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Omex Ltd v Malanga [2001] SBHC 169; HCSI-CC 109 of 2000 (15 May 2001)

CC No 109, 2000, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 109 of 2000

OMEX LIMITED

-v-

JOSEPHALEVE MALANGA & OTHERS

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 109 of 2000

Hearing: 2 May 2001
Ruling: 15 May 2001

J. Katahanas for Plaintiff
C. Ashey for Defendant

MURIA CJ: In this summons the plaintiff seeks to have the second defendants’ Defence and Counter-Claim struck out for non-compliance with the order of this Court made on 2 March 2001. By virtue of that order the second defendants were ordered, amongst other things, in paragraph 2 as follows:

“2. The Second Defendants shall deliver the proper particulars of paragraphs 4,8,21 (e), 21 (f) and 21 (g) of the Defence and Counterclaim as are sought in paragraphs 1 (k), (l), and (m), 3 (c), 7 (d), 7 (e), and 7 (f) of the Plaintiffs Request for Further and Better particulars filed on 19 July, 2000 within 21 days of this order.”

When the plaintiff filed its summons on 3 May 2001, no proper particulars had yet been filed by the second defendants. However on the day of the hearing of this application the second defendants filed what is said to be the second defendant’s particulars of paragraphs 4, 8 and 21 (e), (f) and (g) of their Defence and Counterclaim. Mr. Katahanas contended that the particulars now filed by the second defendants are insufficient and are not in compliance with the Order of the Court made on 2 March 2001. Thus, Counsel has urged the Court to strike out paragraphs 4, 8 and 21 (e), (f) and (g) of the Defence and Counterclaim.

Issues

In the light of the contentions by the parties, the issues now before the Court are whether the particulars as ordered by the Court to be delivered by the second defendants are sufficient to comply with the Order of the Court and if not, whether the Court, in the exercise of its discretion, should strike out the paragraphs of the Defence and Counterclaim referred to, namely, paragraphs 4, 8 and 21 (e), f) and (g).

Whether the particulars supplied are sufficient.

The best way to start considering this issue is first to look at the particulars requested. By its Request filed on 19 July 2000 for Further and Better Particulars of the Defence and Counter-claim of the second defendants, the plaintiff specifically requests further and better particulars of paragraphs 4, 8 and (e), (f) and (g) of the Defence and Counterclaim. The matters requested are set out in paragraphs 1 (k), (l) & (m), 3 (c) and 7 (d), (e) and (f) of the Request and the best way to see what has been requested is to set them out here:

“1. As to paragraph 4 of the Defence:-

(k) If the Consent was written or partly written identify the writing and state where it may inspected;

(l) If the Consent was oral or partly oral state:-

(i) the date of the Consent;

(ii) the place at which the Consent was given;

(iii) by whom on behalf of the Second Defendants was the Consent given and to whom on behalf of the First Defendants and/or the Plaintiff was the Consent given;

(iv) the substance and effect of all conversations relied upon as constituting material terms of the Consent;

(m) If the consent is evidenced by Conduct, state with full particularity all the facts, matters and circumstances relied upon as evidencing the Consent;

3. As to paragraph 8 of the Defence:-

(c) If the Practice was written or partly written identify the writing and state where it may inspected and identify the parties thereto;

7. As to paragraph 21 of the Counterclaim:-

(d) As to paragraph 21 (e) of the Counterclaim, state with full particularity all the facts, matters and circumstances upon which the Second Defendants rely in alleging that:-

(i) the Plaintiff refused or neglected to perform its obligations under the Forest Resources and Timber Utilisation Act and the TRA including but not limited to:-

(a) particulars of each and every instance of alleged refusal or neglect to perform obligations under the Forest Resources and Timber Utilisation Act;

(b) particulars of each and every alleged refusal or neglect to perform alleged obligations under the TRA identifying each of the alleged obligations contained in that TRA which purportedly bind the Plaintiff;

(ii)the Plaintiff is a assignee of the TRA.

(e)As to paragraph 21 (f) of the Counterclaim:-

(i) Was the consent therein referred to (“the Consent”) written or oral or partly written or evidenced by conduct;

(ii) If the Consent was written or partly written identify the writing and state where it may be inspected;

(iii) If the Consent was oral or partly oral state:-

(a) the date of the Consent;

(b) the place at which the Consent was given;

(c) by whom on behalf of the Second Defendants was consent given;

(d) the substance and effect of all conversations relied upon as constituting material terms of the Consent;

(iv) if the Consent is evidenced by conduct, state with full particularity all the matters, facts and circumstances relied upon as evidencing the consent and the request therefore;

(v) state with full particularity all the facts matters and circumstances upon which the 2nd Defendants rely on alleging that the 2nd Defendants were entitled to be paid by the Plaintiff, a share of the monies paid by the Plaintiff under the LMA.

(f) As to paragraph 21 (g) of the Counterclaim, state with full particularity:-

(i) The losses which the Second Defendants alleged they have suffered by virtue of the conduct of the Plaintiff including the nature and quantum of each and every such loss, the method of calculation of same, and the basis upon which the 2nd Defendants claim to be entitled thereto;

(ii) The environmental damage which the Second Defendants alleged they have suffered by virtue of the conduct of the Plaintiff including particulars of the nature and quantum of each and every such damage, the method of assessment of same, and the basis upon which the 2nd Defendants claim to be entitled thereto;

(iii) The lost benefits under the Forest Resources and Timber Utilisation Act which the Second Defendants allege they have suffered by virtue of the conduct of the Plaintiff including particulars of the quantum of each and every such lost benefit, the method of calculation of same, and the basis upon which the 2nd Defendants claim to be entitled thereto.

