Attorney General v Ming Huan Szetu [2024] SBHC 11; HCSI-CC 400 of 2023 (22 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Attorney General v Ming Huan Szetu
Citation:
Date of decision:	22 February 2024
Parties:	Attorney General v Ming Huan Szetu, Willie Quan
Date of hearing:	15 February 2024
Court file number(s):	400 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:	1. The application to remove the Second Defendant from this proceeding is granted and consequently, the Second Defendant is removed forthwith from being a party to this proceeding. 2. The application for default judgment against the First Defendant as remaining defendant to this proceeding is refused. 3. The claim filed on 16th August 2023 is declared ineffective. 4. Parties to bear own costs.
Representation:	Ms P Rofeta for the Claimant No Appearance from the First and Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 5.37, 6.5, r 5.43 Companies Act 2009, S 201 (c)
Cases cited:	Middle Island Investment PTY Ltd v Ghiro [2013] SBHC 146

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 400 of 2023

BETWEEN

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Claimant

AND:

MING HUAN SZETU
First Defendant

AND:

WILLIE QUAN
Second Defendant

Date of Hearing: 15 February 2024
Date of Ruling: 22 February 2024

Ms P Rofeta for the Claimant
No Appearance for the First and Second Defendant

RULING

Commissioner Aulanga

1. This is an application for default judgment. The Claimant believes the reliefs sought in the application should be granted as a result of the failure of the First and Second Defendants to file a response or defence to the claim after they were served with the claim, as required under rule 5.37 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
2. At the hearing, counsel for the Claimant asked for removal of the Second Defendant from the proceeding. The reason is the First Defendant is the only party residing on the property and therefore the orders sought in the reliefs are not relevant or inapplicable to the Second Defendant. I have considered the merit of that application and contextualising it to the reliefs sought in the claim, in my view, the application should be conveniently granted. In consequence, the Second Defendant is therefore removed from being a party to this proceeding. By that removal, the First Defendant is the only remaining party to this proceeding. This application only concerns the First Defendant.
3. A claim in Category A was filed on 16^th August 2023, seeking possession of two Fixed Term Estate properties with Parcel Number 191-014-147 and 191-014-197 (“property”). Upon removal of the Second Defendant, the claim also seeks an order to restrain the First Defendant, his servants, licensees, agents, invitees and others (including but not limited to those taking possession through any subsidiary or associate company) currently occupying the property under the said Defendant’s authority or purported authority from entering the property upon vacating the same. To further validate the claim, the claim further seeks that the Sherriff of the High Court to enter and deliver vacant possession of the property to the Claimant, with costs.

Brief facts

4. Briefly, the First and Second Defendants held title to the property in common. The Commissioner of Lands (Claimant) decided to reclaim that property for accommodation of the ministry of Women, Youth and Children’s Affairs under the ground of public purpose.
5. On 30^th May 2012, the Claimant issued a Notice of Resumption of the property to the Defendants for public purpose. Later, on 12^th September 2012, the Registrar General’s office cancelled their names to the title register to give effect to the resumption of the property for said the public purpose. The Claimant then retains indefeasibility title to the land.
6. On 13^th August 2013, the First and Second Defendants were issued with an eviction notice to vacate the property. Another notice to evict from the property was issued to them on 9^th November 2022. Yet they deliberately refused to comply with the notices. The First Defendant as remaining Defendant continued to refuse vacating the property, resulting in the institution and commencement of this proceeding.
7. As a result, the Claimant instituted the claim in Category A on the 16^th August 2023. The claim was believed to have been served on the First Defendant on 23^rd August 2023. Due to no response or defence by the First Defendant, on 16^th November 2023, the Claimant filed an application for default judgment, together with sworn statements of Pamela Rofeta, respectively filed on 16^th November 2023 and 29^th January 2024.

