Tova v SA and Sons Enterprise Ltd [2012] SBHC 76; HCSI-CC 232 of 2012 (23 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 232 of 2010

BETWEEN:

CLIFORD TOVA
(Representing New Kolina Transport Bus Project)
Claimant

AND:

S.A AND SONS ENTERPRISE LTD
Defendant

Date of Hearing: 12 March 2012
Date of Ruling: 23 July 2012

J Kapoke for the Claimant
No appearance for the Defendant

RULING

MWANESALUA J:

[1] This is an application by Claimant filed on 14 December 2011 for:

(1) A default judgment against the Defendant pursuant to Rule 9.17 of the Solomon Islands (Civil Procedure) Rules 2007.

(2) Any other Orders the Court sees fit to make.

(3) Costs.

[2] The Claimant filed the claim on 25 June 2010. The claim was subsequently amended on 14 July 2010. In that claim, the claimant seeks the following relief against the Defendant:

(1) The sum of $91,673.00 for monies transferred to the Defendant for the value of a bus to be paid to the Claimant.

(2) In the alternative, that the Defendant be ordered to deliver to the Claimant a bus valued at SBD$91,673.00

(3) Costs.

[3] The Claimant served the claim on the Defendant on 25 June 2010, by handing a copy of the claim to Tigi Sikile at Tamboko Village. The said Tigi Sikele accepted service of the claim.

[4] The Defendant was required to file response within 14 days and then a defence within 28 days of the date of such service. The claim was struck out by the Registrar of the High Court on 15 July 2011 for want of prosecution. However, the claim was re-instated by this Court after the Order of the Registrar of the High Court was set aside. The reasons for this setting aside of the order was because the solicitor for the Claimant had been ill for a period of time and therefore was not in a position to deal with the case. The Claimant now has a new solicitor.

[5] The Defendant was not in Court when this application was heard. The Solicitor for the Claimant did not prepare facts on the case when he sought default judgment against the Defendant. However, the facts are that the Claimant lives at New Kolina village, Valasi Ward, East Central Guadalcanal. He represents the New Kolina Transport (Bus) Project. The Defendant is a business name which operates business in Honiara. In 2008 the Claimant applied for New Kolina Transport Bus Project through the Ministry of Rural Development. The amount applied for was $93,000.00. The application succeeded and an amount of $91,673.000.00 was approved. The Claimant then made arrangement with the Defendant for the purchase of a Toyota 15 Seater Bus. On 3 March 2009, the Defendant gave a written quotation for the said bus for SBD157,250.00 to the Claimant. The Claimant was further advised to make a deposit payment of SBD91,673.00 to them. The balance of SBD65,577.00 was to be paid to the Defendant on a later date. On 17 September 2009, a cheque of SBD$91,673.00 was raised and paid to the Defendant for the said bus. The Defendant has yet to deliver the said bus to the Claimant.

[6] The Defendant has failed to make a response and defence within the required periods stipulated by the Rules after it was served with the claim. The application is accordingly granted.

Orders:

1. The Defendant pay the sum of $91,673.000.00 to the Claimant.
   
2. In the alternative, the Defendant to deliver to the Claimant a bus valued at SBD$91,673.00.
   
3. The Defendant is to pay the Claimant's costs.
   

THE COURT