Multi-Chartering Shipping Services Ltd v Fairtrade Co. Ltd [2014] SBHC 29; HCSI-CC 445 of 2013 (1 May 2014)

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

Civil Case No. 445 OF 2013

BETWEEN:

MULTI-CHARTERING SHIPPING SERVICES LTD
Claimant

AND:

FAIRTRADE CO. LTD
1st Defendant

AND:

ATTORNEY-GENERAL (Representing Registrar of Titles, Commissioner of Lands)
2nd Defendant

Date of Hearing: 11 April 2014
Date of Ruling: 1st May 2014

Mr W. Togamae for the Claimant.
Mr A. Pehu for the Defendant.

RULING.

Faukona J: An amended claim in category A was filed on 11th December 2013. An electronic service was done on the same day, and a service of hard copy was served on the first Defendant on 12th December, 2013. Mr Pehu for the first Defendant admitted in Court that they had received the amended claim on 12th December, 2013. On 13th December, 2013, their office was closed for end of the year vacation and should be resumed on 12th January, 2014 for normal services. Instead of opening for public services, they moved office from Saki building, Ranadi, to BSP Building, Point Cruz.

2. Mr Pehu further explains that they would not draw up any defence because Mr Chachabule had left the country on 8th January, 2014 and returned on 28th January 2014. Despite their difficulties they have filed a defence on 17th February 2014, two months and four days after the claim was served.

3. Undoubtedly, the Defendant had failed to file a defence within fourteen days, or twenty-eight days sometimes as an acceptable grace period for cases where the Defendant resides in Honiara. Consequently, the claimant filed for default judgment on 19th February 2014 pursuant to Rule 9.17 against the first Defendant.

4. In this application, the Claimant sought two orders. One, for default judgment against the first Defendant, and secondly, an order for grant of leave to obtain default judgment against the Crown.

5. Excuses embraced by the First Defendant for late filing of defence were because of Court vacation. Court vacation does not mean closing of offices. This should apply to sitting of Court only. I do not think private law firms should take Court vacation unnecessarily for long period and absolutely close the office. If there is a need necessary to go on vacation then one solicitor should present in Office to ensure the doors of the office are opened for public to access to. In the circumstances, I do not accept the reason advance by Mr Pehu as reasonable. There is nothing in the Rules, which states that period of filing defence can be waived because of Court vacation or that public holidays and weekends be discounted.

6. It is an unacceptable behaviour and administrative inadvertent to receive a claim on the last day of work and left it unattended until holidays were over. Counsels in the employment of Rano and Company should oblige to perceive the risk of leaving the claim unattended for a month. That is certainly bound to be defaulted because the Rules only require twenty-eight (28) maximum to file a defence.

7. Further excuses that the First Defendant left for overseas on 8th January, 2014 for two weeks, had extended further difficulties. In normal practices, a defence is a simplest pleadings to file in this jurisdiction, thus will only require two to three days to accomplish. If in the absence of Mr Chachabule overseas contributed to the delay then what therefore had been done since service was done on 12th December, 2013? Twenty-six (26) days before he left the country was sufficient time for Rano and Company lawyers to file a defence if they are well organised administratively not forgetting the Rules as a guide.

8. I have read the defence that was filed. The most significant aspect of the defence was the agreements the first Defendant asserted concluded on 24th September 2011, which stated that the first Defendant had expended $794,102.20 for the Claimant for the payment and associated cost related to the Estate PN No. 192-004-671.

9. There was also a second agreement early 2013 which Mr Amoi gave $150,000.00 to Mr Dausabea for him to purchase beachedemer. Another sale of land agreement was signed.

10. In both agreements, no copies of those agreements were exhibited. There was no verification of the first agreement whether it was done verbally or in written form. Dealings with Crown land, which involved large sums of money, in my view, should involve written agreements as evidence upholding any such dealings. The two agreements are very important to enable the court to foreshadow the merits of the defence case and by granting a default judgment would be unjust in the circumstances. See Levers Solomon Ltd –v- Kae[1]and Lethy –v- Luluku[2]

11. The important aspect of the Rule in granting default judgment is the power of the Court to grant is discretionary. It means even if there has been proof and Court has satisfied itself that cause of action is disclosed, the Court is not required to grant default judgment. The Court may refuse if in the circumstances in default judgment may be unjust.

Leave to grant Default Judgment:

12. One of the orders sought is leave of the Court to obtain default judgment against the Crown – Rule 15.12.22. In this application, the Second Defendant (AG) was excused. How the order was framed was unsatisfactory. It would per se, mean that should an order is made, the Claimant would obtain leave and default judgment against the Crown automatically. I feel it would have been proper should leave is granted then the Claimant would file an application for default judgment against the Crown. The Crown is legally obliged to narrate its position and explain its failure not to file any defence. That should be the course in the right track.

13. From the submissions, I am satisfied in the evidence on the balance of probability, which warrant the grant of the orders sought.

Orders:

1. Judgment in default is entered against the First Defendant.
   
2. Leave is granted for the Claimant to file application for default judgment against the Crown.
   
3. Cost is paid by the First Defendant to the Claimant.
   

The Court.

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^[1] (2013) GMHC38; HC59 – CC 168 of 2012 )11 April 2013)
^[2] (1998) GMHC13; HC – CC 104 of 1996 (23 February 1998)