Attorney General v Dili [2020] SBHC 88; HCSI-CC 440 of 2019 (30 September 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Attorney General v Dili
Citation:
Date of decision:	30 September 2020
Parties:	Attorney General v Steven Dili, SD Pest Control(Current deregistered)
Date of hearing:	11 September 2020
Court file number(s):	440 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. Order Default Judgment is entered against both Defendants. 2. That the first Defendant is hereby ordered to transfer the title of the Fixed Term Estate in the property in parcel no. 191-078-14 to the Commissioner of Lands within two weeks. 3. That order is hereby made for the first Defendant to reimburse the Claimant the sum of SBD$1,149,783.15 forthwith. 4. That the Defendants pay costs of this application to the Claimant.
Representation:	Mr. S. Banuve for the Claimant Mr. L. Kwaiga for the 1st and 2nd Defendants
Catchwords:
Words and phrases:
Legislation cited:	Business Name Act 2014, Civil Procedure Rule 2007, Rule 9.17 (a) (b), Rule 9.15, Rule 5.37
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No.44 of 2019

BETWEEN

ATTORNEY GENERAL
Claimant

AND:

STEVEN DILI
First Defendant

SD PEST CONTROL (currently deregistered)
Second Defendant

Date of Hearing: 11 September 2020
Date of Ruling: 30 September 2020

Mr. S. Banuve for the Claimant
Mr. L. Kwaiga for the First and Second Defendant

RULING ON APPLICATION FOR DEFAULT JUDGMENT

Faukona PJ: This is an application filed by the Claimant on 18^th October 2019 for default judgment against both Defendants.

2. The second Defendant is a business registered under the Business Names Act 2014, and currently is deregistered and is owned by the first Defendant.
3. This application is suppose and expectedly to proceed by way Rules 9.17(a) and (b), which documents may not necessary be served on the Defendants pursuant to R9.15.
4. However, the documents were served and the application was heard inter-parte.
5. In a simple application for Default judgment of which the issue is whether the claim and a sworn statement had been served up the Defendant effectively, but the Defendants failed to response and file defense within the time required by Rule 5.37.
6. In this instance the first Defendant agreed he was served with the claim and sworn statement on 19^th September 2019. His only reason for not filing a response and defence is that he could not engage a Solicitor at that time. The only Counsel yielded is his current Counsel who will assist him despite his predicaments. That was after the first consultations in November 2019 and then in early month of December 2019. By then he was late by estimated two weeks.
7. From then until 17^th January 2020 a draft defence was filed as document exhibited to the sworn statement deposed by the first Defendant and filed on the same date. Realistically the defence was filed about four (4) months late. And the reason for being late cannot be accepted.
8. One fundamental reason which can be narrated is that the first Defendant had received a total sum of one million, four hundred and ninety eight thousands and one hundred and fifty dollars ($1,498,150.00) in the months between 28^th January 2016 and 2^nd June 2016, from S.I Government in respect to the sale of property being the subject of this case.
9. On 28^th February 2017, the first Defendant received from the SI Government another one million, six hundred thousand six hundred and sixty five dollars and fifteen cents (1,600, 665.15), a total of $3,098,810.15 all together by then.
10. The delay cannot be attributed because of the shortage of practicing lawyers in this country. With such money the Defendants could have engaged prominent lawyers to represent him. I noted not all the lawyers engaged in the election cases. However the first Defendant had so much leisure enjoying huge sum of money rather than taking drastic actions to find a Solicitor to represent them.
11. Because of the inter-parte hearing, arguments emerged from Counsels either sustain the claim, and defence and counter-claim.
12. To be able to determine relief (3) in the application, it is pertinent to point out at this stage the true facts, that parties had agreed to the terms of the contract before completion of work and payment transactions were made.
13. There is no challenge that the value of the property, as agreed upon was fixed at SBD$1,403,000.00 which was paid by two installments of $700,000.00 on 28^th January 2016 and 2^nd June 2016 respectively. There is no argument that $3,000.00 outstanding was yet to be paid and there was no evidence of further demand it would be paid. As such a contract was concluded for the purchase of the property and the building; hence the contract came to an end.
14. On 9^th May 2016, parties agreed by a written work contract that the first Defendant to build a retaining wall around the perimeter valued at $450,883.50. The written agreement was endorsed by the parties as required.
15. The argument expose by the Defendant is that though he is in the process of transferring the property, he cannot transfer because the Claimant had delayed payment of SBD$1,600,665.15 which resulted in business loss and deteriorating of family well-being and emotional distress.
16. The Defendant attested that $450,883.50 was a distinct amount separate from the approved and certified Bill of Quantities certified by Ministry of Infrastructure and Development by letter dated 28^th September 2016, signed by Chief quantity Surveyor Mr. Tom Ro’uhou.
17. The Counsel for the Claimant was not aware why the Ministry of Infrastructure and Development should interfere in the affairs of another Ministry which a contract of work had been endorsed with an appropriate value to be paid.
18. It is rather anomaly to think why after the contract of work had been signed by the parties some 4 months and 19 days ago, and then Bill of Quantity which approved $1,600,665.15 was certified by the Ministry of Infrastructure and Development.
19. I noted there was a Chief Infrastructure officer, namely Mr Paul Buin Koti within the Ministry of National Unity Reconciliation and Peace. How on earth would another Ministry involve in the affairs of another Ministry where the Officer assigned to deal with such is available and on post. This is a ridiculous dealing, and something must have gone wrong perhaps influence from outside, where possible an internal investigation is necessary.
20. I must accept a contract for work had been agreed upon and signed. The figure $1,600,665.15 is a foreign figure which has no basis to intervene to contaminate a signed written agreement to construct the retaining fence by the first Defendant.
21. In terms of business loss and family despair, it is rather appalling to think because the work done is a separate activity from the work of pest control; a company name registered by the first Defendant. In fact registration of a business name is different from incorporating a business company. An incorporated company can sue and be sued. In this case there was no loss because the business name is not involved in the business it registered to under-take or carry on. The issue in this case is about selling of property and construction of perimeter fence wall a different matter altogether from pest control. Therefore a claim for SBD$999,334.85 for business loss and family distress is frivolous and vexatious.

Orders:

1. Order Default Judgment is entered against both Defendants.
2. That the first Defendant is hereby ordered to transfer the title of the Fixed Term Estate in the property in parcel no. 191-078-14 to the Commissioner of Lands within two weeks.
3. That order is hereby made for the first Defendant to reimburse the Claimant the sum of SBD$1,149,783.15 forthwith.
4. That the Defendants pay costs of this application to the Claimant.

The Court.