Prince v Air Transport Ltd [2001] SBHC 136; HC-CC 212 of 2000 (21 August 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 212 OF 2000

BADEN PRINCE

-V-

AIR TRANSPORT LIMITED

HIGH COURT OF SOLOMON ISLANDS
(PALMER, ACJ)

HEARING: 20TH AUGUST 2001
JUDGMENT: 21ST AUGUST 2001

A. Radclyffe for the Applicant/Defendant
Sol-Law for the Respondent/Plaintiff

Palmer ACJ: The Respondent/Plaintiff (hereinafter referred to as “the Plaintiff”) obtained Judgment in default of appearance on 6th November 2000. Plaintiff commenced Writ of Action specially indorsed on 19th September 2000. Plaintiff was the owner of a dwelling house situated on Parcel Number 192-002-86 at Panatina Ridge (“the Premises”). He entered into a Tenancy Agreement (“the Agreement”) dated 27th October 1997 with the Applicant/Defendant (“the Defendant”) for a term of three years. It was a term inter alia, of the Agreement that rental would be three thousand dollars per month to be payable two months in advance and that Plaintiff would be responsible for payment of withholding tax during the term of the agreement (clause 4). Plaintiff claims Defendant had failed to pay withholding tax at the rate of $300 per month amounting to a total of $7,200. On 29th October 1999 a new agreement was entered into whereby it was agreed that rental would be payable at the sum of $3,600 per month. Plaintiff claims rental for the months of March and April 2000 in the sum of $7,200 remain outstanding. Further he claims withholding tax remain unpaid in the sum of $1,960 for the months of November, December 1999 and January to April 2000 at the rate of $360 per month. The total amount claimed outstanding stands at $16,360.

Plaintiff effected service of the Writ of Summons on the Defendant by registered post on 27th September 2000 at 11.15 am (see affidavit of service of Francis Taloni filed 6th October 2000). Order 9 Rule 8(2) of the High Court (Civil Procedure) Rules 1964 (“the Rules”) permits service on a company by registered post to its registered or head office. The registered or head office of the Defendant Company was Henderson Airport, Honiara (see affidavit of Rodney Kingmele filed 20 August 2001).

The Defendant failed to enter appearance within 14 days and Plaintiff applied for Judgment in default. Court entered Judgment in default on 6th November 2000. On 7th November 2000 a copy of the Judgment in default was sent by registered post to the registered office of the Defendant c/- P O Box 766, Honiara (see affidavit of Rodney Kingmele filed 20th August 2001). Connie Grouse, director and secretary of the Defendant Company deposes she received a copy of the Judgment in default on or about 22nd December 2000 via her post office box number. She sought legal assistance on 9th March 2001, some two months later. The Defendant company now comes to Court seeking to have the Judgment in default set aside and that the Defendant be allowed to file an appearance and defence within 7 days. Defendant relies on the affidavit of Connie Grouse filed 9th August 2001 and draft defence attached to that affidavit as “CG1”.

The process whereby Judgment in default of appearance can be obtained is provided for in Order 13 of the Rules. Rule 2 of Order 13 provides:

“Where any defendant fails to appear to a writ of summons, and the plaintiff is desirous of proceeding upon default of appearance under any of the following rules of this Order or under Order 15, Rule 1, he shall, before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service, as the case may be.”

Rule 2 requires Plaintiff to file an affidavit of service. This the Plaintiff claims to have done on 6th October 2000 (see affidavit of Francis Taloni filed 6th October 2000). Order 9 of Rule 12 however requires the indorsement of the writ to be made within three days of service and for such indorsement to be deposed to in the affidavit of service. Non-compliance results in the Plaintiff not being at liberty to proceed by default. I quote:

“The person serving a writ of summons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ shall mention the day on which such indorsement was made. This Rule shall apply to substituted service as well as other service.”

In order for the affidavit of service to be complete it had to mention the day on which such indorsement was made. Not only is there no evidence that the writ had been indorsed, the affidavit of service of Francis Taloni filed 6th October 2000 did not depose to that fact as required by Rule 12 of Order 9. The result is that the affidavit of service is defective and the Plaintiff cannot proceed by default. Counsels did not raise this defect in argument though it is material to the process of proceeding by default. The result is that the Judgment in default is consequentially defective and should be set aside as well. To that extent it is not necessary to consider the arguments raised as to whether the Judgment in default ought to be set aside on the premise that it had been regularly obtained. The effect of my ruling is that the Judgment had not been regularly obtained and therefore should be set aside. Having said that, I need only point out that there is nothing to stop Plaintiff from applying for leave to enter judgment in any event under Order 14 Rule 1 on the ground that there is no defence on the merits to its claim. I make this point as it had been raised in opposition to the Summons of the Defendant to set aside. I have, however, refrained from dealing with those submissions as it would have been superfluous and might prejudice any further applications, which Plaintiff might wish to make under Order 14 Rule 1. If I am to deal with them now, it might turn out to be more of an academic exercise. Those arguments could be re-agitated when raised in their proper context. In the meantime some sort of directions for the progress of this case should be made.

ORDERS OF THE COURT:

1. Set aside Judgment in default obtained on 6th November 2000.

2. Defendant to file appearance and defence within 7 days.

3. Costs in the cause.

THE COURT.