Gala'au v Seda [2019] SBHC 40; HCSI-CC 163 of 2014 (3 May 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Gala’au v Seda
Citation:
Date of decision:	3 May 2019
Parties:	Rose Gala’au v Setty Seda, Seda Folofau, Fred Faumae, Hellen Maefasia
Date of hearing:	1 March 2019
Court file number(s):	CC 163 of 2014
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	Refuse to grant order to set aside Default Judgment dated 2nd September 2014 Costs incidental to this hearing be paid by the Defendants to the Claimant
Representation:	Mr. D Kwalai for Claimant Ms. L. Ramo for all the Defendants
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act
Cases cited:	Kayuken Pacific Limited v Harpar, [1987]

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 163 of 2019

ROSE GALA’AU
Claimant

V

SETTY SEDA
First Defendant
(As representative of all her family members and relatives)

SEDA FOLOFAU
Second Defendant
(As representative of all his family and members and relatives)

FRED FAUMAE
Third Defendant
(As representative of all his family and members and relatives)

HELLEN MAEFASIA
Fourth Defendant
(As representative of all her family members and relatives)

Date of Hearing: 1 March 2019
Date of Ruling: 3 May 2019

Mr. D Kwalai for Claimant
Ms. L Ramo for all the Defendant

RULING ON APPLICATION TO SET ASIDE DEFAULT JUDGMENT AND ENFORCEMENT ORDERS

FAUKONA J: A default judgment was granted by this court on 14^th September 2014. The judgment was given having satisfied that there was evidence of proof of service and there being no defence filed within 28 days after service, as required by R5.37(c).

2. Rule 9.52 provides privilege for a defendant against whom default judgment has been entered may apply to the court to set aside the judgment.
3. R 9.53 sets out certain requirements which the applicant must fulfil before the court can consider, including giving details of the defence to the claim.
4. R 9.54 vests upon the court discretionary power whether to set aside the default judgment or not. However, the court must be satisfied before setting aside, that the defendant has shown reasonable cause for the delay in defending the claim, secondly that the defendant has a meritorious defence and thirdly that there be no substantial prejudice to another party that could not be rectified by a costs order.
5. One of the requirements is that if the application was filed more than 3 months from the date the default judgment was entered, the applicant must explain the delay.
6. Precisely the rules emphasize two delays. One is a delay for not filing defence within 28 days as advocated by R 5.37(c), and the other is delay for not filing the application to set aside within three months, see R 8.53(b).

Delay for not filing defence within 28 days after service.

7. The Counsel for the Defendants submits that the Defendants having been served with the claim and the sworn statement instructed Mr Samuel Balea to represent them.
8. The claim in this case was filed on 3^rd June 2014 and was served with an accompanied sworn statement upon Defendants (1), (3) and (4) on 3^rd June 2014. On 13^th June 2014, the second Defendant was served. This was affirmed by the sworn statement of the Claimant filed on 16^th July 2014. After then, no response or defence was filed until Default Judgment was granted on 2^nd September 2014.
9. By reading the Sworn Statement of the second Defendant filed on 28^th May 2018, there was no indication of when all the Defendant actually instructed Mr Balea. Which date the first instalment of $1,000-00 was paid and which date it was fully completed. Quite often private law practitioners have to wait until the initial fees charged were paid before commenced work on the case. If the instalment payments were slow then it is expected that response must be slow as well. Slow payments of cash or bills often negatively impacted the Counsels. By that failure, they may conclude or assess that the particular client is likely to default any future bills of costs. In the end, the Counsel may, therefore, gave up.
10. In any event, if a client had defaulted in the beginning, it is prudent to advise him as soon as possible and return his money, with an advice to instruct another Counsel.
11. In reality, the delay for not filing a defence is not explained by facts satisfactorily. All what paragraphs (9) and (10) of the second Defendants sworn statement filed on 28^th May 2018, was putting the entire blame on Mr Balea, their Counsel.
12. There is also fact that after the service of the application for default judgment on 4^th August 2014, upon the Defendants, it seemed they had done nothing as well. There is no evidence that they attempted to find and locate Mr Balea. If they could not locate him in Honiara then enquired as to the whereabouts of Mr Balea. To sit on their rights for 3 years and 9 months before filing an application to set aside the default judgment is an utter and destructive delay which cannot be accepted.
13. The Defendants cannot place a full bulk of blame on Mr Balea alone. They must accept responsibility as well. A client consulting a Counsel and gave instruction must enquire of the Counsel’s office location, phone number including mobile etc.; insist that a receipt must be issued for the money paid. The Defendants had failed to do any of those things. I am prepared not to accept any ignorance. Every citizen is expected to do what is expected of them and what seemed right. Blaming others is a tool commonly used by someone without looking back at themselves.