Whether service of the claim is proper

8. The Claimant made an attempt to serve the claim on L&L Lawyers. L&L Lawyers refused to accept the claim since they do not represent the First Defendant anymore. On 23^rd August 2023, the claim was purportedly served on the First Defendant at his unknown business residence as deposed in the sworn statement of Pamela Rofeta filed on 16^th November 2023. That sworn statement made reference to Patricia Taki as a person accompanying the server of the claim.
9. That sworn statement unfortunately has a number of flaws. It is an accepted evidence by the Claimant that L&L Lawyers had refused to accept the claim since they no longer represented the First Defendant. This must logically mean that the claim was not and should not be served on L&L Lawyers. However, entry 38 in annexure “PR-01” of the sworn statement of proof of service is contradictory to this evidence.
10. The evidence in particular, at paragraph 8 of Rofeta’s sworn statement referred to above, shows that the claim was served at the First Defendant’s place of business. That place of business was not named or explained. However, according to entry 38 of the Service Acknowledgment Form in annexure “PR-01”, it records the claim was served by Pamela Rofeta on L&L Lawyers on 23^rd August 2023 at 1:48pm. That cannot be so for three simple reasons. First, the evidence clearly confirms that L&L Lawyers refused acceptance of the claim. Hence, it is incorrect and misleading to record that the claim was served on L&L Lawyers as appeared on entry 38 of annexure “PR-01”. Second, L&L Lawyers is not the First Defendant’s work place or place of business. I do not have any evidence before me to show that the First Defendant is a lawyer working for L&L Lawyers so that the claim could be rightly served at that law firm. Third, I take judicial notice that L&L Lawyers is not the First Defendant in this matter and even if the firm is the legal representation of the said Defendant, which is not, this still runs foul to rule 6.5 of the Solomon Islands Courts (Civil Procedure) Rules 2007. Unless leave for substituted service is granted, rule 6. 5 requires the claim to be personally served on the defendant, herein, the First Defendant, if not at the named registered office of the First Defendant as required under section 201 (c) of the Companies Act 2009 (No. 1 of 2009).
11. For this case, given the contradictory evidence uncovered in the materials, I am at loss as to which evidence I should accept as the proof of service of the claim. Whether I should accept paragraph 8 of the evidence of the sworn statement of the proof of service or the annexure “PR-01”, is the reality of the state of uncertainty or confusion encountered by the Court. This contradictory evidence therefore leaves the evidence of the service of the claim unreliable for the Court to accept.
12. From 23^rd August 2023 to 15^th February 2024 when this application was heard, a period of almost 6 months had lapsed without any single step taken by the Claimant to correct this error determinative for granting of an application for default judgment. Nothing has been done and given this quandary, I am not satisfied that the claim was served on the First Defendant or at his place of business as seemed to be narrated in the evidence relied on for this application.

Whether the claim is effective

13. Given that I hold the claim was not served on the First Defendant, the question now is whether there is time allowed by statute for service of the claim. If not, the next question is whether there is any effective claim before this Court.
14. Rule 5.43 states:
    • “If a claim is not served within 3 months of the date endorsed by the registrar under rule 4.3:
    • (a) the claimant may apply to the Registrar to have the claim renewed within one month after the expiry of that period; and
    • (b) if the claimant does not do this, the claim ceases to be of any effect.
    • Where the Registrar agrees to renew a claim under this sub-rule the claim may be renewed for a further three months and the Registrar shall endorse the claim accordingly.”
15. By rule 5.43 above, it imposes a statutory obligation on the Claimant to serve the claim on the Defendants (Second Defendant inclusive) within 3 months from the date of the filing of the claim. In this case, the claim was filed on 16^th August 2023 and it should be served within the 3 months and that is, by 16^th November 2023. Any extension of time for renewal of the claim should be by 16^th December 2023.
16. Since the 3 months period had lapsed, it is my view that this claim is now ineffective and therefore invalid. Consequently, the Claimant is no longer entitled to any reliefs in the claim since it is now ineffective. This is the position of the Court of this jurisdiction regarding an ineffective claim as held in Middle Island Investment Pty Limited v Ghiro^[1] that involved a claim regarding an illegal logging operation was served on the defendant more than 4 months after it was filed. The Court therein held that the claim was ineffective and ceased to be of any effect in these terms: “if the claim is not served within three months from the date of filing then the claim ceases to be any effect.”^[2] Since the claim is now ineffective, it must follow that there is no valid claim before the Court to warrant further progression or continuity of the matter.
17. The cost of this application is that parties shall bear their own costs.

Orders of the Court

1. The application to remove the Second Defendant from this proceeding is granted and consequently, the Second Defendant is removed forthwith from being a party to this proceeding.
2. The application for default judgment against the First Defendant as remaining defendant to this proceeding is refused.
3. The claim filed on 16^th August 2023 is declared ineffective.
4. Parties to bear own costs.

BY THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court

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^[1] [2013] SBHC 146.
^[2] At page 1 of the ruling.