Cowrie Furniture Industry Limited v Attoney General [2013] SBHC 84; HCSI-CC 94 of 2013 (16 July 2013)

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

Civil Case No. 94 of 2013.

BETWEEN:

COWRIE FURNITURE INDUSTRY LIMITED
First Claimant

AND:

T-MARIS DEVELOPMENT COMPANY LIMITED
Second Claimant

AND:

ATTORNEY-GENERAL
(Representing the Ministry for Health and Medical Services).
Defendant

Date of Hearing: 3rd July, 2013.
Date of Ruling: 16th July, 2013.

Mr. G. Suri for the Claimants.
Mr. S. Hanu for the Defendant.

RULING.

Faukona J: This is an application for leave pursuant to Rule 15.12.22 of the Court Rules.

2. The Claimant's claim for debt recovery was filed on 3rd April, 2013, and was served on the Defendant on the same date. Since the Defendant is located within 20km from the Post Office, by Rule 5.37 (e), the Defendant is required to response within 14 days. Thereafter pursuant to Rule 5.37 (c) a defence must be filed and served within 28 days from the date of service of the claim. The Defendant can file a defence after the time fixed by Rule 5.37 (see Rule 5.39).

3. Counsel for the Defendant concedes that to date there is no response or defence filed on behalf of the Defendant, but submits there are justifiable excuses for their failure.

4. The failure by the Defendant to file and serve any response and defence has prompted the Claimants to file an application for default judgment on 1st May, 2013. However, the Claimants are not entitled to any default judgment against the Defendant (The Crown) for its default without the leave of the Court obtained, see Rule 15.12.22.

5. Hence, this application is specifically seeking leave of the Court. Once granted then the Claimants will proceed with the application for default judgment in latter course.

6. Seeking leave in an ordinary English language is seeking judicial permission from the Court. Leave can be granted for various reasons. One is so that the applicant can resort to non-routine process. In this case is a prerequisite requirement of the Rules. Permission must be granted before the claimant can proceed with the application for default judgment.

7. It is not well established, judicially, the basis upon which the Court has to rely on in considering whether to grant leave or not. However, a simple acknowledgment is that having complied with the Rules by filing a claim and serving necessary documents on the Defendant, the Defendant is expected to respond and file a defence. At this stage, the Court is looking for whether the Defendant has failed initially by non-compliance with the Rules. The Claimant must show he has complied with the Rules fully. He must also show the Defendant has failed to comply with the Rules.

8. In this case, the obligation to show may not be necessary, because the Counsel for the Defendant has conceded that there was indeed no response and defence filed until now. That means the Claimant has wholly and fully complies with the requirements of the Rules. Any explanations to justify failure to comply with the Rules are a matter to be considered in the application for default judgment.

9. What transpires from the submissions at this point, are arguments encompassing issues as reasons for delay, prior knowledge of this action, ownership of the two parcel numbers, transfer consent of the two parcel numbers etc.

10. In furtherance, perhaps, the most litigated issue is whether the defendant has a meritorious defence. Mr Hanu argues that his client (Ministry of Health and Medical Services) has purchased the two parcel numbers of land following what appeared to be a verbal agreement. At this point Mr Suri argues that there is no evidence to proof any purchase, and refers to a number of sections from the Land and Titles Act that protects the rights of his clients who has the legal title.

11. From those arguments and many more contain the bulk of which could rightly said are useful when considering whether to grant default judgment or not. At this hearing, I am not required legally to determine the application for default judgment. That should come later. Suffice to say that those arguments should be preserved until an appropriate time, where the application for default judgment is actually tabled before the Court. However, they in fact over shadow what is expected in the application for default judgment in terms of law and evidence.

12. Meantime, there is an arguable case which require leave be granted so that parties have the privilege to litigate their case in the main application for default judgement.

Orders:

1. Leave is hereby granted for Claimant to proceed with the application for default judgment.

2. Cost in the Cause.

The Court.