Lethy v Luluku [1998] SBHC 13; HC-CC 104 of 1996 (23 February 1998)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 104 of 1996

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v

NATHANIEL LULUKU,
GWENDYLENE ABANA,
COMMISSIONER OF LAbr> REGISTRAR OF TITLETITLES

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> High Court of Solomon Islands
Before: Lungole-Awich, J
Civil Case No. 104 of 1996

Hearing: 9^th February 1998
udgment:ment: 23^rd February 1998

class="MsoNormal" style="mle="margin-top: 1; margin-bottom: 1"> Counsel: G Suri for the Plaintiffs,
C Ashley for the dants

JUDGMENT

(LUNGOLE-AWICH, J):n> The Parties: The plaintiffs, Steven Lethy and Obed Sbed Siako had writ of summons issued against Nathaniel Luluku, Gwendylene Abana, Commissioner of lands and the Registrar of Titles, cited as first, second, third and fourth defendants in that order. There is clumsiness in citing both the Commissioner of Lands and the Registrar of Titles. The Commissioner of Lands may be cited by authority of section 4 (3) of the Lands and Titles Act, and the Registrar of Titles by authority of section 6 (2), yet in terms of section 3 the Commissioner is assisted by the Registrar of Titles. Section 15 of the Crown Proceedings Act, Cap 7, provides for citing Attorney General in proceedings against the Crown, it might be expedient to cite the Attorney General, especially where two or more officials of the state are being sued about the same subject matter. After all it is Attorney General or his representative who usually represents public officials in court. I have noticed that often Ministers of the Crown are cited as parties and in some cases the ministers are even personally named. Sometimes the cases continue when the named minister is no longer in office. It is worth looking into the manner of citing public offices and public officers. For purposes of the issue in this judgment the question of citing is not important.

The Application

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The plaintiffs' case asked for declarations that they, representing their tribes, are the original owners in custom of land parcel No. 079-005-LR 115 and that they are entitled to perpetual estate therein, further that the Register of Perpetual Estates be rectified by removing the name of the first defendant and substituting the plaintiffs' names. They also claimed costs.

Copies of the writ of ns were served on all the four defendants. The first and second defendants filed join joint memorandum of appearance on 12.7.1996 which was outside the 14 days limited for entering appearance. They then filed joint defence on 24.7.1996. The third and fourth defendants have not filed memoranda of appearance nor defences. They did not even attend court. The plaintiffs have applied on motion, that judgment to be entered in their favour for the declaratory reliefs and rectification stated above and for costs. They stated that the application was made, "on the ground that the First, Second, Third and Fourth Defendants have not entered appearance to the writ of summons…”. At the hearing the plaintiffs applied to amend the application by introducing failure to file defence as additional ground. Counsel for the plaintiffs then decided not to argue the grounds of default of appearance in respect of the first and second defendants. The first and second defendants did not oppose the application to amend. The court granted the application.

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The course taken by learned counsel Mr. Suri for the plffs, to apply on motion for judgment is the correct course urse in this claim where the reliefs sought are declaratory judgments and rectification of record. They are not reliefs enumerated in Orders 13 and 29 of the High Court (Civil Procedure) Rules, for which default judgment may be entered administratively. Another correct course that Mr. Suri adopted was to abandon the ground that the first and second defendants had defaulted in entering appearance. It is true that they filed joint memorandum on 12.7.1996, which was after the 14 days limited, but that was before the plaintiffs filed on 21.8.1996, their application for judgment. A defendant does not suffer the consequence of not filing appearance within the time limited unless the plaintiff has acted by applying for judgment. That leaves that ground open for argument only against the third and fourth defendants.

Defaults Complained About

The ground that the third and fourth defendants have failed to enter appearance has to be dealt with in a somewhat round about way in this case. For the reliefs sought, which are declaration of right and rectification of record, the plaintiffs would have to proceed as if the defendants had appeared - see O13 r9. That means that they would have to wait for the next step, filing defence or default in filing defence. Default occurred, but the third and fourth defendants being officials of the Crown, judgments in default of defence against them representing the Crown, have to be by leave of court - see O29 r14. So in the end the applications for default judgments against all the four defendants are in effect on account of failure to file defence and by motion for leave. In the case of the first and second defendants, it is the nature of the claim which required that the action be set down on motion for judgment - see O29 r 8.

The joint defence filed on 24.7.1996, on behalf of the first and second defendants is not regular because it was filed late. It was late because defence must, in any event be filed 14 days from the last day of the time limited for entering appearance, not 14 days from the day appearance was entered. In this case 14 days were allowed for entering appearance so in all the defendants had 28 days from the various dates of service, to file defences. The first and second defendants were late after 29.6.1996 and 26.6.1996 respectively. The third and fourth defendants were served with the writ on 1.5.1996 and 15.5.1996 respectively and were late in filing memoranda of appearance after 15.5.1996 and 29.5.1996 and late in filing defences after 29.5.1996 and 12.6.1996. There are recent case authorises to the effect that court cannot simply ignore the contents of late defence, it uses the contents to assess whether there would be good defence.

Default and Discretion of Court

The plaintiffs' writ of summons was in the general form of writ of summond usually a statement of claim would be served within 14 days following service of the general writ. In this case, each copy of the writ was accompanied by a statement of claim, so there was no need to serve statements of claim following service of the writ, before the plaintiffs could raise default in filing defences as ground for judgment – 022 r 1 (b). Although the statement of claim accompanied the writ, the defendants did not file their defences in time.

Conditions for success of the motion application default judgment exist should the court proceed to grant the application? It wa was my view that I needed to consider one other aspect of the rule in granting default judgment, namely, that the power of the court to grant default judgment is discretionary. It means that even if there has been proof of default and the court has satisfied itself that cause of action is disclosed, the court is not required to grant leave to enter default judgment. The court may refuse leave if in the circumstances the default judgment may be unjust. That rule in the old English case, Charles -v- Shepherd [1892] UKLawRpKQB 150; [1892] 2 QB 622 has remained the rule of practice.

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I have considered exercising the discretion in favour of granting the application, but decided against it. The reason is that the nature of the claim raises fundamental question about jurisdiction. It is arguable whether the High Court has jurisdiction in making the declarations that the plaintiffs were the original owners of land parcel No. 079-005-/LR115 when it was customary land before it was sold to a Mr. Henry Martin, described as an English planter and trader, and that the plaintiffs are entitled to the consequential perpetual estate. Questions of ownership of customary land are questions to be determined exclusively by Local Court. The High Court has only appeal jurisdiction and to a limited extent - see sections 231 and 231 B of the Lands and Titles Act. That brings into question whether a cause of action at the High Court has been disclosed in the statement of claim. Default judgment is granted when cause of action is clearly disclosed - see the case of Palmer -v- Lark [1945] 1 All ER 355. In my view, it is just for the issue to be effectually pleaded and argued upon trial. The application for leave to enter default judgment against the first and second defendants is refused.

The applications against the third and fourth defendants are also refused since in the event of success of the first and second defendants upon trial, it will not appear proper that default judgments for the same declaratory reliefs had been entered against the third and fourth defendants who are really only nominal defendants, they being merely custodians of public record of the interests in the land and who have no beneficial interest at all. Default judgment is granted on the assumption that failure to enter appearance or to file defence is admission or implied admission of the facts averred in the statement of claim. It is therefore proper that when circumstances exist that tend to negative the assumption the court should decline to exercise discretion in favour of granting default judgment. A good example arose in Australia in the case of Teremiijtelen -v- Van Arkle [1974] 1 NSW LR 525. In the case, the plaintiff claimed beneficial interest in land held jointly by the plaintiff and two defendants. One defendant failed to enter appearance. Upon trial the court found for the defendant who entered appearance. The plaintiff then applied for judgment on implied admission by the defaulting defendant. The application was under a legislation providing for implied admission of facts, a similar point. The plaintiff lost both at first instance and on appeal. It would have been unjust to grant judgment on implied facts that had been shown not to be correct. In this case the declarations sought are to the effect that the plaintiffs are the estate holders in the land, should they lose the case it will be nonsense if the third and fourth defendants had the declarations granted against them in default judgment. They have no proprietary interests in the land.

Costs are awarded against the first and secofendants in favour of the plaintiffs although I have declined to exercise discretion tion to grant leave to enter default judgments. No costs against the third and fourth defendants. I have awarded costs against the first and second defendants because defaults occurred, and the two defendants would like to proceed to defend the case.

Delivered this 23^rd day of February 1998 At the High Court in Honiara

S Lungole-Awich
JUDGE