Bisivotu Enterprises v C.Y Chen [2017] SBHC 23; HCSI-CC 249 of 2013 (19 April 2017)

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Mr D. Marahare for the First and Second Claimants
Mrs M. Bird for the First and Second Defendants

Faukona PJ: A category B claimed and a sworn statement in support was filed on 16^th July 2013. The claim was for damages and business loss and for specific performance under the second agreement of 2008 between the first Claimant and the first Defendant. The service of the claim was properly effect on the Defendants on 17^th July 2013.

2.	The First and Second Defendants never filed any response or defence within the period required by the Rules. Therefore an application for default judgment was filed on 30^th August 2013.

3.	On 30^th October 2013 the first Defendant filed a sworn statement and made request for further and better particulars.

4.	On 21^st March 2014 a default judgment was granted against the first Defendant. This was the result of a contested hearing of the application. There was no appeal against the grant of the judgment and orders.
5.	On 19^th December 2014, an Enforcement Order was entered and on 22^nd December 2014 a notice of seizure was also entered.

6.	On 24^th December 2014, an application for stay of enforcement order and notice of seizure and sworn statement of Shi Wei Chan was also filed.

7.	On 29^th December a further application to set aside the default judgment and suspend the enforcement and seizure orders was filed. This is the application which this ruling is in respect of.

	The issues:

8.	Whether or not the Court had set aside the default judgment dated 21^st March 2014 pursuant to Rules 9.52, 9.53 and 9.54.

9.	Whether subsequently, the Court would suspend or stay the enforcement order dated 19^th December 2014 and notice of seizure dated 12nd December pursuant to Rules 21.8, 21.0 and 17.56.

10.	On the first issue I noted the rules which allowed the Defendant to file an application to have default judgment against him set aside. And in doing so the Court has a discretionary power to exercise whether to set aside if the Defendant can show and the Court is satisfied with the requirements set out in Rule 9.54.

11.	By exercising that discretionary power vested on the Court, is basically for the purpose to avoid injustice in granting automatic judgment on default. See Levers Solomon Limited V Leni^[1], Rose Mining (SI) Ltd V Slater & Gordon^[2] and Rano V Kaipua^[3].

12.	Quite apart from that pursuant to Rule 17.55 the Court may set aside an order at any time if

	a.	..........
	b.	the order was obtained by fraud.

13.	In this case Mrs Bird relies on the fact that both Defendants were not deliberate in failing to file a defence. On the date of hearing of the default application, a document containing a request for further and better particulars were filed and a sworn statement in support. She submits that application was not entertained but default judgment was entered.

14. 15. 16.	The real problem here is that the sworn statement which contain request for further and better particulars was filed 2 months after the application for default judgment was filed, and 3 and half months after the service was effectively done upon the Defendants. But more significant was the entertainment of an inter-parte hearing of the application for default judgment. There was no appeal to the Court of Appeal filed as agreed, therefore this Court lacks jurisdiction to consider setting aside its own judgment or even to review it. The parties were represented by Counsels and the privilege of an aggrieved party to appeal was available, they did not take that opportunity hence failed to appeal. At the hearing it was expected that the Defendants would explain why they failed to file a defence on time. There was nothing and so a default judgment was entered.

17.	It is an established and accepted principle in law that the High Court has no jurisdiction to review its own judgment or order on the ground of error of law. The only remedy available to the Defendants was to appeal to the Court of Appeal^[4] (see the case of re the Estate of Felix Panjuboe^[5])

18.	Effectively, the default judgment is final and not subject to appeal^[6] and ought not to be set aside.

19.	There is a vass delay and lapse in time to challenge the judgment, is a good reason to refuse the application to set aside as the Defendants are guilty of questioning it.
20.	On the issue of fraud a question to pause, is whether the Court judgment was obtained by fraud or whether evidence in support of the grant of the judgment was obtained by fraud. In any event is a substantial issue which could have been raised on appeal. The opportunity had gone and I see no reason this Court should consider at this stage.

21.	Subsequently if successful from the first issue which the Court has already decided that it has no jurisdiction to set aside its own judgment, in particular when such judgment was delivered after a contested application for default judgment was heard.

22.	The importance of the enforcement orders and notice of seizure was because they were derived from the final default judgment from which no appeal lies. The Defendants cannot return now to apply to suspend it when both had been given full opportunity to appeal against the judgment. They failed to do so. Therefore I must refuse to grant application for suspension.

23.	I noted the case of The Annot Lyle (1886) 11 P.D which stands for the principle that a successful litigant should not be deprived of the fruits of his success. To prolong enjoyment of the fruit of his judgment require sound reason to justify an order for stay. In this case no sound reason is given. Even if it is uttered now the same could have been expected during the challenge when the application for default judgment was heard.

24.	All along the Defendants had failed to comply with the Rules. They had failed to file defence within time and they had failed to appeal to the Court of Appeal within time. Of course there are consequences arise out of such behaviour. Court cannot permit such a cause of action to continue, considering the objectives of the Rules – See Rules 1.3 to 1.5 as prevailing factors which the courts must uphold at all times.

	Orders:

	1.	Dismiss application for stay of enforcement order and notice of seizure.
	2.	Dismiss application to set aside Default Judgment and also dismiss application to suspend enforcement and seizure orders.

	3.	Cost is to be paid to the Claimants by the Defendants on standard basis.




	The Court.

High Court of Solomon Islands

Bisivotu Enterprises v C.Y Chen [2017] SBHC 23; HCSI-CC 249 of 2013 (19 April 2017)