Rano v Kaipua [2016] SBHC 10; HCSI-CC 181 of 2011 (12 February 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 181 of 2011

BETWEEN:

WILSON RANO AND LEONARD ROTU
Claimant

AND:

MACLIS KAIPUA
Defendant

Date of Hearing: 9th December 2015
Date of Ruling: 12th February 2016

Mr W. Rano (In person for and On behalf of Claimants)
Mr A. Hou for the Defendant

KENIAPISIA, PJ:

RULING ON AN APPLICATION TO SET ASIDE DEFAULT JUDGMENT

1. This is an application to set aside default judgment ("judgment"). Defendant filed the said application on 22/2/2013. The application is supported by two sworn statements, the defendant filed on 22/2/2013 and 18/9/2013.

2. A lot of things have happened with the application, in terms of delay. Reasons for the long delay in dealing with the application could be traversed in a Ruling by Maina J made on an application to stay enforcement and an application to struck out an earlier order of the court which had struck out the said application to set aside. These two applications by the defendant for stay and struck out were successful in a Ruling by Maina J dated 25/5/2015, paving the way for the court to now deal with the application to set aside. It is more than 2 years before the court can hear the application to set aside.

3 Counsel Hou for the applicant made very brief remarks only in his oral submissions, saying there are no new facts and so he was merely relying on the contents of the two sworn statements referred above. I found this rather strange. It was like saying to the court, there are facts only and no law involved in this application. It was like saying the burden on the applicant in making the application is not that heavy.

4. To aid use of my discretionary power to decide on this application; I am guided by Rules 9.52 – 9.56 of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules"). In applying to set aside judgment, the defendant ought to meet the requirements stipulated in Rule 9.53 (a)-(d). The guidelines to aid the court in deciding whether or not to set aside judgment are set out in Rule 9.54 (a)-(c)-that there must be a reasonable cause for the delay in filing a defence, that the defendant had a meritorious defence and that no substantial prejudice is caused to another party by setting a side, that could not be rectified by costs order. Counsel Rano submitted the application failed to comply with the Rule 9.53 and should be dismissed. I reject this submission on the basis of Rule 1.16.

Reasonable Cause for delay:

5. I start by saying that the application to set aside did not meet the time frame in Rule 9.53 (b), in that it was filed outside of the three months of the judgment entry date. Judgment was entered on 15/11/2011. Application to set aside was filed on 22/2/2013 (about 15 months delay). Applicant/Defendant therefore need to first explain the delay in filing an application to set aside. In addition the defendant must also explain why there was a delay in filing a defence to the claim pursuant to Rule 9.54 9 (a).

6. In explaining the delay to file an application to set aside under Rule 9.53 (b), the defendant said in sworn statement (ss) evidence[1], that he did not receive the claim at all[2]. Additionally the defendant says he was not able to get legal representation from 27/3/2012[3] to 22/2/13[4] - because Public Solicitors Office (PSO) refused to act for him initially and he has no money to secure a private lawyer.

7. I looked closely at these explanations in terms of the chronology of this dispute. I adopt the chronology in the written submission by Counsel Rano, which is very helpful and for which the Court is grateful to Counsel. Chronology:-

(1). 17th/5/2011 – claimants filed claim in High Court.

(2). 13th/7/2011 – claim served on defendant not personally, but through Sam Tahoma (about 2 months after commencing claim).

(3). 5th/9/2011 – claim served on defendant personally (about 4 months after commencing claim).

(4). 1st/11/2011 – application for default judgment by claimant (in order because no Response or Defence in the time required).

(5). 15th/11/2011- default judgment entered.

(6). 16th/11/2011 – Default judgment served on defendant not personally, but through James Saotahoga.

(7). 27th/3/2012 – Court dealing with application for enforcement by claimant. Defendant had notice and also appeared. Court record showed that Kaipua appeared in person and told the Court that he spoke to PSO but PSO advised him that no solicitor was available. It must be noted that on this date, Kaipua was now aware of the claim against him, no matter he denied receiving the claim.