Delay in filing the application to set aside within 3 months.

14. The Defendants seem to utilise the same above reasons for delay for not filing an application to set aside the default judgment within 3 months. The Default Judgment was granted by way of perfection on 2^nd September 2014. The application to set aside the default judgment was filed on 28^th May 2018, it was 3 years and 8 months delay.
15. The approach resumed to in dealing with delay in respect of filing a defence is equally applied under this topic. The delay is utterly and extraordinary in nature. It is unacceptable delay which cannot render court to continue with the case further, it must come to an end.
16. The case is now almost five years old and that should stale by now. It is time that long outstanding cases be rid of.

The merit of the defence.

17. One of the requirements under R9.53 is to give details of the draft defence. There is a draft defence disclose of which I have fully perused. Besides that, I have also read the case of Kayuken Pacific Ltd v Harpar^[1]. The case actually advocates two things. One that any merit of the defence must be shown by a sworn statement. And secondly, the issue the court ought to consider is whether a triable issue is disclosed and not whether the defence would be successful.
18. Following that directives, a sworn statement was deposed by Mr S. Folofau disclosing the draft defence focussed on certain matters which do not disclose a triable issue.
19. What actually shown by those documents is that the Defendants had a beneficial interest in the land as being the biological children of the previous registered owner. And that there was no will hence cannot speak for the deceased upon death. Therefore the transfer was a mistake and was unlawful.
20. The first and foremost is the fact that the Claimant was eventually registered as owner of FTE PN: 191-052-257, at Mamulele settlement, East Honiara. That fact is undeniable.
21. Another issue which the Defendants rely on as a significant traditional prevalent practice is that the Claimant was an adopted child of their mother, originally from Duff islands. However, there is no denial that the Claimant was adopted by the original registered owner of the land after she had separated from her husband long ago. It would seem, as it may, the land was acquired by the original registered owner after that separation. There is no fact of any reunion thereafter.
22. Therefore an important analysis is this; though a legal title holder may have children, and one is an adopted one, if the owner wishes to transfer any property to her adopted child, whilst still alive can do so. There is no need for a will in respect to that property.
23. In this case, the mother of all the parties interested to transfer the title to her adopted daughter (the Claimant) and had started to comply with the process under the Land and Titles Act since 2012. On 7^th March 2012, the Commissioner consented to the transfer of the property to the Claimant. The required RT Form 4 (Transfer Form) was completed by the Transferor (deceased) and the Transferee (Claimant) and witnessed by a Commissioner of Oaths on 30^th July 2012.
24. By accomplishing those there was nothing more outstanding in law to comply with. All that was left was for the Registrar of Titles to register the names of the Claimant as the owner. That eventually was done on 24^th October 2012.
25. It may be argued that the transfer was registered after the Transferor died on 16^th October 2012. The timely death of the Transferor did not change the circumstance. Her intention was made clear by her actions complying with requirements of law for transferring the title to her daughter (Claimant). That was done when she was still alive. Perhaps whilst awaiting for the registration to be done, the Transferor died. The registration of the claimant as the owner of the property was done 12 days after the transferor died.
26. In my humble perception, there was nothing irregularly done, or that a will was necessarily required to transfer the title. What the owner practically did whilst still alive was to transfer the title to her daughter, is as good as a will. Therefore a will is not required and probably the grant of Letters of Administration to one of the Defendants is also a futile exercise as well. Indeed there is no merit in the defence in its entirety.
27. Also noted from documentations that the Defendants are challenging the transfer process in another civil suit which is not part of this proceeding. In any event there is no prospect of substantial prejudice to the Defendants following this decision I now grant, that which cannot be rectified by costs order.

I therefore make the following orders:

1. Refuse to grant order to set aside Default Judgment dated 2^nd September 2014.
2. Costs incidental to this hearing be paid by the Defendants to the Claimant.

The Court.
JUSTICE R FAUKONA
PUISNE JUDGE.

---

^[1] [1987]SBHC 10; [1987] SILR 54 (25 February 1987).