The second defendants’ answers to the plaintiff’s Requests are set out in their document filed n 10 May 2001 and headed “2nd Defendants’ Proper Particulars of Paragraphs 4, 8, 21 (e), (f) and (g) of Defence and Counter-Claim” and states as follows:

“Under paragraph 4”

(a) The 2nd Defendants repeat their Answers filed on 7th September 2000, and

(b) The 2nd Defendants further say that the LMA and TRA agreements are written and can be inspected at the 2nd Defendants solicitors office if the Plaintiff and its solicitors do not already have same.

Under paragraph 8

(a) The 2nd Defendants repeat their Answers filed on 7th September 2000, and

(b) The following Agreements between Licensees (landowner entities) and contractors are relied upon as the basis of the prevailing practice -

(i) Mbaeroko Timber and Island Construction Management Limited.

(ii) Lagwaeano Sawmilling co. Ltd and Ado Solomon Limited

(iii) Lagwaeano Sawmilling Co. Ltd and Ocean Trading Company

(iv) Kololeana Development Co. Ltd and Mega Corporation Limited.

(c) The prevailing practice was a shift from the former practice between Licensees (Companies) and landowners as in such Cases as of the following:-

(i) Earthmovers groups of Companies with landowners.

(ii) Isabel Timbers Co. Ltd and Others.

(d) Agreements referred to in (b) and (c) may be inspected at the 2nd Defendants solicitors office.

Under paraaraph 21 (e), (f) and (g)

(a) The 2nd Defendants repeat their Answers filed on 7th September 2000, and

(b) Most of the terms and conditions in the MA are a duplication of the clauses in the TRA, and

(c) Clauses 1 & 3 of the LMA amounts to an Assignment, and

(d) Clause 4 of the LMA amounts to misrepresentation

(e) Clause 6 and 7 amount to the Plaintiffs undertaking to carry out clauses in the TRA

(f) The 2nd Defendants consent was oral and subsequently evidenced in writing and by conduct when the operations commenced by virtue of the LMA

(g) The loses suffered by the 2nd Defendants are that they have still not received any royalties, damage has been caused on their land, no proper roads and bridges have been constructed and Costs associated with these proceedings.”

Are the answers given by the second defendants sufficiently answered, the matters requested by the plaintiff in its Request of Further and Better Particulars of the Defence and Counter-claim? What is sufficient for the purpose of satisfying the request for further and better particulars depends on the facts of the case at hand. But generally speaking in view, particulars that are sufficient in such a case must be those which are necessary to ensure that the party’s case is clearly and precisely put, with the real point in dispute ascertained. This is also necessary to avoid surprise at the trial. On the other hand, a Request for further and better particulars must not be used as a means of delivering interrogatories through the use of request for particulars.

In the present case, following the particulars given by the second defendant’s on 7 September 2000, the plaintiff requested specifically further and better particulars of paragraphs 4, 8 and 21 (e), (f) and (g) of the Defence and Counter-Claim. The responses, given by the second defendants on 10 May 2001, in my view, are not sufficient to answer the requests made by the plaintiff. However, taking the particulars provided by the second defendants on 7 September 2000 together with those of 10 May 2001, the second defendants do show what their case is in this action.

They certainly contain allegations which put the plaintiff on its heels to justify some of its actions in the conduct of its logging operation in the area concerned. One such allegation is on non-compliance with Form 4 provisions. Of course, the second defendants’ case will only be determined according to the particular facts disclosed.

Whether paragraphs 4, 8 & 21 (e), (f) and (g) of Defence and counter-claim should be struck out.

I have found the particulars of paragraphs 4, 8 and 21 (e), (f) and (g) of the Defence and Counterclaim given by the second defendants on 10 May 2001 insufficient, The Court has a discretion whether or not to strike out those paragraphs of the Defence and Counter-Claim.

However, as I pointed out, the particulars supplied by the second defendants on 7 September 2000 together with those of 10 May 2001 do show their position in this action. As particulars to be delivered are not meant to substitute or form part of an interrogatory process in a civil action, I consider the particulars given so far (on both occasions) would justify this Court not to exercise its coercive power to strike out paragraphs 4, 8 and 21 (e), (f) and (g) of the Defence and Counter-Claim. What the second defendants would now reaIise is that at the hearing of this action, they cannot raise any matter which they have not now disclosed without leave of the Court.

Date the judgment takes effect.

A point has been raised by Mr. Katahanas regarding the time when a judgment or order takes effect. Counsel raised this point in response to Mr. Ashley’s suggestion that he was only served with the Order of the Court on 3 May 2001 although made on 2 March 2001.

When the order was made and announced by the Court on 2 March 2001, both the plaintiff and second defendants were present in Court represented by their Counsel. The Order was signed on the same day. That was the date of the decision, that is, when it was announced in the presence of both parties. That was the date when the parties actually or deemed to have received notice of the decision and time, if it matters, began to run from that date. In the present case, therefore, the effective date of the order of the Court was 2 March 2001 and the 21 days began to run from that date.

The fact that Counsel received a copy of the Order on 3 May 2001 does not alter the effective date of the Order of the Court. See Nano and Another -v- Riringi and Katovai-v- Lumukana [1984] SILR 9.

The particulars filed by the second defendants on 10 May 2001 was done outside the time ordered by the Court. However, in the exercise of the Court’s discretion, I shall allow the particulars since they have now been filed and would assist in the proper determination of the case when it comes to trial.

Costs

Generally the costs of an application to make a defendant deliver particulars are costs in the cause. In this case, the plaintiff had to come to Court because the second defendants had failed to deliver the particulars within the time ordered by the Court. As such, the party in default must pay the costs. The second defendants must pay the Plaintiffs costs of this application.
Order accordingly.

(Sir John Muria)
CHIEF JUSTICE