Tropical Forest Resources Ltd v Maenu [1998] SBHC 140; HCSI-CC 79 of 1997 (7 May 1998)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 79 of 1997

TROPICAL FOREST RESOURCES LIMITED

v

PAUL MAENU AND BEN MAENU

Before: Lungole-Awich, J

Hearing: 7 May 1998
Judgment: 7 May 1998

Ex Tempore

Counsel: Mr. S. Patrick of Sol-Law for Plaintiff
Mr. R. Teutao for Defendant

JUDGMENT

On 1.7.1997 judgment was entered in favour of the plaintiff, against the defendant. The judgment was under 0 13 r5 of the High Court (Civil Procedure) Rules, the defendant having failed to file memorandum of appearance within 14 days, the number of days limited for entering appearance. The writ of summons in the action was filed on 4.4.1997 and served on 22.4.1997. It was over 2½ months before the interlocutory judgment of 1 .7.1997 for damages to be assessed was entered. The first attempt to enter judgment had been refused by court on 7.6.1997 because the plaintiff had sought to enter final judgment for stated sum of money and costs instead of interlocutory judgment for damages to be assessed. The plaintiff's claim was for damages the result of destruction or damage to its property which included heavy earth-moving machinery, trucks, fuel and other things required in operation to harvest timber.

Undue delay may lead to application to set aside default judgment being rejected. See the cases of Samson Poloso v Honiara Consumers Co-operative Society Limited [1988/89] SILR 16 and Kayuken Pacific Limited [1987] SILR 54. The effect of delay on applications based on irregular pleading is provided for in 069 r2; it is not relevant to application to set aside judgment, as has been suggested in submission.

After considering the facts deposed to in the affidavit of the defendant, sworn on 7.5.1997, filed the same day, and the able submissions of both learned counsel for the plaintiff and defendant, I reached the conclusion that given the personal circumstances of the defendant, and the fact that he sought assistance from unto 4 chambers of solicitors in vain, his delay to apply for set aside of judgment be excused. The difficulty in his application remained that he has not demonstrated to court by the affidavit evidence or by submission that he has arguable defence. He has raised a proposition that his action was, "self help" and has legal basis. I think he is wrong both on the facts and in law. On the facts there is no stretching of words sufficient to let me say that loading a barge with equipment in Honiara, or even landing it on Malaita Island, was any act associated with timber right definition in S.4 of the Forest and Timber Utilisation Act. I agree that timber right is a composite term that includes construction of road and log pond. The plaintiff had not done anything within or associated with the definition of timber right. In law the proposition of self help is totally baseless. Even if the plaintiff took some step associated with logging, the attack on its property would not be defence to its claim arising from the attack.

On the other hand, paragraph 13 of the affidavit of the defendant is a clear confession to damaging property of the plaintiff, an act which attracts liability. He stated, among others, that, “by way of self help to ensure that no logging machineries are shipped to Manaoba Island I ordered my men to damage the equipment that were to be shipped by LC Mova “. The question of remoteness of some items of the damages claimed is part of the process of assessment of damages, not defence, evidence and submission about it will be heard during proceedings for assessment of damages. It is not an issue in defence.

The application to set aside the default judgment of 1.7.1997 is dismissed. Costs to the plaintiff.

I think it is fair, at this stage, to grant adjournment so that further instruction may be taken by counsel for the defendant. I adjourn the case for assessment of damages to a date to be assigned by the Registrar.

Delivered this 7th day of May 1998

Sam Lungole-Awich
JUDGE