Mali v Okao [1996] SBHC 10; HC-CC 070 of 1995 (29 February 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 70 of 1995

ter">PHILIP MALI

-v-

JERRY RAFE OKAO

Before: Sam Awich

Hearing: 29th February, 1996 - Judgment: 29th February, 1996

Counsel: A Radclyffe for the Plaintiff; C. Ashley for the Defendant

JUDGMENT

SAM AWICH: Commissioner.

I am satisfied that the defendant has established sufficient case for the court to set aside the default judgment entered against him on 25 March 1995. He instructed solicitor properly, paying the solicitor $500.00. He was entitled to rely on the solicitor to take all steps necessary to resist the claim of the plaintiff. It appears the solicitor did not pay much attention to the defendant's case. The result is that the default judgment entered against the defendant is now being pursued. Assessment of damages has been set down for hearing.

Eight months after the default judgment has been entered, the defendant came to court, by another solicitor seeking to set aside the default judgment. Learned Counsel Mr Radclyffe submits that the delay of 8 months is excessive, the application should fail. Yes, eight months delay may seem excessive. In this case, however, we learn from defendant's affidavit, that he went to the office of his first solicitor several times after he had been served with the writ of summons. He was served on 9 March 1995. In April, he was served with default judgment. The default judgment had been entered on 25 March 1995. Again he went to see his solicitor. That was in April. The solicitor advised that he would apply for setting aside of the default judgment. After he had been failed by his first solicitor, we now know that he has come to court by another solicitor, and in all, 8 months after the default judgment was granted. In the circumstances I hold that the delay of 8 months is not inexcusable.

I have considered whether the affidavit of the defendant discloses arguable defence; that which has reasonable prospects to succeed. It appears to me that contrary to the submission of counsel for the plaintiff, this is not a straight forward case of no defence. The defences are: (1) That hitting submerged coconut in the circumstances excludes negligence, (2) There is contributory negligence; and (3) That the engine was obtained without permission, not by the defendant but by a third person. These are not baseless. It may well be that detailed evidence may be led that will negate negligence. It may well be that other people may be joined in the trial as third parties. There are prospects of success or part success.

The court sets aside the interlocutory default judgment entered on 25 March 1996, and order appearance to be filed within 14 days of today's date. The rest of the pleadings are to be done in due compliance with the Rules. Costs must be in favour of the plaintiff.

Dated and signesigned this 29th day of February 1996 at Honiara.

Sam Awich
Commissioner of the High Court