Sarujopa v Papo [2017] SBMC 11; Civil Case 31 of 2016 (15 March 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Civil Case No. 31 of 2016

BETWEEN: HUMPHREY HENRY

SARUJOPA CLAIMANT

AND: PATSON PAPO 1^ST DEFENDANT
SAMUEL PHILIP 2^ND DEFENDANT
JOHN KABOLO 3^RD DEFENDANT

Date of Hearing: March 6, 2017
Date of Decision: March 15, 2017

Mr. Kwana for the claimant
Mr. Kaboke for the defendants

RULING ON APPLICATION TO SET ASIDE

SUMMARY JUDGMENT

The application

1. This is an application by the defendants to set aside the summary judgment entered against them on 12^th August 2016. The main ground advanced by the defendants in the application is the failure of the court to inform them of the hearing when the summary judgment was granted and therefore, it should be set aside pursuant to Rule 17.55 (a) of the Solomon Islands Courts (Civil Procedure Rules) 2007.
   

Background

2. On 12^th August 2016, summary judgment was entered against the defendants under section 22 (c) of the Magistrates Court Act.^[1] The main reason for granting the summary judgment was due to the non-appearance of the defendants for thirteen (13) consecutive hearings starting from 23^rd of February 2016 to 22^nd of July 2016. A period of almost 5 months this case remained stagnant, exacerbated by failure of the defendants to make simple enquiries or take any active step to call the Central Magistrate’s Court about their case. This occurred despite they had filed a conditional response with two sworn statements on 23^rd March 2016.
   
3. At least two notice of hearings were sent by the Central Magistrate’s Court to parties to this case. One on 3^rd May 2016 for the hearing scheduled to 20^th of May 2016 and the other on 1^st August 2016 for the hearing scheduled to 12^th of August 2016. For the latter notice, a scanned copy of it was sent to Michael Pitakaka Law Chamber official email address as indicated by a notation on a hard copy of that notice of hearing. Despite the sending of the notice, still no appearance of the defendants when the matter was again mentioned on 12^th of August 2016 being the 13^th occasion.
   
4. Realising the inaction of the defendants and the delay derailed by their failure to appear for almost 5 months, I then decided to consider the importance of Rule 1.3 which sets out the overriding objective for the need to deal with the cases justly and with minimum delay and expenses. I also took into account Rule 1.8 which requires the parties and their representatives to help the court to achieve the overriding objective. That is; they must avoid undue delay and expenses when dealing with cases in court. These considerations factored into the eventual granting of the summary judgment.
   
5. I expect if the defendants are serious about their case then they should follow up their case within weeks or a month after filing of their documents. It is expected that a fresh case like the present one will not be adjourned sine dire at its early stage but to a certain date. Therefore, if the defendants or their lawyer have made any enquiry about this case during the 5 months period then, they should be advised of the next hearing date and perhaps, their lawyer or the defendants in person should have appeared on those occasions. The duty to enquire with the court about this case remains within the means of the defendants. Instead, it appears that the defendants chose to remain on a ‘do-nothing’ approach and expect the court to contact them from their remote locations in Choiseul Province which for obvious reasons, is expensive for the court to do.
   
6. Despite the judgment was entered pursuant to section 22 (c) of the Magistrates Court Act, the defendants somehow contested that the judgment was entered under Rule 9.64. A plain reading of the judgment orders will clearly show that it was not entered under the Solomon Islands (Civil Procedure Rules) 2007 but under the Magistrates Court Act. These are two different legislations altogether. One governing the procedures regarding instituting and disposal of civil matters while the other is for administration of the duties and powers of magistrates in the exercise of their judicial functions.
   
7. Although it is conventional in civil practice that a default judgment should be the expected order in this case, section 22 (c) of the Magistrates Court provides that the court in its own motion may enter summary judgment against a party who fails without any reasonable excuse to attend to any hearing. That is the statutory provision I invoked and not Rule 9.64.

Issue for determination

8. Since summary judgment has been entered, the overarching question for me to decide on is; whether the court can set aside that order or it should be only dislodged by way of appeal.
   

Whether or not the court can set aside summary judgment

9. The answer to this issue lies in the case of Karihanua v Attorney General.^[2] In that case, an application was made to set aside a summary judgment entered after a contested hearing against the applicant for damage of the respondent’s vehicle. The applicant urged the court to set aside the summary judgment and listed the matter for trial. The respondent argued that the application was erroneous and the only way to dislodge it is by way of appeal. Apaniai J, (as he was then) accepted the views submitted by the respondent and stated:
   

“In my view, Mr. Haurii's argument accords with the law. Although an application for summary judgment is an interlocutory application, any judgment obtained after hearing argument on such application is a final judgment and the only way to dislodge it is to appeal against the judgment.”^[3]

10. The court then referred to a judgment of Lord Alverstone CJ in Bozson v Altrinchan Urban District Council^[4] to support his views in relation to the test to finality of judgment and stated as follows:

"It seems to me that the real test for determining this question to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not it is then in my opinion, an, interlocutory order."^[6]

11. The decision in Karihanua’s case is simple and straightforward. That is, unlike default judgment, summary judgment can only be dislodged by way of appeal since it is a final order that put to rest the rights of the disputing parties. Although the granting of the summary judgment in Karihanua’s case was after a contested hearing and might be considered differently to the present case, the purpose of granting summary judgment in any litigation is directed towards achieving the same result. That is, it settles the rights of both parties since it is a final judgment. Final judgment means there should not be any further judgment beyond it in the same court otherwise, the court would be seen as an appeal court reviewing its own judgment.
    
12. I have looked at the history of Karihanua’s case and noted that it was not appealed nor overturned by the Court of Appeal. Hence, it is binding authority on this court. To decide otherwise will certainly contradict or offend that binding precedent. Therefore, I am bound to follow or uphold the principles enunciated in that case.
    
13. I am mindful of the requirements under Rule 17.55 that provides for setting aside of a court order. Unfortunately, I am not assisted by counsels whether reference to “order” under this rule also includes an order that is finality in nature. In light of this uncertainty, it is my view, that the only way to dislodge the summary judgment in the present case is by way of appeal which unfortunately, this court does not have the jurisdiction to hear.
    

ORDERS OF THE COURT

14. It follows from the reasons narrated herein that the application to set aside the summary judgment is accordingly dismissed.
    
15. Cost of this application is borne by the defendants payable to the claimant on standard basis to be taxed if not agreed.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] “22.—(1) Where—

(a)............; or

(b).............; or

(c) any party being required by an order made by a Magistrate's Court under Rules of Court to produce to that Court any document or to attend at any sitting of that Court, fails without reasonable excuse to obey the same,
the Court may pronounce such judgment against him and in such terms as it thinks fit or make such order and impose such terms as to costs, payment into court, giving of security or otherwise as it thinks fit.”( Underlined mine)

^[2] [2014] SBHC 49; HCSI-CC 78 of 2012
^[3] At paragraph 8
^[4]5 [1903] 1 K.B. 547
^[6] At page 548