Fakani v Abana [2016] SBHC 4; HCSI-CC 343 of 2013 (22 January 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ).

Civil Case No. 343 of 2013

BETWEEN:

SILAS FAKANI
Claimant

AND:

HONOURABLE STEVEN ABANA
Defendant

Date of Hearing: 1st December 2015
Date of Ruling: 22nd January 2016

Mr W. Rano for the Claimant
Mr C. Hapa for the Defendant

RULING APPLICATION TO SET ASIDE DEFAULT JUDGMENT

Faukona, PJ: This is an application by the Defendant by virtue of Rule 9.52 to set aside the default judgment entered against him on 5th December 2013.

Facts:

2. A claim in category B was filed by the Claimant on 17th September 2013. In the claim the Claimant seeks judgment in the monetary value of $540,000.00 with interest and costs.

3. By sworn statement of Erick Wate, filed on 29th November 2013, deposed that he personally served the statement of claim upon the Defendant on 30th September 2013 at around 11.45 am at the Parliament House compound in Honiara.

4. On 11th October, Mr Fakari'i, Counsel for the Defendant filed a response, which he acknowledged receipt of the claim and will file a defence within 28 days.

5. There was no defence filed within the period as promised, hence, counsel for the Claimant filed an application for default judgment on 4th November 2013. On 5th of December 2013 the Court entered a default judgment against the Defendant. The major evidence relied on; in such occasion, was the sworn statement of Mr Wate who deposed serving the claim personally upon the Claimant (read paragraph 3 above).

6. Despite no copy of order for execution cited on record, the default judgment orders were executed at latter stage and certain automobile items were executed, one tractor and two water tanker trucks AB9572 and AB9570.

7. On 14th February 2014, the Defendant filed this application to set aside the default judgement, and on 28th February 2014, he filed an application to stay execution of judgment. The application for stay seemed to be loosed sight of and was not pursued. Perhaps the Counsel basically relies on the application to set aside which is the major application, where if it goes along in his favour, it will render application for stay ineffective. Practically the execution has been naturally on halt awaiting the ruling in this application.

Defendant's Case:

8. As an Applicant his submissions are based on the law that the default judgment entered on 5th December 2013 was irregular. His argument is focussed on the fact that the Defendant as a Member of Parliament for Fataleka Constituency has parliamentary privileges under Section 2 of the Prescription of Parliamentary Privileges, Immunities and Powers Act 2007. Essentially the argument was necessitated by the fact that the documents were served within the precincts of the Parliament House.

The Claimant's Case:

9. The Claimant's argument is based on the fact that it is not the question of irregular service, but a question of not filing a defence. By accepting the service the Defendant then instructed a Solicitor to file defence notwith-standing the manner the service was done and where. Again by filing a response the Defendant had waived his rights to rely on the deficiency of service if there is any.

The Issue:

10. The issue is whether the default judgment of this Court dated 5th December 2013 was irregular, due to service of the claim was irregular and non-effectual on a Parliament Member who was clothed with Parliamentary Privileges.

The analysis:

11. It is worthy to adorn on the outset that the general powers of the Court in decision making, in particularly to set aside a default judgment is discretionary. However, by virtue of the case ANZ v Leonard Takisi[1], the Court adopted the decisions in Analaby V Praetorius[2], Ross Mining (SI) Ltd and Others V Slater and Gordon (A Firm) and Others[3] and Goh (trading as Goh and Partners) V LCL Enterprises Limited[4]. In those cases, the Courts anonymously agreed that discretion of the Court is only applicable in regularly obtained default judgments. Where a judgment has been obtained irregularly, the Court has no discretion but to set aside, except as to the issue of costs.

12. The argument that the default judgment was irregular on the basis that the service of the claim was done on the Defendant who was a Member of Parliament, at the precincts of the Parliament whilst the Parliament was in session. From the Claimant's submissions, it is admitted that the claim was served upon the Defendant outside of parliament premises but within the precincts when the Parliament was adjourned.

13. Section 2 of the Prescription of Parliament Privileges, Immunities and Powers Act 2007 states;

"For purposes of section 69 of the Constitution and until otherwise prescribed by Parliament and its members shall be those of the Commons House of parliament of the United Kingdom of Great Britain and Northern Ireland and its members existing at 7th July, 1978"

14. The Counsel for the Defendant has listed a number of privileges and immunities of the Common House of Parliament of United Kingdom and Northern Ireland. The most appropriate privilege and immunity is "freedom from service of Court documents within the parliamentary precincts". The sources from which he acquired the document is an extract from WWW parliament UK website chapter 2 and an article written by Jaya Godhwani which explores the historical evolution of parliamentary privileges (pages 8, 9 and 10).

