Merera v Aberam [2015] SBHC 60; HCSI-CC 254 of 2014 (22 July 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 254 of 2014

BETWEEN:

KAOTA MERERA, DAVID MAUAUA MARY MOLI AND TEBWEA TAMTON
(As joint owners of Perpetual Estate in Parcel No. 097-008-22)
Claimants

AND:

TIRETATI ABERAM (Representing herself and those occupants on Parcel No. 097-008-22)
Defendant

Date of Hearing: 22nd July 2015
Date of Ruling: 22nd July 2015

Ramo. L. for the Claimant
No attendance of the Defendant

(EX-TEMPORE)
RULING ON APPLICATIONS FOR DEFAULT JUDGMENT

Maina J:

This is an application by the Claimants for default judgment against the Defendant on the ground that the Defendants have not made any response and failed to file defence.

The application relates to a category A amended claim filed on 27th August 2014 in which the Claimants seeks the following remedies:-

1. An order for eviction of the Defendant along with her family, relatives servants and/or agents and vacant possession of the estate in Parcel No. 07-008-22 be given up to the Claimant forthwith.
   
2. Permanent injunction restraining the defendant by herself, relatives and invitees from re-entering the said property or any part thereof, for any purpose, whatsoever, unless by the express consent of the Claimants or otherwise by order of this Honourable Court.
   
3. An order for damages for trespass to be assessed or the alternate mesne profit with interest at 5% as from 13th September 2012 until such time of such eviction.
   
4. Such further orders as the Court sees fit to impose.
   
5. Cost of and incidental to the action.
   

And Ms Ramo for the Claimant submits that the claim was served on the Defendant by Matson Matauea and the proof of service was filed on 28th November 2014.

A sworn statement of Presley Suruma of DNS & Partners Law Firm confirmed that there is no response or defence filed by her on behalf of the Defendant.

And an application for default judgment was filed in Court on 9th March 2015.

Briefly the Civil Procedure Rule 2007 provides that when a case is filed with supporting sworn statements, and served on the Defendant, Rule 5.37 expressly required that the Defendant within the time required, must file a defence. Should no defence is filed the Claimant should invoke Rule 9.17 and file an application for default judgment.

The Principles governing the granting of default judgments is that granting of default judgments is discretionary and the Court must have regard to the nature of the claim. If it would be unjust in the circumstances to enter default judgment, the Court will not enter default judgment but will set the case down for trial or the judge would want to hear the evidence.

This is as stated by Kabui J and Apaniai J respectively in the cases of QQQ v Jaya Kumar Pillai and Others HCSI Civil Case No. 296 of 2012.

The Claimant seeks declaratory remedies, which are equitable remedies and in this application for default judgment the Court must consider the nature or the claim, if any late defence is filed and even no defence has been filed at all.

From the nature of the claim it is for eviction order of the defendants on the Perpetual estate in Parcel No. 097-00-22 registered in the name of the Claimants. It is noted that the notice of the claim was served on the Defendant but there was no defence filed by the Defendant against the claim of the Claimants.

What is clear in this case is that the Claimants are the registered owners of the land subject to the claim and Defendants are occupying the land. From gist the documents now with Court it is favourable to the Claimant. In other words it would not be unjust in the circumstances to enter default judgment.

I am satisfied that the amended claim was served on the Defendant but he failed or did not file a response and or defence to Claimant's claims. And therefore, I grant the order for default judgment to the Claimants.

THE COURT

Justice Leonard R Maina
Puisne Judge