Ului v Famoa Council of Chiefs [2018] SBHC 90; HCSI-CC 423 of 2015 (19 October 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ului v Famoa Council of Chiefs
Citation:
Date of decision:	19 October 2018
Parties:	Martina Ului, Pius Lao v Famoa Council of Chief, Famoa Registered Trustee Inc, Commissioner of Lands, Registrar of Titles, Joe Billy
Date of hearing:	24 July 2018
Court file number(s):	CC 423 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	Default Judgment entered against the first and second Defendant on 26th April 2016 is hereby set aside. Costs of this application be paid to the first and second Defendants by the Claimants.
Representation:	Mr B. Kaihuna for the Claimant Mr M. Pitakaka for the 1st and 2nd Defendants
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 2007, Land and Titles Act.
Cases cited:	Levers Solomon Ltd v N. Leni, Ross mining v slater and Gordon

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 423 of 2015

MARTINA ULUI AND PIUS LAO
Claimant

v

FAMOA COUNCIL OF CHIEFS
First Defendant

FAMOA REGISTERED TRUSTEE, INC
Second Defendant

COMMISSIONER OF LANDS
Third Defendant

REGISTRAR OF TITLES
Fourth Defendant

JOE BILLY
Fifth Defendant

Date of Hearing: 24 July 2018
Date of Ruling: 19 October 2018

Mr. B. Kaihuna for the Claimant
Mr. M. Pitakaka for the 1^st and 2^nd Defendant

RULING ON APPLIACTION TO SET ASIDE DEFAULT JUDGMENT

Faukona PJ: This application was filed by the first and second Defendants on 26^th July 2016, to set aside a default judgment entered by this Court, in favor of the Claimants on 26^th April 2016. The application was based on R9.52 of the Court Rules.

Facts led to the grant of default judgment:

2. On 24^th august 2015 a claim in Category A was filed by the Claimants in this Court. Two days later, on 26^th August 2015, an amended claim was filed.
3. According to the sworn statement of George Leamana deposed as proof of service, stated, on 20^th November 2015 about 10:00am went to Mr Kingmele’s house at White River O2 bus stop and delivered the letter and the amended claim to a person who received it. That person had signed the 2015 Delivery Docket of Rano and Company, Barristers and Solicitors. Noted on the delivery docket was a signature of a person who received the documents. The name of the person was G. Kimmata (name not clear).
4. On 9^th February 2016, the Claimants filed an application for default Judgment upon proof of service filed by the Mr Leamana on 3^rd February 2016 and sworn statement of proof of service filed by Mr Lao on 3^rd February 2016.
5. From the sworn statements the service upon the second Defendant was done on G. Kimmata in Honiara. A copy of the claim was also served upon Mr Leni on 23^rd October 2015 at Koliae village, Shortland Islands. Again a copy was served upon Mr Dennis Tanutanu on 23^rd October 2015, at Pirumeri village in the Shortland islands.
6. On 9^th February 2016, a default judgment was entered against the first and the second Defendants including the fifth Defendant.
7. The first and the second Defendants then filed this application on 26 July 2016 to set aside the default judgment that was entered against them.
8. The jurisdiction of this Court has been well recognized that it has the power to set aside a default judgment if it is satisfied of the three legal aspects set out in R9.54 been proved. It may also make orders as required by R9.55 for the proper progress of the proceeding.
9. Interestingly Mr Pitakaka pointed out in his submissions that R9.54 entrenched into the Rules, featuring two kinds of default judgment. One is a default judgment obtained regularly and the other is a default judgment obtained irregularly.
10. A regular default judgment can be set aside where the defendant justifies his failure to defend the claim on time and establish a viable or meritorious defense with prospect of success. In such situation the Court is inclined to exercise discretion in favor of setting aside the default judgment see Levers Solomon Ltd V N. Leni.^[1]
11. On the other hand a default judgment can be obtained irregularly. In such circumstance the Defendant is entitled to as of right, and the Court has no discretion to incline to set aside, see Ross Mining V Slater and Gordon.^[2] One classical instance is where service is not done as required by the Rules.
12. In this case the Applicants rely on a number of issues. All of which was assumable deviated from what is required under the Rules. Firstly the amendment was filed without the consent of the parties. Secondly there was no leave granted by the Court for the amendment of claim to be done and filed. Thirdly the service was not effectively done as required by the rules. Fourthly the case involves incorporated bodies; therefore the Executives ought to meet before giving instructions to file a defense.

Issue (1) and (2) the amendment of the claim:

13. Any amendment to a claim can be done utilizing two ways which are made available by law. One is by way of application and grant of leave by the Court, and the other is by way of consent by the parties.
14. Practically, for the Court to grant leave, the case must have a first return date as a first call over (motion) date. In this case the first motion date was yet to be set. Services were yet to be done. There was yet a first sitting of the Court. It was in this initial period that the claim was amended; it was amended two days after it was filed. In my view there is no irregularity about that.
15. Correlated to that, is the notion of amendment by consent of parties. How could it be possible that parties will consent to any amendment if the claim was not yet being served and the Defendants concerned were not aware of any claim against them? It is a case of impossibility. In such circumstance, any consent for amendment cannot humanly take place. It is on odd reasoning that an amendment by consent can be done at that stage, it can’t be.
16. Therefore any amendment done to a claim before service does not require grant of leave or consent of parties for the reasons alluded to in paragraph (14) and (15) above.

