Tapuika v Tagakule [1996] SBHC 21; HC-CC 378 of 1993 (29 April 1996)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 378 of 1993

RHODA TAPUIKA

v

JOHN TAGAKULE

Before: Palmer J

Hearing: 24 April, 1996 - Judgment: 29 April, 1996

Counsrs. M. Samuels for Applicant/Defendant - J. Remobatu for Respondent/PlainPlaintiff

PALMER J:

This is an application under Order 38 Rule 7 of the High Court (Civil Procedure) Rules, 1964 to set aside a judgment obtained in default of appearance at the trial by the defendant.

The trial had been listed for hearing on 4th May, 1995. Both Counsels and the plaintiff attended the hearing. For some unknown reason (later the reason was given that the defendant mistook the date as for the 5th May, 1996) the defendant did not appear. The defendant's Counsel was not aware of any reason for the defendant's non-attendance, and so quite properly withdrew her services. The trial went ahead in the absence of the defendant that day, and continued on 9th May, 1996, for submission.

According to the affidavit of John Tagakule filed on 28th March, 1996, at paragraph 4, he stated that he attended court on Friday 5th May, 1996, but found out that the matter had already been heard. He did not make any further enquiries with the court and though he did attempt, he says, to see his Solicitor on a number of occasions, he could not do so.

The only other time he became aware of this case was when an order for oral examination was served on him on or about 22nd February, 1996, some 9 months later.

In considering whether to set aside, the first matter for consideration must be whether there is a viable defence or not. This has been one of the crucial points mentioned by Mr. Remobatu, of Counsel for the plaintiff. I have had the opportunity to consider the defence submitted and with respect, agree that no viable defence has been raised.

The crucial issue raised in the Statement of Claim filed with the Writ of Summons on 27 October 1993, is contained in paragraphs 1 and 2 of that Statement of Claim. At paragraph 1 it was alleged that "… the Defendant agreed to exchange a house situated at Ravu Village, East Honiara which he said to be his own ....". (emphasis added). At paragraph 2, it was alleged that the plaintiff found ".... out later that they had been misled to believe that the defendant was the sole owner of the property. It is tribal property." (emphasis added).

In the defence, Paragraph 1 of the Statement of Claim was admitted to by the defendant. Paragraph 2 of the Statement of Claim was denied, but no further particulars was given. There is nothing in the defence therefore which indicates that the defendant had a viable defence to the claim of the plaintiff for fraudulent misrepresentation; which is the cause of action in the claim of the plaintiff.

Accordingly, I am satisfied that even if an order to set aside were granted, it would not have affected the order of the court, which in the circumstances of this case. in my view. is the proper order.

The application to set aside therefore should be dismissed. Nevertheless, I will go on to consider the other considerations, in the exercise of the court's discretion, in the event that there had been a viable defence.

The first matter for consideration as set out in the case authority on this point, Kayuken Pacific Limited v Harper 1987 SILR 54, at page 58, is, what was the reason for the failure by the absent party to appear. The reason given was based on a mistaken belief that the hearing date was for 5th May, 1995. This would have been a valid excuse, had there been no undue delay by the defendant in launching his proceedings for a new trial (this is the second matter for consideration). When the defendant appeared on 5th May, 1995, it is clear that he did not make sufficient enquiries at the Office of the High Court as to the state of affairs pertaining to this case. Had he done so, he would have been told (as correctly submitted by Mr. Remobatu) that the case had been adjourned to 9th May, 1995 for submissions on the part of the plaintiff. He would then have had an opportunity together with his Solicitor to make an appearance on that date and explain why he did not appear on 4th May, 1995. He did not check and did not see his Solicitor on or about the same date. There was basically a lack of interest in the outcome of the case demonstrated by the defendant right from the beginning. He had ample time, within the twenty one days stipulated in Order 38 Rule 7 to take appropriate steps to have the judgment of the Court set aside. He also failed to make enquiries about the judgment of the Court which was given in open Court on 9th May, 1995.

This is not a case where the defendant was not aware about what was going on within the twenty one day period in which to make an application under 0.38 R 7. He was aware about what was happening as from 5th May, 1995. The time period of twenty one days given under Order 38 Rule 7 was to ensure that parties do not sleep on their rights and so that the plaintiff is not prejudiced by undue delay. The delay has not taken days but months. I am satisfied in the circumstances that there has been undue delay and that the court's discretion should not be exercised in favour of the defendant.

The application to set aside is dismissed with costs.

A. R. PALMER,
HONOURABLE PUISNE JUDGE