Fugui v Attorney General [2016] SBHC 61; HCSI-CC 99 of 2013 (12 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTIONS

Civil Case No. 99 of 2013

BETWEEN:

RONALD FUGUI
Claimant

AND:

ATTORNEY-GENERAL
Defendant

Date of Hearing: 26th April 2016.
Date of Ruling: 12th May 2016.

Mr. W. Rano for the Claimant.
Mr. J. Muria Junior for the Defendant.

KENIAPISIA; PJ:

RULING

1. I am dealing here with two applications. Claimant’s application is for default judgment, filed 8/7/2015. This follows the granting of leave to apply for default judgment, against the crown, as per my Ruling on 7^th March, 2016. The other application is by the defendant. Defendant’s application is for leave to extend time to file defence out of time. Though the defendant’s application was filed on 18/8/2015, I only returned it to Counsel Muria in Court on 13/4/2016. As of 13/4/16, Counsel Muria was still waiting for his application to be returned.
   
2. This case has a 2013 Civil Case reference number. However, the amended claim was only filed in December 2014. The actual date of filing in December 2014 is not known from the Court’s file – there being no date of filing in the High Court stamp.
   
3. Defendant’s reasons for not filing a defence were two fold. First, that there was negotiations and attempted settlement. Second, that there was change of political government and time was needed to verify the accounting records of payments made to the claimant.^[1]
   
4. On negotiations, the file record supported submissions by Counsel Muria, Junior. On the following dates, the matter was adjourned with view to negotiations: 22/1/2015; 12/2/2015; 19/3/2015; 14/5/2015; 28/5/2015 and 4/6/2015. On 9/7/2015 mention, it seems that negotiation failed. On 8/7/2015, claimant applied for default judgment, in view of failed negotiations. Before that, claimant also applied for leave to apply for default judgment against the crown, filed 3/6/2015. On 18/8/2015, the defendant also filed application for leave to file defence out of time, in view of failed negotiations. From file records, on the various adjournment dates mentioned above, I am satisfied that the defendant had good reasons given for late filing of defence. That the defendant’s delay was genuine and not contumelious.
   

Arguable Defence

5. I am also satisfied there is an arguable defence as per the draft defence exhibited as Exhibit JR1 of the sworn statement (ss) by Remobatu filed 22/4/16. Defendant says in the draft defence, that claimant already received what he is now claiming for in terms of (i). three months’ salary in lieu of notice, (ii). Salary on fringe benefits and (iii) Gratuity payments. The amounts paid under these three heads are also given in the draft defence pleadings ($89,836.36, $117.010.86 and $39,382.89 respectively).
   
6. There is yet a further reason; I must allow this case to proceed to full trial; in view of the nature of this claim (political appointee contract). In determining whether or not to grant default judgment the court must have regard to the nature of the claim^[2]. The legality of the contract^[3] where it excludes payment of tax must be pleaded and argued at trial. Also clause 2 (ii) of the contract, must be pleaded and argued at trial, on whether the claimant or any political appointee for that matter, should claim for the four years term of the contract, knowing fully well the fluidity of the political office, political appointees hold. It is public knowledge that political appointees’ employment is really tied to the political tenure of the political government, under which they serve. In view of our political instability, should political appointees envisage four years contract? Political appointees’ contracts are made between them and their political master cronies in the ruling government. Political appointees’ contracts are funded by public funds. Public therefore by right expects that contracts are reasonable and lawful. When the contract excludes tax, the question is, is it lawful? When contracts provides for benefit for four years, knowing the tenure of office has instability to it, is it reasonable?
   
7. Orders of the Court are:
   

7.1 Default judgment application refused.

7.2 Application for extension of time to file defence out of time granted under Rule 26.6.

7.3 Defendant to file and serve defence in 14 days.

7.4 Parties meet their own cost.

7.5 Leave also granted to accommodate any consequential amendment to pleadings.

THE COURT

JOHN A. KENIAPISIA
PUISNE JUDGE

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^[1] See statement by James Remobatu filed 22/4/2016.

^[2] Sukumaran & Others –v- Pillai & Others – cc 396 of 2012 by Apaniai J.
^[3] Copy of contract is at Exhibit JR 1 of ss by Remobatu filed 22/8/2013.