National Development Bank v James International Enterprises Ltd (CC456/06 1999 N NO. 14) [2006] SLHC 3 (16 March 2006);

CC456/06  1999   N NO. 14



JAMES INTERNATIONALENTEPRISES LTD                                                                                 - DEFENDANT

RENNER THOMAS &CO For The Plaintiff SERRY KAMAL &CO For the Defendant


D.B. EDWARDS, J. By oral application made before this Honourable Court the plaintiff solicitor noting the following:

1. that the defendant has failed refused or neglected to comply with the judges Order of 9th March 2007 for enlargement of time to comply with the Judges previous Order of 20th February 2007

2. that it was at the instance of the defendants solicitor that an enlargement of time and the adjournment was granted to this court applied to the judge for the defence filed in this matter to be struck out and judgment entered on behalf of the plaintiff.

The application was made pursuant to the my order of dated 9th March 2007 and Order 20A RULE 18(1) of the High court rules as amended by constitutional instrument No 3 of 2006 and also order 20 B 5(4) of the High Court Rules as amended by the said Constitutional Instrument .


From the facts before me leading up to this application, following the death of the Late Justice A B Raschid, the matter was re assigned to me and the issue of whether this matter is to commence de novo arose. The plaintiff had wanted the parties to conclude with their addresses but the defence counsel thought otherwise, were upon, it was decided that the matter would start de novo and that the plaintiff takes out summons for directions. On the 20th of February 2006 summons for directions was heard and directions were given by me on these terms.

1. That each party serves upon the other a list of all documents to be relied upon within 4 days from the date of this order.

2. That each party serve on upon the other copies of all documents to be tendered and used at the trial of this action within 4 days from the date of this order .

3. That each party must exchange witnesses statements of the oral testimony which the party intends to adduce on any issues of fact to be decided at the trial within 9 days of this order .

4. That the parties prepare the usual court papers to be included in the court bundle for use at the trial, which bundle shall have included in it the following

a) copies of the pleadings and any amendments thereto ;

b) list of issues in dispute;

c) admission of facts (if any ) arising out of those issues ;

d) nature of evidence to be relied upon( oral or documentary)and includes any agreed evidence ;and

e) a list of the witnesses to be called at the trial by each party

5. That each party shall lodge with the court two copies of its skeleton argument not less than 7clear days before the hearing of the action which is scheduled for the 9th of march 2007

6. That the parties are expected to come with their witnesses at the hearing of the action.

7. That there shall be liberty to restore the summons for further directions

8. That the cost of this application be costs in the cause .


The plaintiff's solicitor complied by filing their bundle of documents pursuant to the courts order/ directions. It is dated 23rd February 2007 . The matter came up for hearing on the 9th of March 2007. Both the plaintiff solicitor and defendant solicitors were present on the 9th of march 2007 . The defendant solicitor requested an enlargement of time up to the Wednesday the 14th March 2007 to enable them comply with the courts order of 20th February 2007. they did not state any reason for the this enlargement except that did not comply .This court nonetheless gracefully condescended to enlargement of time to the 14th of March, 2007 but on very stringent terms to wit

"Court grants enlargement of time on these terms to wit - Unless the defence complies with the Order of this court dated 20th February 2007 on or against Wednesday the 14th of March 2007 the defence filed will be struck out and judgment entered for the plaintiff . Hearing is adjourned to the 16th of March 2007."

On the adjourned date today 16th March 2007 , the records show that the defendant has again failed refused or neglected to comply with the Judges Order of 20th February 2007 and in the process flouting the Judges Order of 9th March 2007 which carried a penal notice in case of noncompliance . It is this order that the plaintiff by their application seek to enforce and also the provision relating thereto as contained in the constitutional instrument no 3 of 2006 .The Defendant's Solicitors were absent during the sittings on this matter

I have perused all documents before me. The Application before me concerns the inherent jurisdiction of the courts to dismiss action for noncompliance and the seeming judicial discretion imposed on the judge by statute as to whether he could dismiss the action or adopt any other means in securing compliance to the rules of court. The law on the subject as gleaned from the Supreme Court Annual Practice 1999 or the High Court


Rules 1960 as amended by Constitutional Instrument No 3 of 2006 is that provided in the undermentioned provisions

