Levers Solomon Ltd v Kae [2013] SBHC 38; HCSI-CC 168 of 2012 (11 April 2013)

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

Civil Case No.168 of 2012.

BETWEEN:

LEVERS SOLOMON LIMITED
Claimant

AND:

HAROLD KAE
Defendant.

Date of Hearing: 9th April, 2013.
Date of Ruling: 11th April, 2013.

Mr D. Nimepo for the Claimant.
Mrs N. Tongarutu for the Defendant.

RULING

Faukona J: This application was filed by the Defendant on 24th October, 2012. The application sought two orders (1) Leave to extend time to file defence to the claim (2) Joinder of CEMA to the proceedings. The application is supported by the sworn statement of Harold Kae filed on 24th October, 2012.

Leave to extend time to file defence:

2. There is no dispute that the claim and supporting sworn statement were served upon the Defendant in June, 2012. There is no dispute that the defence was not filed within the period specified by the Rules. In fact, there was no defence filed at all.

3. Mrs Tongarutu explains the reasons why the Defendant failed to file a defence. She submits and draw reference to paragraphs 3 of the sworn statement of the Defendant filed on 24th October, 2012. The paragraph
Summed up in this manner. That upon receipt of the claim the Defendant belief that CEMA should be the Defendant; he is merely a honest buyer. Acknowledging that he was the Defendant he consulted CEMA in June 2012 and was informed that CEMA would deal with the case by contacting Andrew Radcliff, lawyer for Claimant at that time.

4. Later in September 2012, the Defendant approached CEMA about the letter but was informed there was no reply. Thereafter he consulted Mr Radcliffe with the copy of the letter and he was told that the Claimant instructed Mr Radcliffe not to reply the letter. Not long after he met with Mr Radcliffe, he received Court documents on the application for default judgment.

5. Rule 5.37 9(a) provides that if claim was served within 20km by road of main post office in Honiara, the Defendant must file a response or if not file defence within 14 days. If claim was served more than 20km from post office in Honiara then the Defendant must respond if not file defence within 28 days. I noted from Mr Lapoe's sworn statement filed on 15th October, 2012 that the Defendant was served personally at his residence at Lungga Station, East Honiara. I guess, Lungga station is within 20km and thus required the Defendant to file defence within 14 days.

6. It is apparent that the Defendant has misconstrued the processes. But he cannot be blamed. He is just an ordinary citizen who does not know the Rules of the Court. However, it is expected of him, that by acknowledging that he received legal documents he should seek legal advice, oral legal advice is sufficient as to what needs to be done. To proceed to CEMA to try and attempt to rely on it for relief and to assist provide legal representative is appalling. He knew CEMA was not included as a party. He should seek legal advice immediately and separately.

7. Whilst we can assert blameworthiness on the Defendant for his short comings, it has to be considered legal obligations sometimes are hard to reckon with by ordinary citizens. Receiving legal documents, at most, can cause anxiety and havoc to people. In such circumstances, it impacts the good thinking and reasoning capacity of a person. While being overwhelmed by such, there is little much to do, by then time is up and the next step of the legal process has not been fulfilled. I must say I have sympathy with the Defendant in this case. He attempted by taking the route he thought could have properly done, not realizing time is up for the next legal requirement. Whether he has the capacity to realize, or he was totally ignorant of the process. To be fair, despite his failure I am incline to accept his reasons for not filing defence according to the Rules. If I am to rule against the Defendant for not complying with the Rules then it would be prejudicial and unjustified in the circumstances where the probability of succeeding in the application for default judgement is eminent. In my view this issue must be considered correspondingly with the next issue.

Joinder of CEMA to the proceedings:

8. There are opposing arguments in respect of this issue. One which is far from being believed is the submission made by the Counsel for the Claimant Mr Nimepo, who submits that the sales transaction is a matter between the Claimant and the Defendant. And CEMA has no interest in the land and is not an entity with any legal right to sell the land. That there was an order dated 7th September, 2001 which restrained CEMA or its agents from dealing with the properties owned by RIPEL.

9. The submissions are partly correct and partly floored. The sales transaction was between CEMA and the Defendant. It would appear from evidence that CEMA indeed did not have any title to the land. Any arrangement to transfer the title to CEMA had never been concluded. In such circumstance, it placed CEMA being a legal entity, powerful in business dealing, than the individual Defendant. If CEMA should be a Defendant it should take the leading role to explain to the Court how the sales transaction was done, and why it was done. To conclude a simple sales transaction placed CEMA in a position of authority authorising the Defendant to occupy and own the land and the property on it. To expect a purchaser perhaps to explain how he purchases the property is a case half baked. Any competent Court would not able to find a conclusion justifiable in the circumstance of the case. It would be most appropriate that CEMA be joinder as party, be it first or second Defendant in this proceedings. That would accomplish full explanation of how the sales transaction was concluded. If the wrong was done by both CEMA for selling the property, which it did not own, and the Defendant for purchasing the property, then let both come to Court and explain their situations.

10. I find the Defendant had failed to file a defence within the period required by the Rules. However, that can be excused for being ignorant of the Court Rules. The more devastating action is the legal exclusion of CEMA as a party to these proceedings by the Claimant's Solicitor. It is prudent that the decision must go to the advantage of the Defendant, an ordinary citizen, other than a Solicitor who is expected to know the law and the Rules. I therefore grant the application.

Orders:

1. Leave is granted to extend time to file defence to the claim.

2. CEMA be joinder as Defendant in these proceedings.

3. Costs be met by the Claimant.

The Court.