New World Ltd v Brown [2016] SBHC 192; HCSI-CC 267 of 2014 (27 October 2016)

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

Civil Case: No. 267 of 2014

BETWEEN:

New World Limited
Claimant

And:

John Brown, Mockson Jepe, Haylish Alick and John Pitu

(representatives of Irurego clan) -Defendants

Date of Judgment: 27^th October 2016

Mr Marahare for Claimant
Mr Kama for Defendant

RULING

Introduction

Maina PJ: There are two applications and were heard together by the court. The claimant is seeking a default judgment against the Defendant under rule 5.37 of the Civil Procedure Rules 2007 (Rules) for failing to file a defence and an application by the defendant seeking the dismissal of the claim under rule 9.75 of the Rules.

Brief Background

The Claimant filed a Category A claim on 27^th August 2014 seeking damages for trespass to properties and served the claim to Defendant John Brown on 5^th September 2014 at Lokuru, Rendova Islands. Defendant on 12^th September 2014 filed a conditional response but they did not file any defence.

And on 9^th March 2015 the claimant filed an application for default judgment. The application is supported by sworn statement of Presley Suruma, articled clerk of the DNS & Partners Law Firm, who stated that no defence was filed during required time under Rules. The claim was served by post and through one John Brown as evidenced by the proof service of Oloniel Tabo filed on 27^th February 2015.

On 26^th October 2015, the Defendant filed an application for dismissal of the Claim and on 4^th November 2015 also filed a defence and counterclaim.

Application for Default judgment

The application for Default judgment by the Claimant on 9^th March 2015 is simply that the Defendants did not file any defence within the time required by the Rules. And by the sworn statement of Oloniel Tabo, an officer of RSIP, he with another officer Rolland Kari and employee of the claimant Mr. Erol Salao served the copies of the claim to the Defendant John Brown at Lokuru village on 5^th September 2014. A conditional response was filed on 12^th September 2014 but the Defendants failed or did not file any defence.
Defence’s reason for not filing defence

The Defendant filed a Defence and counterclaim filed on 4^th November 2015 about one year, 2 months and few days.
Mr Kama for the Defendants in his submission said the Claim by the Claimant was already dealt with by the court. He referred me to the sworn statement of Mr John Brown filed on October 26, 2015. And he stated that on August 3, 2013 when the Defendants filed a claim against the Claimant in the H/C CC no. 66 of 2013, a summary Judgment ruling in favour of the Defendant who were the Claimant in that case. He said the claimant who was the Defendant filed a defence in that case but was rejected by the court. It was typically relates to the issue of royalties which the Defendant in that case tried or was using to offset for the properties allegedly stolen by the Defendant and or the Claimants was trying to offset from the royalties.

Claimant as a Defendant in Civil Case no. 66 of 2013 has not complied with the court orders nor had appealed against the summary judgment.

The Court

The application by the Claimant is for default judgment but the Defendants raised an issue of previous case that relates in this claim. Basically the Defendants said the Claimant’s action or claim had dealt with in the case CC no. 66 of 2013 and filed an application for an order of the court to strike out the claim and defence & counterclaim filed on filed on 4^th November 2015

Issues

First, it is important to make a ruling on the question of not filing or delay of defence and whether the action now between the parties in this case relates to the action in CC no. 66 of 2013. And as this claim is under Category A, then if that case relates to this claim, to consider the question of consolidation of the cases and the case to be for trail.

At this stage, I am also mindfully of the requirements necessary for consideration at the application to set aside default judgment i.e. if there is any reason to doubt whether injustice may not be done by giving the judgment, reject any defence that is served after the expiration of the prescribed time limit for the delivery of defence on reasons that defence has been filed and served though late, claimants failed to act swiftly to filed application for default judgment after expiry of 28 days allowable by Rule 5.37 to filed a defence and the question of whether there is merit in the defence.

And I can say this when a counterclaim is also before me in this case.

Not filing or delay of defence

There is no defence filed by the defendants at the required time under rule 5.37 of the Rules except the defence and counterclaim filed on 4^th November 2015. And the Defendants said the cause of action or issue raise in the claim had been dealt with in the CC no. 66 of 2013 when a summary Judgment ruling in favour of the Defendants was entered against the Claimant who was the Defendant in that case.
Principles governing the granting of default judgments

Granting of default judgments is discretionary and in the determination, the court must have regard to the nature of the claim. If the nature of the claim is such that 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 (QQQ v HTC Civil case No. 39 of 2003).

And further Apaniai j (as he was then) in Sukumaran v Pillai [2013] SBHC 153; HCSI-CC 396 of 2012 (20^th November 2013) also said when a defence has been filed late; the court cannot simply ignore the contents of the late defence but must use the contents to assess whether there is a good defence. If a good defence is shown by the late defence that is sufficient reason for proceeding to trial, instead of granting default judgment.

In this case, the Defendants filed a response but they did not filed any defences at the required period. To them the reason as earlier noted for not filing a defence in the claim or actions in this case is on the fact this claim or action had been dealt with in Civil Case no. 66 of 2013. In that case the Claimants were the Defendants in the case now before the court. The case relates to royalties and the claimant was using in that case to offset for the properties allegedly stolen by the Defendants or the claimant was trying to offset from the royalties.

I have read the documents and materials filed by the parties for this case and also noted from the submissions that the Claimant was the Defendant and Defendant was the Claimants in the H/C: CC no. 66 of 2013. And the previous case notably on issues of logging activities on Rendova Islands.

This claim relates the matters of logging activities on Rendova Islands which the parties had involved in the stated case. The explanation by the Defendants to my view appears to be reasonable for not filing the defence at the required time under the Rules.

Application for dismissal of the claim

The Defendants filed an application for dismissal of the Claim on 26^th October 2015 and later or after 9 days filed a defence and counterclaim on 4^th November 2015.

In the application the Defendants sought to strike out on the grounds of frivolous and vexatious and it does not disclose any reasonable cause of action and abuse of the court process. These grounds are based on the outcome or summary judgment against the Claimant in H/C CC no. 66 of 2013 and by that case the Defendant is saying the claimant is estoppel to fail this claim in this case.

Disclosing reasonable cause of action

The Court has the power to strike out or dismiss the proceedings generally or in relation to the claim under rule 9.75 of the Rules on the ground that there is no reasonable cause of action but would not do so with a cause of action with some chances of success or where a tenable case has been disclosed for relief sought Gatu V SIEA, A-G and Gold Ridge; CC No. 59 of 1995. When the statement of case discloses some cause of action, or cause some question fit to decide at trial, though weak and not likely to succeed is no good ground for striking out. Struck out should be on certainty that the cause of action is to fail More V Lawson [1915] 31 TLR 418.

The Defendants in defence and counterclaim, beside denial and prove or conviction by the court raises the same grounds or summary judgment against the Claimant in H/C CC no. 66 of 2013.
It is also noted the sum of $647,018.06 in claim though has some connection to the previous case it is on trespass and damages of equipment.

There appears to be connection of the two cases and it is my view that the nature of the claim is such that it would be unjust in the circumstances to strike out the claim. The court would need to hear evidence and arguments on the claim and the basis of the ruling in the H/C CC no. 66 of 2013.

And I am satisfied on the balance of probability, that the statement of case discloses some reasonable cause of action and affected the proceedings generally, that there may be chance of success; therefore it should not be struck out.

Orders:

The orders of the court are as follows:-

1. The application for default judgment is refused,
2. The application for dismissal of the Claim is refused,
3. This case is consolidate with H/C: CC no. 66 of 2013,
4. Matter to be listed for trail
5. Cost in the Cause
   

THE COURT

.................................
Maina L R

PJ