IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona, PJ)

Civil Case No. 442 of 2011

BETWEEN:

SAMLIMSAM (SI) LIMITED
Claimant

AND:

TORONTO CONNECTION (SI) LIMITED
First Defendant

AND:

GREAT WOODS LIMITED
Second Defendant

Date of Hearing: 16th November 2015
Date of Ruling: 22nd January 2016.

Mr M. Pitakaka for the Claimant
Mr R. Kingmele for the Second Defendant

RULING.

Faukona, PJ: This cause of action was on trial commencing 13th November 2015 and expected to linger for three days. However, on 16th November 2015, the Claimant's first witness was giving evidence on examination in Chief. Whilst on examination the witness intended to tender a document labelled as a Bill of Lading concerning the importation of two bulldozers of Kamatshu brand. He stated that the Bill of Landing is different from the one he disclosed under his sworn statements. He further states that after thorough perusal of his sworn statements, he noted that the two (2) Komatshu bulldozers were shipped on a different shipment. He then retracted in Court that he had made a mistake that his machineries were sent by one shipment.

2.	The Counsel advocate for the Defendants objected the document and its tendering to the Court. His reasons are that the document was not disclosed in any of the two sworn statements deposed by the witness on 1st March, 2013 and 3rd September, 2013. The Counsel cautions if Claimant wish to rely on this document it should be exhibited in another and a different sworn statement. Failure by the Claimant to disclose the document hence bar him from relying on it. The Counsel then refers to Rule 11.33.

3.	Historically, this file commenced by an application for freezing orders. That application was refused and dismissed on 12th December, 2011. There was no order that the Claimant will file and serve its claim within 14 days though an order of that nature was sought in the application.

4.	Despite that technicality, a claim was filed on 29th February, 2012; 79 days after the Court made its ruling on 12th December, 2011. Indeed the Counsel for the Claimant had ignored due diligence obligated on him and the claim was filed roughly 79 days late. 

5.	It is not a contentious issue that the document was exhibited in the current deposer's statement filed on 2nd October, 2011. The argument is that that sworn statement was in support of the application which had already being dismissed.

6.	In my humble opinion, it would not be necessary to exhibit the document in the witnesses' two new sworn statements. Perhaps a reference to the old sworn statement is sufficed. But that did not happen in this case. The witness had totally ignored the document and exhibited a new bill of lading to his sworn statements which he said concern all other machineries which were shipped in another ship. 

7.	I have no issue with the fact that the previous application and this cause of action are one and the same case. The previous litigation is about application for freezing orders and now the Court is dealing with the substantive issued of the claim. It is a normal Court process except the claim was filed in contravention of the orders. In any event that is not an issue in the current case. 

8.	My personal perception is that by producing a document at trial without being exhibited and pleaded cause havoc and an abuse to the other party. Even if it was not exhibited, a referenced to, will cure any legal argument. However, Counsel for the Defendants submits the manner in which the Claimant conducts its case is prejudicial to the Defendants. The document was not exhibited and hence not pleaded. Therefore it is an abuse of process. 

9.	Rule 11.33 specifically stated that a party who fails to disclose a document may not rely on the document unless the Court allows. I uphold the discretion the rule advocates. However, it is with no doubt that the bill of lading is an important document to the Claimants case. It is a material fact that attributes to proving the ownership of the two bulldozers. As such it would be considered as paramount and prudent that proper course to take is to apply to Court to allow production of the document because it was not exhibited. In the current case there was no such step taken by the Claimant and the document remains isolated from the rest of the facts, and secondly not being pleaded.

10.	Further to rule 11.33, is rule 11.71 which states that the claim or application must be supported by a sworn statement stating the facts in which the potential Claimant relies, and stating the kinds of documents or things in relation to the application and the Claim.

11.	Rule 11.71 is straight forward with very valuable direction on what the Claimant ought to do. The provision is mandatory and there can be no discretion to entertain.

12.	If I am to exercise discretion under Rule 7.33, certainly would prejudice the Defendant's case. Admission of mistake at trial is quite costly. It would be difficult to reverse to pick on what could have been done, had the Claimant was cautious in managing its case. This case has to progress forward since trial had commenced with examination in Chief of the first witness. 

13.	From the reasoning, I have concluded it is appropriate and legally based that the document (the new bill of lading) must not be admitted.

Orders:

1.	The new bill of lading document must not be admitted and tendered to Court as material fact.

2.	Cost in the cause.

3. Case adjourn for 3 days trial on 31st May 2016, 9.30 (half day), 1st June 2016 - full day, 2nd June 2016 -1.30 (half day) and 3rd June 2016 - full day.

The Court.