EXTENSION
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The Court, as advanced by
Sugden in submission, that itpower only under Order 64 R 64 Rule 5 to
extend, which I agree,
however, in addition, the Court still has inherent
jurisdiction to extend where and when the nature of the matter requires
it
to be just to extend. Extension can only occur, for extenuating
circumstances beyond the control of the defaulting
party in preventing the
obedience of an unless order or; the defaulter non-compliance was far more
beyond the control
of the defaulter. Otherwise, a defaulter has no excuse
not to comply with an unless order. On evidence as adduced, I am satisfied
that Order No. 1 of 20th March 2000 was complied with except the
Board minute of the 5th January 1999; the sale agreement and the
legal opinion.
DISOBEDIENCE
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In explanation, the evidence of Alilee, was that he tried
is best to comply with the order. I cannot blame him for twor two reasons;
the
order was quite too wide to actually be certain which document were
required, and the phrase �full discovery� of any document as in order
No. 1 of the 20th March 2000 will reflect that. In his evidence,
the case continue to dragged on and on, he was not sure which document he
should provide in compliance with the order; and secondly for a lay person
as him, he should have been assisted very much
by some other person with
legal understanding to assist him to retrieve the required relevant
documents. In his evidence
he appeared to try his best to provide what
document he can provide in compliance with order of the 20th
March 2000. Likewise, Timothy Lasekula, by Alilee�s evidence, was the person
in-charge of the case, he also tried his
best to retrieve document relevant
to the case from Malsungai. Malsu in his affidavit cont confirmed that
Lasekula did
ask him for document relevant to the case. Malsungai was the
former chairman of the board. And suhe may have too, some relevant
document. But as expreexpressed by Lasekula, it was not easy to retrieve such
document. Again that shows the difficulties
in complying with Order No. 1 of
the 20th March 2000. I can only draw a prima facie conclusion
that the defendant tried his best to comply with that order. As a result
the
remaining document that remain to discovered were the board minute of the 5th
January 1998, the sale agreement and the legal opinion.
I was invited by Hurley�s submission, that although the
defendant did not provided the above document, the plaintiff was always
in
possession of the board minute of the 5th January 1998, the sale
agreement and the legal opinion. The plaintiff could not be prejudice to the
usage of such document
to their advantage. Even though this was not in
evidence, there is some reliance by the Court on counsel in leading the
Court. And as those documents are now exposed in this proceeding, there is
no need to advance further to discoveries of
both documents. Therefore, left
is the number of legal opinion.
There was no clear evidence as to what is that legal
pinion referred to. Sugden advances that it was one or two legal advice,
while Hurleyurley referred to only one legal advice. And that was in the letter
of the 3rd October 1997 (which he referred in the
interrogatories, letter marked E5 should be dated 7th November
1997 and not 3rd October 1997). And submitted that, this was the
legal opinion sought and Hon. Vohor was advised accordingly by that letter.
He advances further, that if Sugden was referring to two legal advise, then
it was up to him to disclose to this Court
those advice, to show that the
defendant disobeyed the order of the 20th March 2000. I can only
conclude that, that opinion was already furnish by the letter of 3rd
October 1997 (now 7th November 1997).
I find that he had a reasonable excuse for non �
compliance and should not be penalizr trying his best to complyomply with
the unless order. Therefore, in the exercise of my inherent jurisdiction it
is just to extend the order of the 20th of March 2000 for another
14 days to run from today. However, if he fails, the unless order can be
enforced against him.
On this finding the case should now proceed to trial
for the court to determine the rights of the party on the real issue in
the
substantive matter, which is the interest of the parties.
lass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
R. MARUM MBE
JUDGE
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