as Good Luck International Agency)
Claimant

V

MURIEL KIRUMWEI
First Defendant

LUNINGNING GABRINO, FERNANDO AGUILAR AND EDMUNDO MAYAMAYA
Second

Date of Hearing: 11 June 2019
Date of Ruling: 30 August 2019

Mr. D Nimepo for the Claimants in initial claim (amended)
Mr. P Afeau for the Defendants/Claimants in Counter Claim

CLAIM AND COUNTER CLAIM STRUCK OUT FOR FAILURE TO COMPLY WITH DIRECTION ORDER OF THE COURT

1. This 2012 case is not ready for trial in 2019. I took carriage of this matter in 2016. Direction orders after direction orders went out to prepare file for trial but went unheeded. As far back as 4^th May 2016, in a Ruling I delivered, I ordered cost against Mr. Nimepo personally. I noted that counsel was responsible for the inordinate delay in the case. I was not alone. For before me, Judges Faukona and Mwanesalua have also made cost orders against claimants counsel previously (See order by Mwanesalua J perfected on 25^th February 2013 and order by Faukona J perfected 11^th March 2014).
2. Then on 14^th July 2016, I conducted Pre Trial Conference (PTC). Mr. Afeau indicated he was ready for trial. Mr. Nimepo was not ready for trial. And had not even served Mr. Afeau with claimants defence to counter claim he filed on 27/01/2015. I then adjourned to 29/07/2016 for a further PTC. Meantime, I listed trial for 1/08/2016 at 9:30 am. On 29/07/2016 at PTC, I had to vacate the trial listed for 1/08/2016, because again, Mr. Nimepo was not ready. Mr. Nimepo had yet to serve the defence on Mr. Afeau. Counsel Nimepo said he needed further time to comply with orders and to prepare for trial. I then adjourned to allow counsel prepare the matter for trial. And to restore the file on 3 days’ notice, once matter is prepared for trial. Preparations that should have been completed by PTC on 14/07/2016 were still outstanding by 29/07/2016. So another adjournment. Instead of preparing for trial thereafter and to be restored on 3 days’ notice, file went into hiding. More than a year later, on 17/10/2017, I checked and matter was not prepared for trial. Now I must say when we adjourn and matter to be prepared for trial, counsel ought to know and ought to carry out the necessary trial preparations. Those trial preparations were clear at PTC adjournments. By 17/10/2017, I again adjourn the matter and say the file can only be restored once trial preparations are completed. Then on 23/01/2018 claimants filed an amended claim. Minor amendments on the reliefs sought: damages and loss of properties to be assessed. On 5/02/2019, I mention the matter, when Mr. Afeau raised the issue that amended claim was filed without leave. But took no real objections and instead agreed to trial preparation directions. The approach by Mr. Afeau not to object was sensible because, I can always assess damages after conclusion of trial. On 9^th April 2019, at motions, I checked and the last trial preparation orders were not complied with. Mr. Nimepo was also absent on 9^th April 2019. So I extended the last orders not complied with by perfected orders of 9^th April 2019, though Mr. Nimepo did not appear. I issued orders to prepare matter for trial (Order perfected 9/04/2019). When I checked that order on 11/06/2019 motions, nothing was prepared for trial, with Nimepo again absent.
3. Therefore the order perfected on 9/04/2019, becomes effective under Order No 4 by 11/06/2019. Order No 4 stated that if nothing happens and the matter is not ready for trial, by full compliance with extended orders, matter (amended claim) will be struck out including, the counter claim.
4. Neither of the counsel raised with court any issues impeding smooth trial preparations, under Order 5, prior to mention of the matter today (11/06/2019). What it means is that after monitoring of the direction orders today (11/06/2019), both the initial amended claim and the counter claim are not ready for trial. Direction orders are orders of the court. Direction orders must be recognised as such. Directions orders are not mere administrative management directions that can be taken lightly if inconvenient. This matter is taking far too long to conclude, just because directions orders meant to prepare the matter for trial have not been complied with. Non-compliance goes back to year 2016. It is not acceptable, that direction orders are not complied with in 3 years since 2016.
5. Accordingly, I struck out the initial amended claim and counter claim under Order No. 4 of the orders perfected on 9/04/2019. Parties meet their own costs.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE