Manebona v Solomon Islands Ports Authority [2017] SBHC 139; HCSI-CC 203 of 2014 (13 December 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case Number

BETWEEN: GEORGE MANEBONA Claimant

AND: SOLOMON ISLANDS PORTS AUTHORITY Defendant

Date of Hearing: 18^th October 2017
Date of Ruling: 13^th December 2017.

Mr A. Hou for the Claimant
Mrs K. Ziru for the Defendant

RULING ON APPLICATIONS TO SET ASIDE DEFAULT JUDGMENT, and APPLICATION TO STRIKE OUT THE CLAIM.

Faukona PJ: This application is one with composite reliefs. The application was filed by the Defendant, on 10^th December 2014, seeking two reliefs. One is to set aside a default judgment dated 27^th October 2014, and the other is to strike out the claim on the ground that it was an abuse of process.

	Background:
2.	The Claimant was employed by the Defendant as a launch mechanic commencing in July 2001. On 15th May 2009, he was suspended on full salary for action of malicious damage. On 29th September 2009, he was finally terminated for the allegation against him.
3.	Following his termination, the Claimant instituted a claim for unfair dismissal with the Trade Dispute Panel. On 26th November 2017, the Claimant was awarded $18,200.00 which eventually was paid to him on 7th February 2013.
4.	The Claimant then instituted Civil Claim No. 26 of 2014, for other benefits he was entitled under a Memorandum of Agreement signed on 12th August 2003. The total figure claimed was $721,920.00.
	The Defendant’s case:
5.	The Defendant’s case is that this claim had been dealt with in its entirety by way of agreed settlement, and a notice of discontinuance was filed on 8th July 2014. Therefore the Claimant is estopped from reinstituting the same proceedings in this Court based on the same facts and between the same parties, which the claimant had relied on in the initial mater. The only difference is the total amount claim which is $767,690.24.
	The Claimant’s case:
6.	The Claimant’s case is that he denies conveyed instructions to his Solicitor to agree on an amount of $78,000.00 as full settlement. He never received the $78,000.00. He denies there are two cases. By his understanding he has only one case which is still continuing with no settlement yet reached.
7.	I am able to retrieve file CC 26 of 2014. The parties in that case are the same as the current. A claim in category B was filed on 31st January 2014. An amended claim in Category B was filed on 14th February 2014. The cause of action is the same as this one, premised on the same set of facts. The only distinguishable feature is the total amount claim. In the other case the total figure is $721,920.00 and this case the total figure is $767,690.24.
8.	In CC NO. 26 of 2014, the process reached the stage of hearing an application for default judgment. Service was effected by Mr Jeremy Fasi on 14th January 2014, and a sworn statement was filed to support that application.
9.	The first hearing was on 1st May 2014 before His Lordship Apaniai J. Both Counsels Mr Etomea for the Claimant and Mr Tagini for the Defendant were in attendance. The matter was adjourned for a date to be set for hearing of the application.
10.	From then on, that hearing was never eventuated because a notice of discontinuance was filed by the Counsel for the Claimant on 8th July 2014 at 1:00pm. There is no reason for the discontinuation of the claim stated. There are no further documents noted in the file.
11.	At the same time (1:00 pm) the claim in CC 203 of 2014 (current case) was filed.
12.	Later, in this case, the reasons for the discontinuance of CC 26 of 2014 emerged.
13.	From materials available, I noted there was a letter written by the Claimant’s Solicitor to Defendant’s Solicitor on 30th May 2014. The letter seemed to affirm the proposal that both Counsels had discussed previously. The letter affirmed that consent had been given that upon payment of $78,000.00 offer, the Claimant will wholly discontinue the case. Payment must be made in cash.
14.	A reply by Global Lawyers on 2nd June 2014, accepting the request for an “out of Court settlement”, on the payment of the amount of $78,000.00. The letter was signed by Mr Flickson Samani on behalf of the Principle Mr. M. Tagini.
15.	The Defendant then raised a payment voucher payable to Global Lawyers in cash, in June 2014. The amount of $78,000.00 was collected and signed by Mr Flickson Samani on 2nd June 2014.
16.	It would appear if facts transpired in relation to out of Court settlement are genuine and true, then the Claimant was expected to collect his $78,000.00 from his Lawyers BETS Legal Services. The fact that the Claimant denied receiving any money from his Lawyers is a mystery which ought to be investigated thoroughly. At the end thereof, the notice of discontinuance filed on 8th July 2014 was to settle the claim there and then, which had been done conclusively. If money had been collected by Mr Samani of Global Lawyers, did he give the cash money to BETS Legal Service immediately who in turn will convey to the Claimant? If nothing was received by the Claimant then something fizzy and strange had been going on in this case. No wonder cash payment was persistently required by Mr Etomea in his letter dated 30th May 2014.
17.	Upon payment of the sum of 78,000.00 as settlement agreement, in normal circumstances, this file should be closed from being remerging or reinstituted again. Like I have described, a mystery was dawn upon this case; so thorough investigation ought to be ensured to reveal the underlying truth. Amazingly, the Counsel for the Claimant filed this case CC 203 of 2014 on the same date and time when he filed the notice for discontinuance.
18.	For the Defendant, the case was settled once and for all, with the honest belief that both Counsels had done their part to negotiate a settlement out of Court, which was consented to, and the amount agreed upon had been paid. To receive another claim with the same parties, premise on the same set of facts, is critically unthinkable. Perhaps, no wonder the Defendant had not responded or filed a defence to the second claim, though it may have presumably served. This failure had led to filing of an application for default judgment on 7th August 2014 by the same Counsel for the Claimant.
19.	What Mr Etomea did was perhaps induced by some evilness. Nothing could escape his human mind that he by his letter, involved in the negotiation to have the matter settle out of Court. Eventually it was consented and the amount agreed upon was paid. Mr Etomea with a clear mind, unclouded with any evil influence, filed a notice of discontinuance to conclude the case.
20.	To repeatedly file the same cause of action concerning the same parties with the same set of facts is an abuse of court process. And the Claimant is estopped from prosecuting such a claim. If the Claimant had not received any money from his former Counsel then he should file a civil suit against him to recover the amount due to him. Mr Etomea by his action should have some guilty conscience for unduly attempting to put the Defendant on double jeopardy.
21.	As such I must conclude by dismissing the claim in CC 203 of 2014 accordingly.
	Default judgment in CC 203 of 2014:
22.	According to the materials the claim was served upon the Defendant on 8th July 2014 at 10:45 am. Amazingly the stamp on the claim, signifying date and time of filing denote that it was filed on the same date but at 1:00pm in the afternoon. How would it be possible for a claim to be served in the morning before it was filed in the afternoon? No one with decent mind would understand the process the former Counsel for the Claimant applied. It is indeed a mischief which continues to haunt this case suspiciously.
23.	I noted the sworn statement by the Claimant filed on 12th September 2014, mentioned the error of time, but had failed to rectify that error.
24.	Despite the irregularity unrectified which the judge probably over sited, he granted the default judgment on 21st October 2014.
25.	With the irregularity of time of filing and service, it therefore warrants that service has not been effected properly upon the Defendant. The proper approach now is to set aside the default judgment granted by this court on 21st October 2014.
	Crucial Study of the Claim:
26.	I have given time to critically review the claim and study the entitlements the Claimant is entitled to. The general over-view is that whether it is most appropriate to say that the Claimant is entitled to all the entitlements under his employment contract, in terms of long service benefit.
27.	For instance, the Claimant claimed housing allowance for 6 years. The question is was he not paid housing allowance for 6 years when he was employed by the Defendant?
28.	It is not clear as to the six year period the Claimant claimed. Is it 6 years from when he was terminated to 2nd of June 2014 when payment of seventy-eight thousand dollars ($78,000.00) was paid through the former Counsel for the Claimant, which in my view is only five years not six. Those are mere two examples, there are more to be verified.
29.	With great respect, the claim requires further and better clarification. It would be prejudicial and unfair to affirm the correctness of the default judgment. Therefore I must set aside the Default judgment granted on 29th October 2014 and dismissed the claim in it’s entirely.
	Order:
	1.	Set aside the default judgment granted on 29th October 2014.
	2.	Dismissed the claim in it’s entirely forthwith for being an abuse of court process.
	3.	Cost of this hearing is to be paid by the Claimant to the Defendant.
	The Court.