Sawane v Dausabea [2017] SBHC 1; HCSI-CC 113 of 2015 (9 January 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION
Civil Case No. 113 of 2015

BETWEEN: CONSTANCE SAWANE AND GERENA SAWANE - Claimants
(as Joint Administrators of the estate of Francis Sawane)

AND: CHARLES DAUSABEA - First Defendant

AND: EASTERN MARKETING AND DISTRIBUTORS LIMITED - Second Defendant

Date of Hearing: 14^th November 2016.
Date of Ruling: 9^th January 2017.

Mr. L. Kwana for the Applicants/First and Second Defendants.
Mrs. M. Bird for the Respondents/Claimants.

KENIAPISIA; PJ:

RULING ON APPLICATION TO SET ASIDE DEFUALT JUDGMENT

1. Court is dealing with first and second defendants’ application to set aside default judgment, filed 6/9/2016. This is the second time first defendant is applying to set aside default judgment. The first application was dealt with in a ruling this Court delivered on 26/1/2016.
2. First and Second defendants (“defendants”) have defaulted to defend an amended claim filed on 4^th May 2016, following the Court’s ruling referred above. Court had ruled that second defendant and Bank South Pacific be joined as defendant parties. The amended claim is substantially the same as the original claim, except that the second defendant and Bank South Pacific were pulled in as two new parties; with minor amended pleadings. All claims made against Bank South Pacific as third defendant, were struck out by order of this Court perfected on 2/8/2016. Bank South Pacific is accordingly removed as party.
3. At time of first application, Togamae lawyers were solicitors for the first defendant. At time of filing amended claim, Togamae lawyers were still the first defendant’s lawyers. And so service of amended claim was made on Togamae lawyers. Was this a valid service of the amended claim?
4. Defendants argue, it was not proper service to serve amended claim on the defendants through their lawyer. This is contrary to Rule 3.11 (b). This may be true for the second defendant, being a new party. However, the second defendant is a company owned by the first defendant. Matters raised in the amended claim were already known to the second defendant from pleadings, sworn statement evidence and from the Court’s order for joinder dated 26/01/2016. Amendment was merely to pull in second defendant as a new party because of the implications raised in the pleadings and sworn statement evidence (see for instance sworn statement by Dausabea filed 5/8/2015). Court is therefore satisfied there was proper service, when service was made on Togamae, who was solicitor for the first defendant. First defendant is also the proprietor of the second defendant. Defendants ought to have known about the amended claim filed on 4/5/16 and served on Togamae. Togamae should have informed defendants or defendants should have checked with Togamae lawyers after first defendant succeeded in his first application to set aside default judgment in the 26/01/2016 ruling; where Court ordered joinder of the second defendant.
5. Court will allow the defendants’ application only on one condition that defendants pay into Court $10,000.00 to show their seriousness, failing that the claimant will be entitled to default judgment plus enforcement orders.
6. In the circumstances, the application is granted, but suspended for three (3) months to allow defendants time to pay into Court the sum of $10,000.00, failing which the suspension shall lapse and default judgment and enforcement order for possession of land reactivated.

7. Orders of the Court are:

7.1. Defendants application to set aside default judgment is granted, but suspended for 3 months from date of ruling.

7.2. Defendants to pay into Court the sum of $10,000.00, in the 3 months suspension period.

7.3. Failing the payment of $10,000.00, suspension will lapse and default judgment and enforcement order will be reactivated.

7.4. Enforcement order is halted accordingly.

7.5. Cost against defendants.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE