Sanga v Teika [2013] SBHC 168; HCSI CC 263 of 2010 (11 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

CIVIL CASE NO. 263 OF 2010.

BETWEEN:

PATRICK SANGA, MATHEW MAMONUKU, FRANK TIBUA
Claimant

AND:

AMOS TEIKA
trading as Amos Company
First Defendant

AND:

SAMLINSAN COMPANY LIMITED
Second Defendant

AND:

RENNEL AND BELLONA PROVINCIAL EXECUTIVE
Third Defendant

Date of Hearing: 2nd September, 2013
Date of Ruling: 11th September, 2013.

Mr. N. Laurere for the Claimants.
Mr. A. Rose for the First and Second Defendants.

DECISION ON APPLICATION FOR DEFAULT JUDGMENT.

Faukona J: This is an application for default judgment filed against the First and Second Defendants for failure to file defence within 28 days as required by Rule 5.37 the Solomon Islands Courts (Civil Procedure) Rules 2007.

2. This application was filed by the Claimants on 1st August 2013 pursuant to Rules 19.17 – 19.22. What really prompted the application is that an amended claim was filed on 30th December 2011, naming among others, the First and Second Defendants as parties to the cause of action. The amended claim was filed following direction orders dated 15th May, 2012. On 16th May, 2012, the amended claim was filed and served on Pacific Lawyers (former Counsels) directly at their Office, by Mr Lapoe. A sworn statement was deposed to that effect of service by Mr Lapoe, which was field on 16th May, 2012.

3. On 1st August, 2012, before filing of this application, Mr Laurere had made a search at the High Court registry at 9:10 to verify whether any defence was filed. To his satisfaction, there was no response or defence filed. This application was then filed. Forty five minutes later a defence was filed by Michael Pitakaka of Law Chamber on behalf of the First and Second Defendants.

Rules 9.45-9.47 not an authority to ground the application:

4. Mr Rose Counsel advocate for the First and Second Defendants contends that the application was brought based on incorrect rules. The proper rules to invoke which rightly accommodates or provides basis for such application are Rules 9.45-9.47. I have the privilege to peruse the Rules. Those rules are contained under the heading "default in other claims". Rule 9.45 states that if a defendant is default under Rule 9.17 (a) or (b) the Claimant is entitled to apply for judgment under Rule 9.23 that is judgment for an amount specified in the claim and R9.31 so that an amount be assessed, or by Rule 9.35 for recovery of possession of land only. As per se Mr Rose's contention is out of course. Rules he refers to has nothing to do with the claim in this case which confine to trespass, damages and most probably questioning the timber rights processes. In my observation, the most honourable thing to do is to reject that contention and refuse to declare sworn statements deposed by Mr Lapoe and Mr Laurere ineffectual under Rules 1.16 and 1.17.

5. It cannot be argued as well that this is a case for assessment. Any process of assessment will follow after the issue of trespass has been determined. In determining trespass a lot of issues to be taken into consideration, the most fundamental issue is ownership of the land. If default judgment is given in this case it would not immediately prompt any assessment of damages. The legal process available to the Defendant has to be exhausted.

The effect of filing and serving defence:

6. Mr Rose further argues that it is irrelevant to file this application since defence has already been filed. The Claimants cannot seek judgment be entered on their behalf for relief claim in the statement of claim. Mr Rose refers to the case of Koroi V Transwest Shipping Company Ltd[1]. In that case, His Lordship considered among other issues, principles that were applied in various common law jurisdictions, in particular England and Australia. The relevant principles I would extract from the case are;

1. The Court is urged to perceive if there is any reason to doubt whether injustice may not be done by giving the judgment.

2. That the Court will not reject any defence that is served after the expiration of the prescribed time limit for the delivery of defence. There are two possible reasons for this;

a. That defence has been filed and served though late.

b. That the Claimants failed to act swiftly to filed application for default judgment after expiry of 28 days allowable by Rule 5.37 to filed a defence.

3. There ought to be evidence of explanation and reasons for the delay in not filing defence within time concern.

4. The question of whether there is merit in the defence.

7. To distinguish this case from that of Koroi, I noted there are discrepancies as to dates alluded in paragraph one of that judgment. However, on thing stands out clear is that summons were filed on 26th January, 2001, memorandum of appearance was filed on 8th March 2001 (one month, ten days late), and defence was filed on 18th April 2001 (further 2 months and 22 days late).

8. In this case, the First and Second Defendants were late 7 month to file their defence. In my opinion, Rule 9.17 is quite simple; if Defendant does not file and serve response or defence within 28 days required by Rule 5.37, and there is proof of service by sworn statement, the Claimant may apply to Court for default judgment. In my respectable view, principle requirements in (1) (2) and (4) above are requirements necessary for consideration at the application to set aside default judgment. At this stage, the Court is only legally persuaded to look at the delay and reasons for the delay and whether to accept it or not. I think that is the simple and literal exponent of Rule 9.17. To go beyond is an attempt to complicate a simple application. Orders for default judgment are not ultimatum and do not conclude a cause of action. The Defendant can come back to court and apply to set aside the default judgment orders. It would be then viewed as proper time to raise issues in (1),(2) and (4) as in paragraph 6 above.

Raising the issue of timber rights process:

9. This issue is raised at the submissions. I am cautious to say whether it is proper time to question the timber rights process. It may not be a proper route to assume now because time limitation could have rendered severe adverse effect on the proper path, that is, for either an appeal or claim for judicial review. In any event raising the issue outside of time limitation is in my opinion viewed as judicial review in disguise. I am not dealing with any of those issues now or even attempt venturing into it. However, the rest of the claim for trespass and damages are still on course.

Issue of delay:

10. Apart from attempting to gather supporting principles the most important issue in an application for default judgment is whether the Defendants have good reason for delay in filing a defence. Mr Rose on behalf of the First and Second Defendants submits that they have good reason for the delay. Paragraph 7 of sworn statement of Rex Soaika stated that the file was not received from the previous lawyers (Pacific Lawyers). And that they need time to peruse and where possible seek instruction or clarifications from clients before moving forward.

11. What indeed had transpired was that on 17th July, 2013, when the notice of change of advocate was filed; a defence if it was filed by then was already 6½ months late. There is no explanation from previous lawyers available. And explanation from current Counsel appears sloppy and cannot place delay in any level acceptable in the circumstances.

12. With all that I have said, I hereby grant the application as sought.

Orders:

1. Default judgment is entered for the Claimants against the First and Second Defendants.

2. Cost in the cause.

The Court.

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^[1] [2001] SBHC; HC-CC 007 of 2001 (23 April 2001).