Baiabe v Tango [2017] SBHC 35; HCSI-CC 424 of 2016 (29 September 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 424 of 2016

BETWEEN: JOHN HERMAN BAIABE - Claimant

AND: CHARLIE TANGO - First Defendant

AND: ATTORNEY GENERAL - Second Defendant
(For Commissioner of Lands)

Date of Hearing: 18^th September 2017.
Date of Ruling: 29^th September 2017.

Mr. C. Rarumae for the Claimant.
No Appearance for the First Defendant.
Mr. A. S. Poa for the Second Defendant.

KENIAPISIA; PJ:

RULING ON APPLICATION FOR DEFAULT JUDGMENT

1. Claim was filed on 28/9/2016. Amended claim was filed by order of this Court on 6/6/2017. This followed first defendant’s failed application to strike. Court order intended that Commissioner of Lands (COL) be made an additional defendant party, with the Registrar of Titles (initial defendant). However the amended claim dropped the Registrar of Titles and replaced with the COL. This was a mistake and can be rectified. Registrar of Titles should be made a defendant party under the amended claim. Registrar of Titles is made a party even though it appears he will not wish to be heard and will most likely abide a decision of the Court. In any event, he should still be given opportunity to be heard.
   
2. First defendant entered an amended defence to the amended claim on 21/6/2017. He later applied to strike the claim which this Court declined in a Ruling dated 5^th May 2017.
   
3. The second defendant did not file an amended defence to the amended claim. To the original claim, the Registrar of Titles, as the then defendant had filed a defence on 10/4/2017.
   
4. Commissioner of Lands did not file an amended defence to the amended claim. This prompted claimant to apply for default judgment, having already obtained leave as per Rule 15.12.22.
   
5. On reasonable delay Counsel for second defendant explained without sworn statement (ss) evidence in oral submission that, the COL failed to give instructions. Counsel for the second defendant also submitted that the proper approach is to proceed to trial, because the first defendant had already filed a defence. And that the Registrar of Titles must be made a defendant party, for possible enforcement purposes. Court is not satisfied there was reasonable delay.
   
6. As to arguable defence, the Court is not able to tell, because the second defendant did not disclose a draft defence.
   
7. The nature of this claim meant that the matter should proceed to trial. Claim alleges fraud and mistake against the first defendant. Fraud is a serious allegation, bordering on a criminal offence. First defendant had already filed a defence to fraud and mistake allegations. In the circumstance, a trial is warranted.
   
8. Court will refuse default judgment and order cost against second defendant only.
   
9. Orders of the Court are:-
   

9.1. Default Judgment against 2^nd defendant declined.

9.2. Cost awarded to claimant against 2^nd defendant only.

9.3. Registrar of Titles is a defendant party in addition to COL.

9.4. Leave to amend to facilitate order 9.3.

9.5. Parties to take trial preparation directions after pleadings close.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE