Bemobile (Solomon Islands) Ltd v Niqe [2016] SBHC 14; HCSI-CC 76 of 2014 (16 February 2016)

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

Civil Case No. 76 of 2014

BETWEEN:

BEMOBILE (Solomon Islands) LTD
Applicant/Defendant

AND:

JOHN NIQE
Claimant/Respondent

Date of Hearing: 16th February 2016
Date of Ruling: 16th February 2016

1. Willy for the Applicant/Defendants

JSP Pitabelama for the Claimant/Respondent

RULING

Maina J:

Introduction

This is an application to set aside a default judgment against the Defendant on a claim under Category B on a money claim by the Claimant.

The application seeks to set aside a default judgment entered against the Defendant on 2nd June 2014 on the grounds that:

1. The claim was not served on the Defendant,
   
2. The Defendant was never informed of the claim neither the default judgment, and
   
3. The sworn statement of counsel John Smith Pitabelama is misleading as there is no return of service or evidence verifying service to the Defendant.
   

Brief Background

The Claimant filed a money claim on 17th March 2014 against the Defendant for a liquidated sum of $234,150.00 without interest being imposed.

Counsel for the Claimant under Rules 9.22 and 9.32 of the Civil Procedure Rules 2007 sought for default judgment and filed a request on 27th May 2014 for an order for default judgment in terms of or the orders in the claim filed on 17th March 2014. With the request he also filed draft judgment in Default.

The Registrar (Acting) responded to the Counsel for the Claimant by letter on 30th May 2014 requested and made reference to the requirement of Rules 9.18 and 9.25 of the Civil Procedure Rules i.e. an application, supporting sworn statement and proof of service. She requested these before any further consideration.

A Judgment in Default and purportedly named the then Judge James Apaniai in it was signed and perfected by the Madam Registrar (Acting) of the High Court is dated 2nd June 2014.

Issue

The issue is whether a claim for this matter was served on the Defendant.

With this issue, Counsel for the Claimant in his submission said he the claim was filed on 17th March 2014 with the statements at about 2.50pm. After filing he (Counsel JSP Pitabelama) on the same date went to the Bemobile office and served the claim to the Defendant through an officer of the Defendant Mr. Simba Paza. He knew Mr. Paza and discussed the matter with him.

On 15th May 2014 Counsel for the Claimant filed a Certificate of Service to the Defendant and another by him with the same content was filed on 27th May 2014 for the service on 17th March 2014.

Counsel on 27th May 2014 also filed a Request for Default Judgment with a draft copy judgment in Default or order.

With the request for default judgment the Registrar (Acting) by her letter of 30th May 2014 asked the Counsel for the Claimant to provide the requirement under Rules 9.18 and 9.25 of the Civil Procedure Rules before any further consideration.

Mr. Simba Paza for the Defendant in his sworn statement filed with this application to set aside the judgment in default denied or said that he was not served with any document or signed any delivery docket of some short sawing proof of service on this matter. He first aware of the matter on 6th June 2014 when the CEO of the Bemobile called him and told him that they have been served with a High Court judgment.

There is a controversy on part of the Counsel for the Claimant with his submission and sworn statements that he served the claim on the Defendant on 17th March 2014 and two separate certificates of service with same content was sworn and filed on 15th May 2014 and the other 0n 27th May 2014. It was roughly about two months after the service.

The hint of argument is why it took such long and should be proper for the Counsel to file two separate certificates of service for that service alone. Probably it was because there was no other evidence support the service to the Defendant.

It is also noted the Counsel did not response to the letter by the Registrar (Acting) of 30th May 2014 for the Counsel to provide the requirement under Rules 9.18 and 9.25 of the Civil Procedure Rules.

For the purported Default judgment, there is also no recording of proceeding or papers in the case file to suggest that it was ordered by then Judge Apaniai except the judgment in default bears his as the maker but it was perfected and signed by Registrar (Acting) on 2nd June 2014.

With this controversy or what is now before the Court it is my view that the purported judgment in default cannot stand and be set aside.

ORDERS

1. The Judgment in Default of 2nd June 2014 is set aside,
   
2. Defendant to file a defence within 21 days from today,
   
3. The costs of this application are awarded to the 1st Defendants on indemnity basis to be taxed if not agreed.
   

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge