Talasasa v Mbaeroko Timbers Ltd [1997] SBHC 110; HCSI-CC 370 of 1996 (23 October 1997)

IN THE HIGH COURT OF SOLOMON ISLNADS

Civil Case No. 370 of 1996

TERRY TALASASA

-v-

MBAEROKO TIMBERS LIMITED

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 370 of 1996

Hearing: 12 June 1997
Ruling: 23 October 1997

G. Suri for Plaintiff
C Ashley for Defendant

Ruling

MURIA CJ: Before the Court are three applications. The first one is an application by the plaintiff filed on 18 April 1997 by way of notice of motion seeking to attach the defendant, its proprietors and Managers for contempt of Court. The second application is also by the plaintiff filed on 23 April 1997 seeking declaratory orders as well as permanent injunctions restraining the defendant from entering the plaintiff’s land. The third application is brought by the defendant seeking to set aside judgment in default and to be allowed to defend the action. The defendant also seeks permission from the Court to comply with the Court order of 24 January 1997 at some future time when it has funds.

At the hearing on 12 June 1997, Counsel for the plaintiff did not pursue his application for contempt and so that was adjourned generally. Counsel however asked the Court to consider the plaintiff’s application filed on 23 April 1997 along with the defendant’s application. In this regard Counsel for defendant only asked the Court to deal with paragraphs (1) and (2) of the defendant’s summons.

In view of the position reached between the parties regarding their applications before the Court, it will be necessary to deal first with the defendant’s summons seeking to set aside the judgment in default and then to consider next the plaintiff’s application for declaratory orders.

The defendant’s summons.

By it application, the defendant seeks a number of orders. But Counsel now pursues only the orders sought in paragraphs 1 and 2 which respectively sought leave for the Defence filed on 24 February 1997 to be accepted and that the default judgment dated 19 February 1997 be set aside. The more logical order would be, I feel, is to seek setting aside the default judgment first and then ask for leave from the Court to accept the defence filed out of time.

Counsel for the defendant relied on the affidavit of Ronald Ziru filed on 5 June 1997 to support his argument that there has been no delay on the part of the defendant in bringing this application and that there is an arguable defence available to the defendant against the plaintiff’s claim as contained in his Statement of Claim.

Naturally Counsel for the plaintiff objected to the defendant’s claims that there has been no delay here and that there is a viable defence available. It has been submitted by Mr. Suri that the Writ was served on defendant on 18 December 1996 and Appearance had seen entered on the defendant’s behalf on 14 January 1997. It has been submitted by Counsel for the plaintiff, and it has not been disputed by the defendant, that on 22 January 1997 he requested the defendant’s solicitor to file defence and put the defendant on notice that failure to file defence would result in default judgment. The defendant’s solicitor responded on 22 January 1997 but there was no defence filed. On the 13 February 1997 Counsel for the plaintiff checked with the Court Registry and found no defence had been filed. Again on 19 February 1997 a check with the Registry revealed that no defence had been filed. On that same day the Counsel for plaintiff filed a default judgment which was signed by the Court. In those circumstances counsel for the plaintiff argued that the delay in filing a defence which was filed five days after default judgment was issued, could not be justified.

On the question of defence of merit, counsel for the plaintiff argued that the defendant did not have a defence at all to the plaintiff’s Claim. This, Counsel submitted, is because as from 26 September 1996 the plaintiff became the registered owner of the land in question, that is, Parcel No. 098-005-63. Further Counsel argued, the grant instrument contained no condition to the effect that the plaintiff’s title was subject to the defendant’s rights in the land.

The principles to be applied in an application to set aside judgment by default have been well established in this jurisdiction. See Kayuken Pacific Limited -v- Harper [1987] SILR 54; Reef Pacific Trading Limited & Others -v- Reef Pacific (Sydney) pty Limited, Civ. App. No. 1 of 1994 (CA); Fielder Industries (SI) Limited -v- Solwest Trading Company Limited, Civ. Case No. 153 of 1993 (H.C) (unreported); Aerolift International Limited -v- Mahoe Heli- lift (SI) Limited, Civ. Case No. 387 of 1995 (HC) (unreported); and Jane Tozaka -v- Hata Enterprises Limited, Civ. Case No. 198 of 1996 (H. C.) (Ruling given on 3 June 1997). The considerations upon which the Court can base its decision on an application to set aside a default judgment are set out in Kayuken Pacific Limited -v- Harper and these are:

1. What was the reason for the failure by the absent party to appear?

2. Has there been undue delay by the absent party in launching his proceedings for a new trial?

3. Will the other party be prejudiced by an order for a new trial?

As it is very much a matter of unfettered discretion of the Court, no hard and fast rules can be laid down in such a case. The guidelines in Kayuken Pacific Ltd -v- Harper are therefore not exhaustive but are of useful assistance to the Court’s exercise of its discretion and they should be adopted bearing in mind the circumstances of the particular case. After all the Court’s function is to ensure the attainment of justice between the parties in the dispute before it and if that requires the Court to revoke an order obtained only by failure to follow any of the rules of practice, the court must have the power to do so: Leslie Allinson -v- Monique Medlia, Civ. App. No. 7 of 1996 (CA) Judgment delivered on 15 April 1997 and Jane Tozaka -v- Hata Enterprises Limited (supra).

To turn to the circumstances of the present case, it will be noted that the defendant had been reminded by the plaintiff on 22 January 1997 to deliver its defence. Subsequently the defence was prepared on 30 January 1997 but was not filed until 24 February 1997, five days after the default judgment has been signed. The explanation given by Counsel for the defendant is that he was waiting for the Defendant’s managing director who was in the Western Province to come to Honiara and to finalise instructions before he could file the defence. This explanation had not been controverted by Counsel for the plaintiff. While it may not be the best explanation by the defendant for the failure to file defence in time, given the circumstances of the case, I feel the Court can accept the reasons preferred by Mr. Ashley for not filing the defence in time.

Next to be considered is the question of delay in bringing these proceedings to set aside the judgment obtained by default. That judgment was made on 19 February 1997 and served on the defendant’s solicitor on 6 March 1997. The only explanation offered by Mr. Ashley for not bringing these proceedings to set aside the default judgment was that the defendant was busy trying to sort out the other cases in which the defendant was involved.

The materials before the Court, in particular, Mr. Ronald Ziru’s affidavit, contain the defendant’s explanations very much as to why it was not able to comply with the Court orders. In this instance the Court orders referred to in paragraph 2 of Mr. Ziru’s affidavit filed on 5 June 1997 must be the orders dated 20 December 1996 and 24 January 1997. The former Order required the defendant, among other things, to sell logs already cut as from 26 September 1996 and to deposit the proceeds thereof into an IBD Account in the joint names of the solicitors of the parties. The latter order required the defendant to pay the actual sum of $66,253.47 being the proceeds of the sale of the logs into an IBD Account in the joint names of the parties’ solicitors at the ANZ Bank. Basically the defendant’s managing director deposed that the defendant had no intention of disobeying the Court orders but that the non-compliance was brought about because of a number of High Court cases in which the defendant has been involved in.

The plaintiff’s claims in this action are for declaration that he is the lawful owner of the land in Parcel No. 098-005-63, Lot 76, LR 395/2, MBaeroko/Lambu, New Georgia, damages for trespass onto the said land and a permanent injunction preventing the defendant from coming onto the plaintiff’s land without the express permission of the plaintiff. The defendant argued that it has a defence on the merits to the plaintiff’s claim and in this regard relied on the defence filed on 24 February 1997 out of time. It is incumbent on the defendant to show a defence on the merits and if after considering the affidavit the court feels that there is an arguable defence or there is a triable issue to be considered, the court must set aside the default judgment and allow the defendant to come before the Court and defend the action against it: Reef Pacific Trading Limited & others -v- Reef Pacific (Sydney) pty Limited, Civ. App. No.1 of 1994 (CA).

