Lae v Valahoana Company Intergrated Development [2000] SBHC 13; HC-CC 269 of 1999 (6 April 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 269 of 1999

LAWRENCE LAE AND WILLIE KAREJAMA

–v-

VALAHOANA COMPANY INTEGRATED DEVELOPMENT AND OTHERS

High Court of Solomon Islands
(F.O. KABUI), J)

Date of Hearing: 5th April 2000
Date of Ruling: 6th April 2000

F. Waleanisia for the Plaintiff
P. Tegavota for the Defendants
No representation for the Attorney General

RULING

(Kabui, J): Following the Orders I made in my ruling on 28^th January 2000, the next hearing date for this case was 2^nd March 2000. At this next hearing date, Counsel for the Defendants, Mr. Tegavota informed me that he had not been served with the Plaintiff’s Notice of Motion to vary the terms of the exparte Order I made on 20^th August 1999. The Plaintiffs’ Counsel, Mr. Waleanisia, agreed that this was so and suggested that the hearing be adjourned. Counsel for the Defendants, Mr. Tegavota agreed to the suggested adjournment but would not object to the Plaintiff’s application for leave to proceed against the Defendants for contempt of Court. Counsel for the Defendant, Mr. Tegavota also said that he would file his defence as expected of him. Counsel for the Plaintiff, Mr. Waleanisia in no uncertain terms said that the Defendants had forfeited their defence in terms of Orders for Direction 1 and 2 that I made on 28^th January 2000. The Plaintiffs, he said, were entitled to seek a judgment in default of defence against the Defendants.

The Summons for summary judgment foreshadowed by the Plaintiffs at the hearing on 2^nd March 2000 was filed in the High Court on 31^st March 2000. At the hearing of the Plaintiff’s Summons for summary judgment on 5^th April 2000, Counsel for the Plaintiffs, Mr. Waleanisia, decided to postpone the hearing of the Plaintiff’s other Notice of Motion filed on 2^nd February 2000 and an application relating to contempt of Court proceedings against the Defendants. Counsel for the Plaintiffs, Mr. Waleanisia, took this course of action as a result of submissions by Counsel for the Defendants, Mr. Tegavota and interventions by me. That is to say, the last paragraph of my ruling on 28^th January 2000 clearly states that the Plaintiff’s Notice of Motion filed on 2^nd February 2000 and proceedings for contempt of Court against the Defendants would be heard together with the Defendant’s Summons filed on 31^st August 1999 seeking to set aside the ex parte Orders I made on 20^th August 1999. This being the case, Counsel for the Plaintiffs, Mr. Waleanisia, proceeded only with the Plaintiffs’ Summons for a summary judgment against the Defendants for failing to file their defence within 7 days as per my Orders for Directions on 28^th January 2000. Counsel for the Plaintiffs, Mr. Waleanisia, also did not proceed with the Plaintiffs’ Notice filed on 31^st March 2000 seeking leave to enter judgment in default of defence against the 7^th Defendant being the Attorney General.

The issues raised by the Plaintiffs’ applications are not the same or even similar to each other. To deal with them individually together with the Defendants’ Summons to set aside would, in my view, have been even more cumbersome to say the least. This ruling therefore is only upon the issue of whether or not the Plaintiffs are entitled to be granted summary judgment in default of defence.