(8). 22/2/2013 – Defendant applied to set aside default judgment. From the judgment entry date (15/11/2011), this was about 15 months delay. From the enforcement hearing date (27/3/2012), this was about 11 months delay. Whichever is the date, it is a long delay.

8. In explaining delay to file application to set aside judgment outside of the 3 months period required under Rule 9.53 (b), it would appear that the two main reasons are non-receipt of claim and inability to secure a lawyer either public funded lawyer or private lawyer. The judgment entry date was 15/11/2011. This is approximately 15 months delay. In between on 27/3/2012, the defendant had knowledge of this proceeding, when he appeared before the Registrar on hearing of an application by the claimant for enforcement. Court record showed that, the defendant appeared and said that he did not receive any claim before this. Additionally record also showed that, he had sought assistance from the PSO, but PSO advised him that no solicitor was available. Matter was adjourned to 10/4/2012 and defendant was advised to see a lawyer. From 27/3/2012 to 22/2/2013, the defendant had struggled to engage a private lawyer. He did not have the money[5].

So the reason for not meeting the 3 months requirement was there was no lawyer. Now the 3 months is calculated from the date of default judgment entry (15/11/2011). The default judgment was served on the defendant (not personally) on 16/11/2011[6]. To apply for setting aside, the defendant ought to have knowledge about default judgment. Where the default judgment was served on a third party the Court cannot be certain, whether defendant had knowledge. In discussing these reasons for delay, the Court is of the view that the defendant had explained satisfactorily - why he did not apply inside the 3 months period. The dominant reason being the inability to secure either a public or private lawyer. Private lawyers are costly to engage and not many Solomon Islanders can afford. Even the PSO, is unable to help the public as we know from public knowledge. Application to set aside default judgment can only be made by a lawyer, not a lay person. I am therefore satisfied with the explanation for not meeting the 3 months period as required under Rule 9.53 (b).

9. The next delay, I must consider is the delay in filing a defence under Rule 9.53 (a). The explanation given by the defendant is again the same – did not receive claim and inability to secure a lawyer up until the time of application to set aside (22/3/2013). On receipt of claim, I am satisfied the defendant received the claim on 5/9/2011[7]. So it leaves the defendant with the only other valid reason for not defending the claim was inability to secure a lawyer. That inability existed from 5/9/2011 (receipt of claim), through to 27/3/2012 (enforcement hearing) up until the 22/3/2013 (application to set aside). Is that a reasonable cause for the delay in making a defence? Accessing lawyers in Solomon Islands is not easy. PSO – the lawyers for the public cannot discharge their constitutional mandate[8], to providing legal assistance to the public. The reason giving in the ss evidence for the PSO's refusal to provide legal aid to the defendant is "No lawyer was available"[9]. This is serious. The intentions of the Constitutional founders are not facilitated and implemented by the responsible arms of government. This much we know. Why PSO does not have enough lawyers, we do not know. But one thing is clear; the public are being denied their constitutional right to access public legal aid from the PSO. The defendant's case is a classic example. I know from private practice, accessing legal aid from the PSO is a real problem. I have referred clients, who do not have money to get assistance from PSO. In one case the client came back to me after unsuccessfully attempting to get assistance from PSO. He was desperate. I arranged that he paid me in kind because he does not have money.

10. Being unable to get legal aid from PSO, the defendant took one year to secure the services of a private lawyer - ASG lawyers. This was because; he was faced with financial hardships[10], in a time frame of about one year. Is this reasonable time to find money to engage a private lawyer? From my experience as a private practitioner, I would say yes. Private lawyers are expensive to engage. Law firms charge $600 - $1,000.00 per hour for their legal services. It is reasonable in my view for someone to fundraise in one year to engage a private lawyer. In the final analysis, the defendant had shown reasonable cause for delay in filing a defence.