Issue 3 service of amended claim:

17. The initial question to ask, is the amended claim not a proper document under the Court Rules? The findings I have alluded to above render the status of the claim and the amended claim not defective in any manner. Nor does it contravene R.5.35 of the Court rules.
18. The next issue is whether the services were done according to the rules. Rule 6.4 advocate any service to be done upon a Defendant must be done personally. Services effected upon a corporation must be done, or by leaving it at the registered office of the corporation, see Rule 6.30.
19. In this case services was done by leaving a copy of the amended claim in Mr Kingmele’s residence at White River on 20/11/2015. Mr Kingmele was a Secretary probably to both Defendants, not sure. Services were also done upon two Chiefs who were assumable as members of the Famoa Council of Chiefs in their respective villages in the Shortlands, on 23^rd October 2015.
20. By the authority of Rule 5.37 (d) the first and second Defendants should have filed their defenses by 5^th of December 2015, and 18^th December 2015 respectively.
21. Mr Kingmele, by his sworn statement filed on 15^th August 2016, stated he received a copy of the amended Claim towards the end of 2015 through the third party Mr Alisae Laore. According to the sworn statement of Mr Leamana, Mr Alisae was not the person who signed the delivery docket as recipient on 29^th November 2015. The person who signed was Mr G. Kimmata.
22. If Mr Kimmata was seemingly present at Mr Kingmele’s house and actually received the documents, then how would it be that Mr Laore was involved and in possession of the documents.
23. It could be that Mr Kingmele or Mr Leamana was not telling the truth. Thus left the service in limbo. In any event services were being done but not on any registered office hence not formally served. The fact is where is the registered office of the Defendants? No idea may be in the Shortlands.
24. Eventually Counsel Mr Pitakaka received instructions and made a search at the High Court Registry only to learn the file was missing. A letter was written to Mr Rano on the 16^th February 2016. At that time it was probably two months late to file a defense. What materialized later was a communication between two Counsels which subsequently concluded with a dead end.
25. It would appear Mr Pitakaka after receiving instructions acted with immediate effect by conducting a search at the High Court Registry. What cannot be understood was the fact that the file was misplaced and could not be located.
26. In any event the response and action shown by Mr Rano was not quite helpful. His focused was basically on obtaining order. Certainly by his action had prejudiced the first and the second Defendants for not even response to their Counsel’s letter.
27. I consider Mr Pitakaka’s set back was because his clients are bodies and one is an incorporated trust. Furthermore, most of the Chiefs and trustees who are members of the first and second Defendant are in the Shortland Islands, a group of islands far remote from Central Solomons, in particular Honiara. To obtain instruction could be difficult because of the remoteness and difficulty accessing transport.
28. What transpired so far reflects some elements of animosity by Mr Rano for being not helpful and carelessness by the Court in managing its file? Perceivably those unexpected circumstance can be graded as elements of delay that contributed to the delay in filing of any defense.
29. The first and second Defendants cannot be solely blamed for the delay; there are causative factors that had contributed as well. Therefore, the first and second Defendants had shown reasonable cause for delay, in particular at the initial stage which led to absolute delay.

Issue 4 Meritorious defense:

30. A meritorious defense is part of the two most important requirements outline in R9.54. The first and the second Defendants are obliged to show to the Court that they have fulfilled the requirements. One is concluded in paragraph 29 above.
31. I have read the draft defense attached to Mr Kingmele’s sworn statement in full. I am satisfied there is merit in the draft defense with good prospect of succeeding. The major issue in this case is a claim for rectification of the register under s. 229 of the Land and Titles Act.
32. If the Default judgment was intended to enter against the first, second and fifth Defendants, then what could have been expected from the Commissioner of Lands and Registrar of Titles to answer the claim for rectification of the titles. Any claim for rectification must be answered by those two Government agencies and the parties who were registered as owners. The question of fraud or mistake must be answered by the first to the fourth Defendants. Defendant (3) and (4) cannot stand alone to be questioned on the issue of fraud or mistake. It involves tri-party which legally all must be present as suspects who were alleged to have committed fraud or mistake.
33. Therefore, it is legally convenient in my view, that the first and second Defendants be given the privilege to challenge the allegations.

Prejudice to other parties:

34. On the last requirement made under R 9.54, in my view that setting aside the Default judgment will not prejudice any party substantially. Not in the sense that a cost order cannot adequately compensated.
35. Indeed what could surely be envisaged is that should the Default Judgment remains, the first and second Defendants will suffer substantial prejudice. The register may perhaps rectify without them challenging the reasons for claim for rectifications.
36. In conclusion the draft defense raises serious legal issues and should be considered in the light of the amended claim. Those issues can only be answered at full trial.
37. The strength of the draft defense in my view, out weights any undue delay, which by finding, the management of the file and due persistent for a judgment were initially contributors of furthering delay.
38. By reasons given above, I hereby set aside the Default Judgment entered against the first and second Defendants on 26^th April 2016 with costs.

ORDERS:

1. Default Judgment entered against the first and second Defendant on 26^th April 2016 is hereby set aside.
2. Costs of this application be paid to the first and second Defendants by the Claimants.

THE COURT.
................................
REX FAUKONA
PUISNE JUDGE

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^[1] (2008) SBHC 110; HCSI-CC 349 of 2007 (31 October 2008)
^[2] (2001) SBHC 162; HCSI-CC 230 of 1998 (23 March 2001)