Lone v Solomon Telekom Co Ltd [2018] SBCA 25; SICOA-CAC 9029 of 2017 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Lone v Solomon Telekom Company Limited
Citation:
Decision date:	12 October 2018
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands( Mania J)
Court File Number(s):	CA 9029 of b2017
Parties:	Billy Lone v Solomon Telekom Company Limited
Hearing date(s):	3 October 2018
Place of delivery:	High Court Of Solomon Islands-Court Room Six(6)
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	N. Laurere for the Appellant L. Puhimana for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Appeal dismissed
Pages:	1-6

JUDGMENT OF THE COURT

1. This appeal is against a decision made in the High Court wherein default judgment was set aside in the course of an assessment of damages hearing. The default judgment had been obtained by the claimant in the court below, the appellant in this appeal, on 15 April 2016. Following from that default judgment an assessment of damages was conducted resulting in the decision delivered 15 August 2017 wherein the default judgment was set aside, the defendant in the court below, respondent to this appeal, was required within fourteen days to file a defence and the matter listed for further mention on 30 August 2017. Notice of appeal was filed on 29 August 2017.
2. The claim began as a claim for trespass. In the statement of claim it was asserted that the appellant held registered title to land on which the respondent had constructed a mobile telephone tower. It is an agreed fact on this appeal that at the time of the claim the appellant held no such registered title. Before the assessment of damages hearing the appellant had been registered as the owner, but not at the time of claim or the time of construction.
3. Whilst a response had been filed to the claim by the respondent, no defence was filed. On this appeal we are told that no defence was filed as the parties were in negotiations on the claim.
4. For the same reason, we are told, no application was made to set aside the default judgment. It was hoped that the negotiations would come to a conclusion which would encompass both an amicable settlement and a consent order to set aside the judgment in default. This is clearly not to be the case. It may be that there was not good faith within these negotiations but that is not a matter for this court to determine.
5. At the assessment material and with the benefit of material filed for that hearing, it became apparent to the trial judge that the claim as brought could not, on its face, be correct. It was apparent from the documents submitted showing title that it was never in the name of the claimant when the claim was filed. No doubt alert to this on reading the filed material the trial judge was conscious of the requirement not to simply proceed with the assessment when he had before him material that called the original claim into question.
6. The appeal, pursued following the grant of leave, raises six grounds of appeal. Those grounds are:

That in making the ruling to discontinue assessment of damages and setting aside default judgment, the learned Judge erred in law and procedure in:

• (1) Taking into evidence and acting upon inadmissible evidence (on issues of liability) at the hearing for assessment of damages when default judgment had been entered against the defendant on the 15^th April 2016 on issues of liability.
• (2) Making up issues for the parties and the court when there was no defence filed and therefore no issues arising from the pleadings as to the defendant’s liability in trespass.
• (3) Basing his ruling on the Claimant’s title to the land at the time of filing the Claim being 24^th July 2015, and disregarding the fact that the Claimant had already acquired title to the land on the 28^th October 2015, prior to the time the default judgment was entered.
• (4) Setting aside the default judgment without any application from the Defendant to set the default judgment aside.
• (5) Denying the Claimant the right to be heard before the default judgment is set aside.
• (6) Being bias against the Claimant by implication of the orders made and the reasons given for the orders.

7. The first ground seeks to categorize evidence filed on quantum as inadmissible as evidence on liability. That ground is misconceived. Material placed before the court is no more than that. If that material indicates an issue going to liability, the court has an obligation to consider the matter. Setting aside the default judgment is not determining liability, it is merely requiring that the claimant prove the claim before a court rather than by default. In that sense the material is not used as evidence as would be produced during trial. No finding was made at this stage on any evidence.
8. The second ground is equally misconceived. A judge is obliged to consider material put before him. If that material suggests that there are reasons for default judgment to be re-considered then the judge is obliged to act on that material. To suggest that by acting on the material placed before him the judge is making up issues is simply wrong.
9. As to ground three it is clear that the appellant had title to the land by the time of the assessment hearing. The claim asserts that he had title to the same land at the time of the claim, which assertion is clearly wrong both in fact and law. That raises the issue of whether the offending tower could be said to be an overriding interest within section 114 of the Land and Titles Act which the appellant would have to take with the land. It is an important matter requiring consideration as it may defeat any claim for trespass.
10. Ground four raises the question of acting in the absence of a request for the default judgment to be set aside. Given that the judge has an obligation to ensure that the default judgment was correctly entered according to law, there is no requirement for an application for set aside to be before him. We have dealt with that aspect of this appeal by way of costs.
11. Ground five raises the question of being heard on the question of set aside. It appears that having received all of the material for the assessment, the judge retired to consider the material without any specific reference being made to the correctness or otherwise of the judgment in default. At the stage when the judge was considering the material but before he came to a firm conclusion on that material, a further hearing could have been offered to the parties specifically to address the default judgment question.
12. We agree that the judge could at that stage have called counsel back and asked them to address him on that question. We further agree that this failure to call counsel back and offer that opportunity amounts to a denial of a hearing on the matter. Given the nature of the flaws in the default judgment, however, we cannot see what submission could have been made to avoid the setting aside. Material, which material the claimant had seen, demonstrated that at least one element contained in the statement of case was not true. It is that part of the claim which goes to the heart of trespass and that is ownership. Nothing could have been said by counsel which could reduce the effect of that deficiency. For that reason we do not believe that the determination of the trial judge should be set aside on this ground alone.
13. Ground six is not made out. The judge had an obligation when considering the default judgment. He is not a rubber stamp at this stage as a Registrar may be. There is, as this court has said before, an obligation on the judge to ensure that the default judgment was not only properly entered but properly founded in law.
14. The respondent agrees that this appeal is only necessary through the failure to file a defence and subsequently not to seek a set aside of the default judgment. Whilst the respondent asserts that good reason existed for this failure, nevertheless that failure is the primary cause of this appeal. We believe that this is best reflected in an order for costs against the respondent.
15. The appeal is dismissed. The orders of the High Court are confirmed. If not already filed the defence must be filed within 14 days of publication of this judgment and the matter set down for mention in the High Court with a view to further hearing and steps as are necessary. Costs of and incidental to the appeal are to be paid by the respondent to the appellant such costs to be agreed or assessed.

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Goldsbrough P
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Ward JA
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Lunabek JA