Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Pogara v Pitakaka [2024] SBHC 113; HCSI-CC 576 of 2023 (16 September 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 576 of 2023

BETWEEN:

CHIEF EXPRESS POGARA, CHIEF BEN TAKAKOLO, SAMSON GALO, DALSON GEORGE & RUNNY TANAKASU
(Joint Owners of Perpetual Estate 049-002-1, LR 1158, Kibi Land)
First Applicants

AND:

SONIC PHASE (SI) COMPANY LIMITED
(Licensee/Contractor)
Second Applicant

AND:

HARRISON PITAKAKA
(Deputy Premier of Choiseul Province & representing Roqepota Tribe)
Defendant

Date of Hearing: 13 September 2024
Date of Decision: 16 September 2024

Mrs Angeline N Tongarutu for the First and Second Applicants (No Appearance)
No Appearance for Defendant (Not Served)

RULING

Bird PJ:

1. This case was commenced by Chief Express Poqara, Chief Ben Takakolo, Samson Galo, Dalson George and Runny Pitakasu together with Sonic Phase (SI) Company Limited against one Harrison Pitakaka. It was originally filed as an urgent application for ex parte orders. Supporting sworn statement, a certificate of urgency and undertaking of damages were also filed. All documents were filed on 30 November 2023.
2. Upon reading the application and sworn statement, and having satisfied myself of the requirements of granting interim orders, I granted the orders on the same date. I then listed the matter for inter partes hearing on 6 December 2023. On that date, Mrs Tongarutu who acts for the applicants did not attend court. There was also no explanation for her absence. The hearing was vacated and Commissioner Ofaga was supposed to have conducted inter partes hearing on 29 January 2024 at 9.30am.
3. There is no record on file to assist me whether or not an inter partes hearing was done on 29 January 2024. Nonetheless a further amended urgent application for interim restraining order was filed on 7 February 2024. Further sworn statements were also filed. By that time, no claim was filed by the applicants. The court granted orders sought by the applicants which was perfected on 23 February 2024. The matter was adjourned to 7 March 2024 at 9.30am.
4. On 7 March 2024, the matter was called again. On that date, Mr Pitakaka was not yet served. Upon application from the bar table, the court also issued orders for substituted service. That should not have been made by the court without a proper application being filed with supporting sworn statements. The orders of 23 February 2024 were extended. Those orders should have never been extended because by that time, the claim has yet to be filed by the applicants. The case was then adjourned to 11 April 2024 at 1.30pm. No further records was available on file to assist me if the matter was called and heard on 11 April 2024.
5. By sworn statement of Mrs Tongarutu filed on 15 February 2024, she deposed to the fact that Mr Pitakaka was served with the filed documents by registered post on 12 February 2024. I do not accept that sworn statement as proper proof of service upon the operation of rule 16 (14) of the Legal Practitioner’s (Professional Conduct) Rules 1995. That basically means that Mr Pitakaka has not been served with the documents filed as well as the interim restraining orders.
6. The matter was then listed before me on 10 September 2024 at 9.30am for mention. Mrs Tongarutu of counsel appeared for the applicants. I enquired of her why a claim has not been filed since 30 November 2023 to date. She stated that she did file the Claim. The court asked her for a filed copy and she did not have it. She requested an adjournment till 13 September 2024 at 9.30 am to properly address the issue. I adjourned to that date and time.
7. On 13 September 2024, Mrs Tongarutu for the applicants made no appearance. There was no explanation for her absence. She had written a letter to the Registrar dated 12 September 2024 explaining the non-filing of the claim. She had no copy of the filed claim and she will file an amended claim on 13 September 2024. She did not ask to be excused from attending court on 13 September 2024.
8. Rule 2.2 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) provides that a proceeding is started by filing a claim. I can make interlocutory orders before a proceeding is commenced under rules 7.9, 7.10 and 7.11 of the CPR. Under r. 7.12 of the rules, I also have the discretion to order the applicant to file their claim within a certain date. That is not a mandatory duty under the rules. All lawyers are expected to know that a proceeding can only commence upon filing of a claim under r. 2.2 of the rules.
9. The applicant’s application was commenced under rules 7.9, 7.10 and 9.11 of the rules. The documents for the interim application was filed on 30 November 2023. No claim was filed on that date or thereafter. The court had continued to entertain and manage the matter without it being validly commenced under rule 2.2.
10. Mrs Tongarutu has conceded that there was no filed claim since the application was filed. Needless to say that she intends to file an amended claim on 13 September 2024. Having perused the court file on the date of this ruling, I find no amended claim filed by Mrs Tongarutu. My Associate was also directed to check the JIMS entry and also found that no amended claim was filed.
11. Even if an amended claim was filed on 13 September 2024, the amended claim would never cure the defect of non-compliance with rule 2.2 of the rules. Moreover, how could an amended claim be validly filed because the original claim was never filed to this day. Non-compliance with rule 2.2 of the rules is basic. Without the filing of a claim, the proceeding has never even commence before this court. See the case of Augustine Rose v Marvingbros Timber Company Limited – Civil Case No 317 of 1996.
12. In light of my above discussion as well as the Rose case mentioned above, the interim orders dated 30^th November 2023 and 23^rd February 2024 are discharged forthwith. I also dismiss the urgent applications dated 30^th November 2023 and the amended application dated 7^th February 2024. I make no orders for cost as Mr Pitakaka has not been validly served to this day. Consequently he has not taken part in this case. I hereby order accordingly.

THE COURT
Justice Maelyn Bird
Puisne Judge