Wa'ako v Haikau & Others [2010] SBHC 86; HCSI-CC 458 of 2006 (9 December 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 458 of 2006

BETWEEN

ALWYN WA'AKO
Claimant

And

ABSALOM HAIKAU
First Defendant

And

HOWARD SEGO
Second Defendant

And

RALPH HALUMANE
Third Defendant

And

WILLIAM SIAKO
Fourth Defendant

And

KENSON KEREANI
Fifth Defendant

Mr Tigulu for the Claimant
The Defendants were not present and were not represented

Date of Hearing: 7th December 2010
Date of Judgment: 9th December 2010

Ruling

1. The Claimant is asking for judgment in default. There are five defendants. Only the Second Defendant, Howard Sego, has filed a defence. At one time the Attorney General was a defendant and he had filed a defence as well. The proceedings were discontinued against him. The Claim has been served on all defendants by way of a service message on Solomon Islands Broadcasting Corporation. Notice of this application has been similarly served. I am satisfied that both the claim and the application have been duly served.
   
2. The problem I have with giving leave to enter judgment against any of the defendants is, on the basis of the claim so far filed and served, the case against the defendants is materially defective. The Claimant says that the defendants were tenants in his property. The property burnt down. The defendants are said to be liable for the loss thus suffered by the Claimant because they were negligent. In paragraph 8 of his statement of claim he says the cause of the fire is not known. There then follows the bland assertion the property burnt down due to the defendants negligence. No details are given, all that is said is the defendants were in occupation when it burnt down. Therefore, it is said, it burnt down because of their negligence. Even when asked for details by the Attorney General in a request for further and better particulars, the Claimant simply repeats the bland assertion, the defendants were in occupation, the house burnt down, it is not known what the cause of the fire was, the defendants were negligent.
   
3. That is not sufficient. It cannot be the Claimants case that mere occupation as a tenant is negligence. If it is then the case will inevitably fail. It is hard to see how mere occupation under a tenancy agreement can be, in itself, negligence. The particulars of negligence must be stated. There must be some nexus between the defendants conduct, actions, non-action or neglect and the resulting fire. It is difficult to see how the Claimant can establish that nexus when his pleadings clearly state the cause of the fire is not known.
   
4. It matters little the defendants have not responded. In actual fact there is little they can respond to. Unless the Claimant is more specific about the allegations of negligence there is nothing to defend. Thus, despite the fact the majority of defendants have not filed a defence and are well out of time to do so, this is not a situation when judgment can be entered in default.
   
5. The application is refused. As none of the defendants appeared in person or by Counsel the question of costs does not really arise. For the avoidance of doubt I order the parties to bear their own costs.
   

Chetwynd J