Solomon Islands National Provident Fund v Lusibaea [2011] SBHC 181; HCSI-CC 53 of 2009 (2 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 53 of 2009

BETWEEN:

SOLOMON ISLANDS NATIONAL
PROVIDENT FUND (SINPF)
Claimant

AND:

JIMMY RASTA LUSIBAEA
Defendant

Date of Hearing: 19 October 2011
Date of Ruling: 2 December 2011

Mrs A Tongarutu for Defendant
Mr P Afeau for Claimant

RULING

Mwanesalua J:

1. This is an application to set aside the default judgment entered against the Applicant on 9 March 2010 and the eviction orders granted therewith, and perfected on 11 March 2010 after failing to file a defence.

2. The Case for the Applicant is that he had filed a defence and counter claim before the default judgment and the eviction orders were entered against him. Because of that he filed this application on 23 June 2010 to set aside the said judgment and orders.

3. The eviction orders are these:

"(1) Possession of Parcel Number 191-010-016 located at Ranadi Industrial Site, East Honiara (the property) is granted to the claimant.

(2) the Defendant, his servants, agents, invitees, licenses, or others currently occupying the property under the Defendant's authority or purported authority, vacate the property not later than 12 noon on 1st April 2010 and remove their chattels from the same.

(3) The Defendant, his servants, agents, invitees or others currently occupying the property under the Defendant's authority or purported authority, be restrained from entering the property upon vacating the same.

(4) The Defendant pay the Claimant's costs in the sum of $1,350.00."

4. The Defendant alleges that a defence and counter claim were filed on 22 October 2009 but no copy was available to the Court at the hearing on 9 March 2010. Since the issuance of the default judgment, a copy of the Defence and Counter Claim were located. A copy was sent to the High Court for its file and Solicitor for the Claimant was informed.

Consideration

5. The default judgment and eviction orders were delivered together on 9 March 2011 which both Counsel in the case attended. The Court therefore could not understand why Counsel for the Defendant said that she was 'surprised' when she learned about the eviction orders at the High Court Registry during an unknown date when she was there.

6. Counsel alleges that the originals of the Default Judgment and counterclaim were filed in the High Court on 22 October 2009. If that was correct, Counsel for the Applicant should have shown her file copy to Mr Justice Cameron on the 9 March when he heard the application for the default judgment and eviction orders on 9 March 2011. Or, if it was misfiled in another Court file relating the Applicant, then surely, the original of the Defence and the counter claim could have been placed in the present High Court file.

The application to set aside the default judgment and the eviction orders were filed on 23 June 2010. The application was only heard on 19 October 2011. There was a delay of over 15 months before it was heard by the court. The Claimant signed an agreement with Shorncliffe (Solomon Islands) Limited to purchase the property on 28 July 2006. The property was then registered in the name of the Claimant as owner on 14 December 2006. The Applicant does not seem to have a meritorious defence to this claim.

In the circumstances, the Court is not satisfied that it should set aside the default judgment and eviction orders made by the Court on 9th and 11th March 2011.

The application is therefore refused and is dismissed. The Applicant is to pay the Respondent's costs of this application. Right of appeal explained.

Order accordingly.

THE COURT