15. I have no doubt in my mind that Members of Parliament, including the Defendant has the prescribed parliamentary privileges including service of Court documents within the precincts of Parliament. Of course they are immune from that. In other words, any services done in the Parliamentary precinct is in contravention of that freedom and amounts to irregularity. Whether the Parliament is in session or not is not an issue. It is truly under this instance that the Counsel for the Defendant contended that because service was done in contravention to that freedom, thus render the default judgment on 5th December 2013 irregular.

16. On the other side of the coin, the Counsel for the claimant contends that the Defendant cannot rely on the irregularity on the basis of parliamentary privileges because he had acknowledge service and had given the papers to his lawyer of the same firm as the current solicitor. The Counsel by filing response had specifically stated that he will file a defence within 28 days of service. By filing response in that manner with promise to fulfil, clearly implicate that defence will be filed within 28 days from the date of service.

17. The question whether the defence will contain pleadings related and upholding argument on parliamentary privileges or otherwise, has to be filed within 28 days according to the Solicitors promise. It is not the question about the irregularity of service, but should it be a clear point of contention, that still must be filed within the period promised to be filed.

18. On another perception, the Counsel for the Claimant refers to a Canadian case of Saskatchewan River Bungalows Ltd V Maritime Life Assurance[5], Justice Major stated on page 8, paragraph 2;

"The essentials of waiver are thus, full knowledge of the deficiency which might be relied upon and the unequivocal intention may be expressed in a formal fashion or it may be inferred from conduct".

19. In whatever fashion the intention to relinquish the right must be communicated by way of defence within agreeable period of time. There is no justification since no consideration moves from the Defendant whose favour a waiver operates.

20. By foregoing reliance on the right of defect, the fact that it was not communicated by way of a defence, subject to the rules, nothing was brought to the attention of the Court for adjudication. The preliminary consideration must be had to the processes advocated by the rules. If the rules are breached in filing then whether a party has meritorious case or not it is bound to be dismissed.

21. I have noted that one and major legal essentiality is an application for default judgment, is the law expounded in the case of Dora V Walalau[6] where the Court of Appeal of Solomon Islands stated on page 4, paragraph 2;

"More fundamentally, despite no reference in the rule, we consider in the future that normal applications to set aside a default notice should be accompanied by, or on behalf of an affidavit by the defendant verifying the draft defence, setting out the factual basis for such defence and exhibiting relevant documents".

22. All this Court noted from the file record is the application to set aside default judgment filed on 14th February 2014 and a supporting sworn statement deposed by Mr Anifolu filed on the same date. Certain documents were attached to the sworn statement. Further sworn statement was filed by Mr Anifolu on 28th February 2014 and disclosing further documents. However, there was no draft defence accompanied the application to set aside the default judgment. If this Court has to uphold the law in precedent, then it is one way that our Courts are formulating our own Solomon Islands law of jurisprudence. To defy it, is a disgrace which must be resulted in the decision going against the applicant (in this case the Defendant).

23. Rather amazing are the two sworn statements deposed by Mr Anifolu disclosing personal documents of the Defendant. It would have been better if the documents were exhibited to a sworn statement deposed by the Defendant himself. It would be direct evidence from him. In this case he was using someone else to do it for him. In the event he is called to be cross-examined will he effectively answer the questions? I do not think so.

24. I have checked the total amount stated in the claim which is $540,000.00 comparing that with the amount awarded in the default judgment are the same. There is no ambiguity or difference in figure.

25. With the analysis and all the reasoning I have encompass in this ruling, I am not convinced at all that the default judgment ought to be change. Therefore, application to set aside default judgment must be dismissed.

Orders.

1. Application to set aside default judgment dated 5th December 2013 dismissed.

2. All orders therein remain.

3. Cost of this application is borne by the Defendant and payable to the Claimant.

The Court.

---

^[1] (2009) HCSI – CC No. 83 of 2009 (23 March 2012)
^[2] (1888) 20 OB 764 3. (Unreported, HCSI, CC No. 230 of 1998, 23/3/2001
^[3] (Unreported, HC-SI CC No. 230/3/2001
^[4] (Unreported) HC-SI, CC No. 138 of 2005, 9/10/1995
^[5] (1994) 2 SCR 490, pages Justice Major
^[6] (2010) Civil Appeal No. 5 of 2010.