Somana v Isabel Timber Company Ltd [2000] SBHC 45; HC-CC 032 of 2000 (9 November 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 32 of 2000

DAVID LENGA SOMANA

-V-

ISABEL TIMBER COMPANY LTD AND OTHERS

High Court of Solomon Islands
(LUNGOLE-AWICH, J)

Hearing: 13 October 2000
Judgment: 9 November 2000

C Ashley for the Plaintiff
G Suri for the Second, Third and Fourth Defendants
J Keniapisia representing the Attorney General
P Tegavota for the First Defendant (Not in Attendance)

JUDGMENT

(LUNGOLE-AWICH, J):. The plaintiff, David Lenga Somana, representing Eti Eti clan of Isabel Island, has applied for judgment against Eastern Development Enterprises Ltd, John Uluhoru and Others and Uleen Sipunaru and Others, the second, third and fourth defendants respectively. The application is on the ground that the three defendants have failed to deliver their defence to the plaintiff's statement of claim. The cause of action is in trespass and the relief claimed includes eviction, injunction and damages. The application would be under Order 29 rule 8 of the High Court (Civil Procedure) Rules; the plaintiff did not specify that in his summons application filed on 20.9.2000. The application should have been by notice of motion; nothing in this judgment turns on that technical point.

The original case was by writ of summons filed on 2.2.2000 in which Isabel Timber Company Limited, now the first defendant, was named the only defendant. Isabel Timber Company filed defence and applied to have Eastern Development Enterprises Limited jointed as the second defendant. Then the plaintiff applied to have the defence of Isabel Timber Company struck out and judgment entered against the defendant. The two applications were heard together by my learned brother, Palmer J on 23.3.2000. He granted the application to join Eastern Development Enterprises Ltd as the second defendant, he dismissed the application to strike out the defence and enter judgment. Palmer J wrote a detailed judgment delivered on 3.4.2000. The plaintiff filed amended writ of summons dated 4.2.2000, on 11.4.2000.

There is nothing on the case file to show how John Uluhoru and Others, Uleen Sipunaru and Others and Attorney General came to be joined and cited as the third, fourth and fifth defendants respectively, in the amended writ of summons. The authority for the amendment should have been stated in the heading of the amended writ of summons. I can only guess that Uluhoru and Others and Sipunaru and Others were joined because of the suggestion of Palmer J in his judgment at paragraph 3 on page 3. In my view, in spite of the suggestion, which was not a court order, the plaintiff needed leave to amend and include the new defendants because the original writ of summons and statement of claim had already been served and, beyond that, the only defendant cited had filed defence. I appreciate that in view of the suggestion of Palmer J, leave might have easily been obtained, may be even by mere consent order. That does not excuse the omission by the plaintiff to obtain the leave of Court. Even only for the reason that no leave was obtained to join the third and fourth defendants, the present application against them should be dismissed. In view of the suggestion of Palmer J, I now grant the leave necessary to join Uluhoru and Others and Sipunaru and Others as the third and fourth defendants respectively. I further grant leave to join the Attorney General as the fifth defendant because the plaintiff claims his right over the subject land through agreement with the Commissioner of Lands, an official represented by the Attorney General; the plaintiff also avers that the third defendant entered agreement with the Commissioner about a different block of land, not the one at issue in this case.

The application for default judgment arose in this way. Following the amended writ of summons filed on 11.4.2000, the first defendant delivered its amended defence. It could simply have adopted its defence already delivered and was on the case filed - see O30 r5 of the High Court (Civil Procedure) Rules. The second third and fourth defendants filed conditional appearance, within time. A conditional appearance is notice that the defendant objects to the writ of summons or to service of it on him and will in due course apply to court to have the writ of summons or service of it set aside - see O12 r17. The defendant has to present his application within 14 days otherwise the conditional appearance will be deemed unconditional and the defendant will have to file his defence within the time limited.

In this case, the three defendants failed to follow up their conditional appearance with application to set aside, and have since failed to file their defence. Technically in a case such as this one where the claim includes eviction, injunction and damages, the plaintiff, "may set down the case on notice of motion for judgment," under O29 r8. On the facts of this case, it would however, border on abuse of process to apply for judgment against all or any of the second, third, fourth or fifth defendants while the case against the first defendant goes to full trial. Should the trial end in the first defendant winning the case, the default judgment reached in a summary way will be incongruous, and the overall result of the case will be a mockery of justice. It is for such a reason that the Court has discretion in granting or refusing leave to enter default judgment see, Luxton Jovere -v- Jacob Makoto and Others HC-CC 138/94 and an old case from England, Charles -v- Shepard [1892] 2 GB 622.

The defence of the first defendant depends very much on the substance of the case against the rest of the defendants, especially against the second, third and fourth defendants. A few examples will illustrate. The $200,000 claimed by the plaintiff from the first defendant was paid to the first defendant by the second defendant on a court order by consent dated 31.8.1999 in another but related case No. HC-CC 56/99. The plaintiff was not even a party in the case. In the order by consent the first defendant gave up its claim in that case as the rightful licensee to carry out timber harvesting on the land relevant in that case and now relevant in this case, in favour of the second defendant. Can the right to the $200,000 be fairly resolved without including the second defendant in the case? The first defendant also pleads that it has not entered the land to carry out logging operations pursuant to the agreement with the plaintiff because of claims by the third and fourth defendants that they, and not the plaintiff, are the rightful persons to transfer or give timber right over the subject land to the first defendant or the second defendant; the plaintiff had no right to transfer or give timber right to the first defendant or to anyone. The plea raises the issue that the plaintiff had no right to enter the agreement he relies on for his claim against the first defendant. Obviously Palmer J saw the need to join the second defendant in the case so that the issues are effectually and completely adjudicated upon. The application of the plaintiff filed on 20.9.2000 is dismissed, all the orders applied for therein are refused.

What I have said above does not mean that the second, third and fourth defendants could ignore the Rules of Court with impunity. The reason they gave for their failure to deliver defence is not good enough, it is rejected. The three defendants were required to file their defence according to the Rules, upon their conditional appearance becoming unconditional. They have failed to do so, they must suffer sanction. They are to pay the costs of this application in any event, to be agreed or taxed by the Registrar. The three defendants have presented their defence out of time, in view of my decision above, I grant leave and order the defence to be included in the pleading.

Instead of the plaintiff applying for default judgment in a case such as this, he should have applied for direction order preferably before the Registrar. The three defendants could have been put on terms including term as to costs. From what was stated during submission by counsel, it appears that even raising the question of the default with the defendant's solicitor could have led to some agreement. This application would have been unnecessary and time would have been saved. Already too many interlocutory applications have been made resulting in too many interlocutory judgments by three judges in this case; the present application was unnecessary. In future any more interlocutory application in this case must first be presented to the Registrar to consider whether the application does not merely raise a question of direction which may be dealt with by him.

Pronounced this Thursday the 9^th day of November 2000
At the High Court
Honiara

Sam Lungole-Awich
Judge