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Fera v Maomatekwa [2011] SBHC 63; HCSI-CC 91 of 2009 (16 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, J)

Civil Case No. 91 of 2009.

BETWEEN:

FERRIS FOLI FERA
Claimant

AND:

CLEVAN MAOMATEKWA
First Defendant

AND:

ATTORNEY GENERAL(Representing Commissioner of Lands)
Second Defendant.

Date of Hearing: 12th August 2011.
Date of Ruling: 16th August 2011.

Mr Marahare for the Claimant
No one representing the First Defendant
Mr Key for the Second Defendant

RULING

Faukona J: This application was filed on 27th April, 2011, to set aside the striking out order made by the Registrar of the High Court on 22nd February 2011, and to reinstate the proceedings.

2. By consent the counsels agreed to proceed in the absence of the first Defendant.

3. According to records, the reason for striking out order, was premised on the fact that the Claimant had failed to appear and prosecute the case on two occasions, that was on 7th December, 2009 and 24th June, 2010, when the matter was called.

4. Upon making the Order the Registrar of the High Court made reference to Rule 9.73 which specifically stated that if no steps been taken in a proceeding for 6 months, the Court may give the Claimant notice to appear to show cause why the proceeding should not be struck out.

5. Strictly speaking the Registrar has no power under Rule 9.73 except for the Courts. However, he may resume the same responsibility by virtue of Rule 19.6, which in any event where an application arises by any party, the Registrar may order that the proceedings be reinstated on terms and conditions specified under Rule 19.6. And for direct conveniences, this application could have been filed and heard by the Registrar who had made the initial order.

6. Nevertheless Rule 9.72 provides that the Court has parallel power to deal with strike out proceeding as set out in Rule 19.5 and may hear and determine any application for reinstatement pursuant to Rule 19.6.

7. Consequent upon that order, the Claimant applies to Court invoking Rule 19.6 for an order reinstating the proceeding. The Claimant relies on the sworn statement of Mr. Patrick Lavery filed on 26th April, 2011, the former Solicitor representing the Claimant.

8. On paragraph 5 of Mr Lavery sworn statement he deposed that he had ceased to take any active part in the conduct of the case due to illness, and closing of his office due to the death of his wife. Paragraph 6 he deposed that he denied receiving any notice of striking out, or any notification to the Claimant.

9. Mr Key argued that he received a copy of the notice of hearing to show cause on 14th February, 2011. He is amazed why Mr. Lavery did not receive his copy. He attended the hearing and it seemed this case had not been activated for 15 months. The order made by the Registrar was what he saw fit considering the circumstances of the case.

10. I have heard the submissions and have read Mr Lavery's sworn statement and all other documents in the file. It is true the case was inactivated for 15 months until notice of change of advocate was filed on 15th April, 2011. However, I noted from the records that Mr. Lavery did not attend Court on 7th December, 2009, because he was ill.

11. Quite understandable Mr Lavery's wife died towards the end of 2010. Since the beginning of 2011, I have not seen him in Court. That explains the situation that he must have been ill and perhaps due to the death of his wife that he has closed his office for business as well.

12. The notice to show cause was issued on 11th February and the case was heard on 22nd February, 2011. That month until now Mr. Lavery is still not playing any active role in any case. I accept his evidence as being genuine and truthful.

13. On the issue of merit, suffice to say that a letter dated 5th September, 2005, written by the father of the first Defendant, addressed to the Claimant, admitted in consequence that the Claimant had paid for the land and wish to refund all the monies he received. There was no assertion that the Claimant accepted the termination. Apart from that there are other issues as resumption of the land in accordance with the terms of the grant. These are issues required to be considered when the substantial claim is heard. I'm afraid to deal with them now will pre-empt the final determination.

14. I am satisfied on the evidence that, Mr. Lavery nor the Claimant were aware of the notice of hearing. Since that time until now Mr Lavery has not actively involved in any case. I therefore rule that the case be reinstated.

Orders of the Court.

(1). Order that striking out order dated 22nd February, 2011, be set aside and the case be reinstated.

(2). The Claimant to revive the case within 14 days.

(3). Cost in the cause

The Court.