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Pinnacle Enterprises Ltd v Attorney General [2019] SBHC 78; HCSI-CC 73 of 2015 (4 October 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 73 of 2015

PINNACLE ENTERPRISES LIMITED
First Claimant

ZHANG JIA SZETU
Second Claimant

V

ATTORNEY GENERAL
(Representing the Commissioner of Lands and the Registrar of Titles)
First Defendant

ANTHONY CHEE MING WONG
Second Defendant

Date of Hearing: 19 July 2019
Date of Ruling: 4 October 2019

Mr. L Kwaiga for the First and Second Claimant
Mr. S Banuve for the First Defendant
Mr. J Taupongi for the Second and Third Defendant

RULING

Faukona, PJ: A claim for resumption and rectification of titles in the fixed term estates of PN: 191-041-150 (Lot 1543) and PN: 191-041-141, (Lot 1534), registered in the name of the first Claimant was the major issue among others to determine. The Claimant claims that the registration of those lands were unlawful, hence ought to be rectified pursuant to section 229 (1) of the Land and Titles Act. The claim was in fact filed on 11th March 2015.

2. The second Defendant filed his defense on 1st June 2015 and the first Defendant filed its defense on 1st June 2015 as well. On 1st December 2016, the first Defendant filed its amended defense which was agreed upon by the Claimants (1) and (2), but without the leave of the Court.
3. On 1st December 2016, as well, the Claimants and the Attorney-General endorsed a regime of Consent Orders. The Second Defendant was not a party to the Consent Orders.
4. On 12th January 2017, the second Defendant filed an application to set aside the Consent Orders perfected on 1st December 2017,
5. On 9th February 2017, the Claimants filed an application for summary judgment.
6. On 13th October 2017, the second Defendant filed an application for leave to amend his statement of defense which was disclosed and contained a counter-claim as well.
7. On 25th October 2018, in the presence of all the Counsels, the Court set a hearing date for 25th January 2019, to hear the only one application, the application to set aside the Consent Orders.
8. Following a return date being fixed the Registrar of the High Court then issued notice to all parties and Counsels for hearing on 25th January 2019.
9. On 25th January 2019, no other Counsel or party was present except Mr Kwaiga who represented the Claimants. In the absence of all other parties, and their Counsels, Mr Kwaiga therefore applied for judgment against the second Defendant for want of prosecution.
10. Mr Kwaiga submitted that he heard nothing from other parties and Counsels including whether they could attend Court hearing or not. He further submitted that none of the Counsels contacted him to explain their reason for absence on the date of Hearing.
11. Apart from that there was no information received from the Counsels explaining their reasons for not attending Court hearing. There was no courtesy to the court call by phone or email of any none attendance.
12. In the light of those facts the Court therefore granted judgment against the second Defendant by dismissing his application to set aside the Consent Orders.
13. It was against that dismissal which prompted the second Defendant to file this application to re-instates his application to set aside.
14. The Counsel representing the second Defendant has exposed his reasons for not attending court in his sworn statement filed on 19th March 2019.
15. In reading the sworn statement I would able to conclude that the Counsel has relied on a number of reasons. One is he didi not have a diary so that he would enter the date of hearing.
16. That definitely is a lay excuse that cannot be accepted. Each Counsel is expected to be vigilant in ensuring he records in a diary or system adopted to remind him of his hearings and trial dates. It is a function left entirely on him and not his client or the Court. Furthermore, it is a task that exists within his control, is not something impacted on him from outside which he does not have control over. Therefore such excuse cannot be accepted because of its unreasonableness.
17. The second reason is that the Counsel Taupongi did not receive the notice of hearing. He submits that he was busy establishing his law firm in December 2018 and January 2019. And that any notice issued should have been place on pigeon hall of Law Chambers in respect of this case. Apparently as it deemed, the Counsel had never checked with Michael Pitakaka Law Chambers. Had he done so he would have attended the hearing, and or even filed a notice of change of advocate before hearing? However he did not at all.
18. If there was any miscommunication between Counsel Taupongi and Michael Pitakaka Law Chambers, then who is to be blamed, he himself. It does not mean you establishing a company and ignore your diary for two months. There is no justification in that sense. That failure is something he could not have done, or control over, and no one else. He should have done better in personal management of his own cases.
19. On the issue whether the orders of 25th January 2015 were unfair or not, for sure it is procedural and not unfair. Rule 9.13 applies in this situation.
20. It was the second Defendant’s application to set aside the previous default judgment order. Neither the second Defendant attended nor his Counsel with good reasons. So that Court has to dismiss the application by the second Defendant on the ground of want of prosecution.
21. Whatever steps the Counsel for the Defendant obliged to take after this ruling, is an option left on him to decide. This court should not pre-empt any further proceedings the second Defendant ought to take. Whatever the course may be, it should be dealt with as it comes. Meantime I must dismiss this application with cost.

ORDERS:

1. Application to set aside default judgment dismissed.
2. Cost of this application is to be paid by the second Defendant to the Claimants or standard basis.

The Court.