Meritorious Defence - Is there one?:

11. Meritorious defence has been defined in case law to mean: whether a triable issue is disclosed[11], or whether there is a triable defence[12] or whether an arguable defence[13] is shown. I had considered the draft defence at Exhibit MK7, of the ss by the defendant filed on 18/09/2013. I can say that a triable defence or arguable defence or triable issue (s) are disclosed, in the draft defence. The defendant is alleging that Parcel No: 191-002- 75 ("75") was registered in the names of the claimants on the grounds of mistake and or fraud. Mistake and or fraud because 75 was not part of Runikera's estate and yet got transferred to the claimants on the basis of a letter of administration granted to Rotu in 2008/2009. This is the arguable defence that must be tested at trial - that 75 were registered in the names of the claimants on a mistaken representation. And the mistake alleged are particularised in paragraphs 1 (vi) to 1 (vii) of the statement of case in the draft defence.

Prejudice to another party by setting aside that cannot be cured by costs award:

12. When I consider all the materials before me; I am also satisfied that there will be no prejudice from setting aside the judgment. If there is a prejudice it can be mitigated by award of costs. Let me explain what I mean:-

(1). The claimants have title to the disputed property. Nothing will affect that status quo. The claimants' interests remain unaffected at setting aside judgment. It will remain so until trial.

(2). Similarly, the defendant too will not be affected by setting aside judgment. The defendant is on the disputed property. Security of the property is assured. If the defendant is earning income from being on the property, then all incomes must be paid into a joint trust account. Parties to consider this and take appropriate actions.

(3). The disputed property is a plot of land. The disappearance of the property is unlikely to happen. The land will be there till conclusion of this case. For the avoidance of doubt, I ordered that the land is not sold till conclusion of this case.

(4). The only prejudice, I can see is the cost the claimants had incurred in applications for: default judgment and enforcement. These are costs that claimants had incurred due to failure by the defendant to file defence. These prejudicial costs could be rectified by awarding costs to the claimants. I order accordingly that the defendant pay for costs of these two mentioned applications, in the sum of $4,000.00.[14] Must be paid before trial.

(5). The other prejudice that the claimants had submitted on was since judgment they had used the disputed property to obtain a loan from Credit Corporation Limited (CCL). And that the said CCL now has a charge/mortgage over the disputed property. For now that mortgage will not be affected either. The charge remained unfettered at setting aside just like the title of the claimants remains unfettered at setting aside. For the avoidance of doubt, I hereby ordered that the mortgage remain intact and not affected by setting aside, pending conclusion of this case.

13. The application is granted and Court order setting aside of the judgment perfected 15/11/2011. Parties to prepare matter for trial. Order accordingly.

THE COURT

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JOHN A. KENIAPISIA
PUISNE JUDGE

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^[1] See ss by defendant filed 22/2/2013 and 19/9/2013.
^[2] See chronology which says claim initially served on defendant through a different person named Sam Tahoma.
^[3] This was when defendant appeared in Court on an application for enforcement hearing by the claimant following default judgment.
^[4] Time when defendant engaged Allan Hou and Hou filed an application to set aside default judgment.
^[5] See ss by Kaipua filed 18/09/2013.
^[6] See chronology of events by Mr Rano.
^[7] See ss of proof of service by Mr. Kwaomae filed 1/11/2011.
^[8] Section 92 (1) of the Constitution.
^[9] See ss by Defendant filed 18/9/2013.
^[10] See ss by Defendant filed 18/9/2013.
^[11] Kayuken –v- Harper (1987) SILR54.
^[12] Dora –v- Walalau (2010), Unreported Civil Appeal Case N. 5 of 2010.
^[13] Same Dora case in foot note 12.
^[14] See schedule 3, Part 3, of the Rules – Scale No. 6 – costs for interlocutory applications in High Court proceedings.