National Fisheries Development Ltd v Kanna [1999] SBHC 110; HC-CC 055 of 1999 (9 November 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 55 of 1999

NATIONAL FISHERIES DEVELOPMENTS LTTS LTD

v

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KENICHI KANNA
AND AKITO KITO KUDAKA

ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> High Court of Solomon Islands
Before: Lungole-Awich, J
Civil Case No. 55 of 1999

Date of Hearing: 3 November
Date of Judgment:ment: 9 November 1999

D Me for the plaintiff
D L Tepai for the defendants

JUDGMENT

(LUNGOLE-AWICH, J): National Fisheries Development Limited, NFD, a company incorporated in Solomon Islands, issued a writ of summons against Kenichi Kanna and Akito Kudaka, both non resident Japanese. NFD claimed the sum of $760,894 and interest, said to be the total of sums owed by the two defendants on a charterparty of three vessels belonging to the defendants. The vessels were deployed in fishing in Solomon Islands waters. At the time of issuing the writ of summons NFD had custody of two of the vessels, it has asked for order to appropriate them in satisfaction of the claim to the extent of $70,000.

Registrar Did Not Sign the Writ of Summons

The draft writ of summons was filed at Court on 1699, it was sealed, bu but was not signed by the Registrar, on behalf of the Chief Justice, as was the usual practice in addition to sealing before a writ of summons would be issued. The point was raised by learned counsel Ms. Damena-Tepai, for the defendants, that the writ was signed by a judge, Mr. Justice A R Palmer, instead of by the Registrar. There was nothing improper in the signing of the writ. A judge or any official of the Court authorised to sign writ may do so. The signature is to acknowledge the seal of the Court upon filing the writ of summons.

On 3.3.1999 NFD obtained leave to serve the writ of summons outside Solomon Islands, in Japan, and that it may do so by substituted service. Subsequently the writ was in fact served personally on Mr. Kanna. Mr. John Katahanas swore affidavit for the plaintiff in which he stated so and further that he had also served both defendants by sending registered mail to addresses in Japan, in accordance with the order of Court granted on 3.3.1999. The defendants did not enter appearance within the 28 days given and NFD filed notice of motion application for judgment. It obtained the necessary leave to serve all the application papers outside Solomon Islands in Japan, at the given addresses of the defendants. When the motion for judgment came up for hearing on 27.10.1999, learned counsel Mr. Hapa was in Court for the defendants, but only to stand in for Ms. Damena-Tepai. Mr. Hapa applied for and got adjournment for 7 days. The application was heard on 3.11.1999.

The Application for Judgment Opposed

On the facts before Court there was simply no support for the submission that there was no proper service on Mr. Kudaka or for that matter, on Mr. Kanna. Affidavit of Mr. Katahanas stood alone on the statement that the writ and the order of Court had been sent by registered mail. Mr. Kudaka has not filed affidavit in support of his submission. The addresses used were in fact obtained from a deed of pledge which formed part of the statement of claim. The addresses had been given as addresses of Mr. Kanna and Mr. Kudaka at the time of signing the deed. The Court order authorising service of the notice of motion took into account those addresses because they were the addresses for service that the plaintiffs applied to use. For requirements for substituted service and service outside the jurisdiction see Orders 13 and 14 of the High Court (Civil Procedure) Rules. The application of NFD for leave to enter judgment is not defeated on the ground of improper service.

The only other ground given to oppose the application for judgment was simply a general statement in the affidavit of Mr. Kanna that they have defence. Even the barest outline of the proposed defence was not given. The statement that the defendants were yet to obtain relevant documents from Japan so as to prepare defence is not good enough. What is the defence, is the question. While defence must be detailed enough, some outline of it could have been included in affidavits filed for the purpose of opposing the application for judgment. Moreover, the defendants have not explained their delay in coming to Court to answer the case against them. The grounds for opposing the application for judgment fail.

The application of or leave to enter judgment against both defendants su succeeds. I consider that the claim of $760,894 was made up of liquidated sums specified in the Charterparty. The total sum was arrived at by mere calculation of sums due on the Charterparty. It was a matter of arithmetic not investigation - see Order 13 r 3 and illustrations in Knight -v- Abbot 10 GBD 11 and Parr -v- Snell [1923] 1 KB 1. Final judgment is entered for the plaintiff for the sum of $760,894, and interest thereon from 31.3.1996 until payment. The order to appropriate the two remaining vessels is granted.

Costs of the case to the plaintiff.

Delivered this Tuesday the 9^th day of Nov 1999

At the High Court
Honiara

Sam LungoLungole-Awich
Judge