Judgment in Default of Defence

In this case, the Plaintiffs’ Writ of Summons together with the Statement of Claim were filed in the High Court on 17^th August 1999. The Defendants duly entered an Appearance on 31^st August 1999, 15 days later. In terms of Order 23, rule 6 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules), the Defendants should have filed their defence within 14 days from 30^th August 1999. That is to say, the Defendants should have filed their defence by 13^th September 1999 being the last day of the 14 days period permitted by Order 23, rule 6 above of the High Court Rules. Under rule 6 above, the period may be extended by the consent of the Plaintiffs in writing or otherwise by the Order of the Court whichever is the case. In this case, there is no evidence of consent by the Plaintiffs to extend time nor of any application by the Defendants for a Court order to extend time to allow the Defendants to file their defence beyond time permitted by the High Court Rules. Therefore, the last day for the Defendants to file their defence, if any, was 13^th September 1999. This being the position, the Plaintiffs should have immediately moved if they so minded against the Defendants for judgment under Order 29, rule 8 of the High Court Rules though it is not an absolute necessity to do so. The method of doing this is by motion for judgment under Order 42 of the High Court Rules. In this case, there is no evidence of the Plaintiff doing this until the Plaintiff’s Summons for summary judgment was filed on 31^st March 2000. That is a delay of about 7 months. The Plaintiffs acted only after the Defendants filed their defence on 6^th March 2000.

The Law on Procedure

In this regard, I cannot do better than to quote from Australian Civil Procedure, by Bernard C. Cairns 1981 at pages 299 – 301. In discussing the topic of judgment in default of pleadings and in particular, motion for judgment the author states

“Particular machinery is provided by the rules for the entry of default judgments where the claim is liquidated or is for damages or the detention of goods. Many claims fall outside these designations and for the claims that are outside them the plaintiff may apply to the court for judgment on motion if the defendant fails to deliver a defence. In broad terms it has been said that the distinction is between equitable and common law claims. A default judgment may be entered for a common law claim because the remedy is usually for damages. Equitable remedies are discretionary, and so the court must retain control over whether the plaintiff is to be granted relief. The point is that the motion for judgment procedure is available for those cases where the plaintiff does not have a right to enter judgment automatically. Usually that is where he is seeking a remedy which is in its nature discretionary, ...

What underlies the judgment on motion procedure is that it applies to remedies that are discretionary, and following that, the court has discretion whether to enter judgment even if the plaintiff is prima facie entitled to judgment on his pleadings. ...

In exercising its discretion the court may take account of whether the defendant has a defence. This could arise from the late filing of a defence, in which case it cannot be ignored. Or again, it may be, as a matter of fairness, that the court considers the defaulting party should have a final opportunity to deliver a pleading. If so it may defer the entry of judgment ...”

The author however points out that,

...“A motion for judgment may not provide the plaintiff with all the relief he needs, or indeed with any relief at all. In that sense it is well established that the default procedure is permissive only, it is not mandatory. A plaintiff who desires to do so need not move a motion for judgment, but may have the matter listed for hearing as if the defendant had entered a defence. ...”

The message in the above quoted paragraphs is that a motion for judgment in situations where the Defendant fails to file a defence under the rules of procedure is not an automatic end in itself in all cases. That is to say, the procedure applies well in some cases whilst it needs careful thinking in other cases. The reason is that in other cases, the relief being sought by the Plaintiff is not automatic, in which case, it may be useful to proceed to trial even in the absence of a defence (See my judgment in Harold Tarasel v Edwin Kariuvi and Others Civil Case No. 262/97 pp. 3-4).

The Plaintiff’s Statement of Claim

The Plaintiffs claim that they are members of the Nika tribe who are the owners of Sarangona Land. They claim that the 1^st Defendant had made it clear that Sarangona Land was to be excluded from logging because of Nika tribe’s objection to its inclusion. They claim Licence No. Tim/2/117 issued to the 1^st Defendant does not include Sarangono Land. They claim that by entering upon Sarangona Land, the 1^st and 5^th Defendants committed trespass and other unlawful acts for which they claim damages and other relief such an account of funds and an injunction against the 1^st and 5^th Defendants etc.

The Defendants’ Defence

The Defence was filed 7 months late. Counsel for the Defendants, Mr. Tegavota argued that though this was so, I must not disregard it. Counsel for the Defendants, Mr. Tegavota, cited no authority to back his argument up but I think he was correct as a matter of principle in Court practice. (See page 300 of Australian Civil Procedure by Bernard C. Cairns 1981 cited above and Gibbings v Strong [1884] UKLawRpCh 46; (1884) 26 Ch. D. 66). On this basis, I am obliged to consider the Defendants’ Defence despite its very late filing. Clearly, the Defendants were in breach of Orders for Directions 1 and 2 as per my ruling on 28t^h January 2000, by not acting within 14 days within which to rectify their omission in filing their defence within time. The Defendants however, in their Defence, deny that the Plaintiffs own Sarangona Land and further deny that the Nika tribe does exist. That is to say, that not only that the Plaintiffs do not own Sarangona Land but they also do not have standing to be heard in Court. They further deny that Sarangona Land was not included in Licence No. Tim/2/117 that the Plaintiffs objected at the Timber Rights hearing on 16^th December 1998, that the Plaintiffs were not represented at that same Timber Rights hearing and that the Nika tribe protested against the logging on the land within the terms of Licence No. TIM/2/117. Certain facts alleged by the Plaintiffs are also denied. The Defendants therefore say that the entry of the 1^st and 5^th Defendants on Sarangona Land was lawful and therefore the Plaintiffs are not entitled to the relief they claim in the Court.

The Remedies Sought by the Plaintiffs

The first remedy sought by the Plaintiffs in their Statement of Claim is a declaration that Licence No. TIM 2/117 does not include Sarangona Land. By its very nature, a declaratory ruling calls for the discretion of the Court depending upon the facts of the case. The second remedy sought is damages for trespass and conversion. As it is now the position in Solomon Islands, the acquisition of timber rights does not rest upon the ownership of customary land. Determination of ownership of customary land is not the function of Area Councils under the Forest Resources and Timber Utilization Act (Cap. 40). (Gandly Simbe’s case) (Civil Appeal No. 33 of 1997). It is a matter for the Chiefs and the Local Court. The third remedy sought is an account of the funds received from the sale of logs. The fourth remedy sought is an injunction which again calls for the discretion of the Court depending upon the facts of the case. The fifth and the last remedies sought are interests on damages and costs which are matters for the discretion of the Court. In my view, all the remedies sought by the Plaintiffs in their Statement of Claim except the claim for damages for trespass and conversion are matters for the discretion of the Court. Even granting the claim for damages for trespass and conversion can only be interlocutory in that the assessment of damages would still need to be separately done. The other factor for consideration is according fairness to the Defendants in that the Defendants should be given the opportunity to produce evidence at the trial on the matters in issue raised by the Plaintiffs’ Statement of Claim. The matters in issue are contentious and the Defendants must be allowed to meet their case at the trial. In fact, it would have been the same if the Plaintiffs had decided to proceed to trial in the absence of a defence by the Defendants. The problem with the default judgment procedure is that such judgment is not final in all cases. The threat of a default judgment being set aside by the Defendant does exist under the rules of practice. So one has to exercise great care and wisdom in applying the practice rules in order to derive maximum benefit from them. I think the underlying norm of the default judgment procedure in cases falling outside default judgments where the claims are liquidated or are for damages or for detention of goods, is “justice”. Each case calls for the judge to exercise his or her discretion depending upon the facts of the case. Bearing that in mind, I find that the balance of justice in this case lies in favour of the Defendants. The facts of this case are such that the Defence filed by the Defendants though filed very late does disclose a defence worthy of consideration at trial. (See Gibblings v Strong (1884) 26 Ch. D 622 above). Also, the nature of the remedies sought by the Plaintiffs is such that a default judgment as asked for by the Plaintiffs are not automatic and final in themselves. They would need further evidence to enable the court to finally dispose of them. In my view, this is a case where I must exercise my discretion in favour of the Defendants. The Plaintiff’s application for a summary judgment in default of defence is therefore refused. In view of the obvious fact that this state of affairs is the result of delay on the part of both parties, I Order that cost of this application be in the cause. The other pending applications by both parties referred to in my earlier ruling on 28^th January 2000 may now be listed for hearing at a date to be fixed by the Registrar.

F.O. Kabui
Judge