ORDER 20A R 18 "If any party who is required by rules 1 to 15 , or by any order made under any of those rules to make discovery of documents or to produce any document for the purpose of inspection or any other purpose to supply copies thereof fails to comply in any provision of that rule or with that order, as the case may be , then without prejudice , in the case of failure to comply with any such provisions, to sub rule (2) of rule 3and sub rule (l)of rule 11, the court may make such order as it thinks just, including in particular, an order that the action be dismissed or , as the case may be , an order that the defence be struck out and judgment be entered accordingly"

It cannot be gainsaid that the plaintiff failed woefully in complying with the provisions as contained in our statutes viz

i) to make discovery by exchanging lists of documents as provided for by sub rule (1) of rule 2 of Order 20A of the High Court Rules as amended by Constitutional Instrument No 3 of 2006.

ii) He failed on two separate occasions to comply with a judges order viz

It was not that he did not know about the orders as there is ample evidence showing clearly that he knew about the said orders before this court. This is so because

1. he was present in court on the 9th of March 2007 and never complained that he did not receive the Order of 20th February 2007 rather he requested for an enlargement of time simpliciter

2. As he was present in court he knew about the enlargement of time granted to him and the fact that, the court has imposed a penalty for any non compliance, as the circumstances would warrant .


This nonetheless, let me say that the issue before me is what sanction could be justly imposed in the circumstances as there is a seeming judicial discretion imposed on the judge reference to the aforementioned provisions contained in order 20a Rule 18(l)noting the options available to him.

The learned counsel for the plaintiff has invited this court to look at the records of the proceedings to see the number of adjournments the court had to take for the defendants solicitor to address which was never completed before the erstwhile judge on the matter before he passed away . I will refuse to look at same because the matter is commenced de novo . I however note that the matter having commenced de novo for an allegedly huge debt the solicitors has evinced an intention of treating it and the court with levity . On the 9th of March when this court ordered an unless order on the face of the parties the penalty for any non compliance where made known to him but he chose to ignore it .

There was no excuse constituting so very special circumstances for his failure to comply and as matter of fact he was even absent in the matter. Need I point out that while Mr. Serry Kamal is the defence counsel, it is the firm of Serry Kamal and Co that are solicitors and do file papers and where a firm of solicitors commits so grave a lapse as to filing papers or being absent in a situation where a judge states categorically as per order that he will strike out defence and enter judgment for the plaintiff this becomes inexcusable .

The remedy appropriate in case of non compliance of this nature is a stern measure; but is within the inherent jurisdiction of this court , and the rules of court as contained in order 20 A rule 18 (1) expressly permit . It is the only effective sanction that they contain. If a defendant fails within the specified time to comply with a judges order or to exchange lists of documents, the plaintiff can apply for the defence filed to be struck out and judgment entered for the plaintiff. It is even worse when the judge has given an "unless order" which prescribes the sanction in the case of non compliance, in the in the face of


the party . To do otherwise will do grave injustice to the plaintiff especially so for a case which started inl999.

Also noting the very background under which these new rules were introduced, under circumstances were law delays have been intolerable, it cannot be gainsaid that to do so, will defeat the whole and the very essence for which order 20 A rule 18(!) was included in the new rules put in the legal parlance of securing the just, expeditious and economic disposal of a case. The exercise of my discretion must thus be just and to secure the expeditious and economical disposal of the case and this 1 will endeavour to do .

Without more, the defendant having failed refused or neglected to comply with both my orders and in particular that of 9th March 2007 to which I indicated that "unless he complies with the Order of 20th February 2007 I will strike out the defence and judgment will be entered for plaintiff, I have no alternative but to order as follows :.

1.Defence filed in this action dated 15th December 1999 is struck out

2. Counter claim filed in this action dated 15th December 1999 is struck out

3. Judgment is entered for the plaintiff in this matter as follows:

a) payment by the defendant to the plaintiff of the sum of Le 328, 525, 753. 23.

b) interest on the said sum of Le 328, 525,753/23 at the rate of 35%from the 27"' of August 1999 until payment.

c) costs to be taxed if not agreed.

Hon. Mr. Justice D.B. Edwards J.