The materials before the Court as I have said earlier basically seek to explain the reasons for not complying with the two orders of this Court. There is unfortunately very little in the managing director’s affidavit that lands any support to the Defence filed by the defendant on 24 February 1997. Not only that the affidavit evidence does not support the defence raised, but that the defence filed on 24 February 1997 cannot be regarded as a defence at all to the plaintiff’s claim that he was the owner of the land in question as from the 26 September 1996, a claim which is principally agreed to by the defendant. Further the defendant also agrees that as from 26 September 1996 it had, not entered into any timber rights agreement with the plaintiff, such a timber right agreement would obviously have given the defendant some right to enter the plaintiff’s land had there been one. There was none in this case. Again the defendant claims that the plaintiff’s right of ownership is subject to the defendant’s right of way. Unfortunately no material has been shown by the defendant to support this claim. Put it simply, the materials before the Court have not disclosed am arguable defence and as such the defendant has faced a formidable task of convincing this Court to set aside the judgment obtained against it.

Accordingly the application to set aside the judgment obtained by default on 19 February 1997 is refused.

The plaintiff’s application.

The declarations sought by the plaintiff in his application by way of Notice of Motion are in fact the very same orders which he raised in his Statement of Claim. Counsel for the plaintiff argued that if the Court finds that the defendant has no defence to the plaintiff’s claim, the Court can proceed to determine by way of declaratory orders the matters claimed by the plaintiff in his Statement of Claim. This course of action says Counsel is permitted by Order. 42 r 6 of the High Court (Civil Proc.) Rules 1964. Although the motion is expressed as a motion for declaratory orders, it is in effect a motion for judgment. Rule 6 of Order 42 provides that:

“Upon a motion for judgment, the Court may draw all inferences of fact, and if satisfied that it has before it all the materials necessary awarding any relief sought, give judgment accordingly, or may, if it shall be of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it may think fit.”

The Notice of Motion is made following the judgment in default which this Court has now refused to set aside, obtained by the plaintiff on 19 February 1997. The plaintiff is therefore really seeking to confirm his entitlement under the judgment already obtained. Therefore r. 6 of 0.42 does not apply here.

Turning to the orders sought in the application, there is clearly nothing offered by the defendant to dissuade the Court from making the orders sought in paragraphs 1, 2 and 3. The plaintiff became the owner of Parcel No. 098-005-63, Lot 395/2 as from 26 September 1996. The defendant has not disputed that fact. The plaintiff had not entered into any agreement with the defendant entitling the defendant to enter onto and to cut timber on the plaintiff’s land as from 26 September 1996. The value of those logs had been re-assessed to be $71,790.46.

The evidence filed by the defendant by affidavit does not seek to rebut the matters that I have just mentioned. As I have already said, Mr. Ziru’s affidavit contains simply the defendant’s explanation as to why the defendant was not able to comply with the order of this Court earlier made. In fact, the defendant’s seeks time to comply with the orders of the Court.

In all the circumstances, the only course this Court can take is to grant the orders sought.

Orders:

1. The plaintiff is entitled to the possession of the fixed term estate in parcel number 098-005-63, Lot 76 on LR 395/2 situated at Mbaeroko/Lembu, New Georgia.

2. The plaintiff is entitled to recover against the Defendant for trespass onto the Plaintiff’s land described as Parcel Number 098-005-63, Lot 76 on LR 395/2 and/or conversion of trees thereon the sum of S80$71,790.46.

3. The defendant is hereby permanently by itself its servants or agents restrained from continuing or further trespassing onto the Plaintiffs said land for purposes of felling, extracting or taking away logs of for whatever reason without the express permission of the Plaintiff.

4. The defendant is to pay the plaintiff’s costs of and incidental to this action.

Order accordingly.

(GJB Muria)
CHIEF JUSTICE