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Zekolo Timber Mill v Church of Melanesia Trust Board Incorporated [1993] SBHC 10; HC-CC 194 of 1992 (19 February 1993)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 194 of 1992

ZEKOLO TIMBER MILL

-v-

CHURCH OF MELANESIA TRUST BOARD INCORPORATED,
JOHN MARK LOKUMANA and JACOB TARO

High Court of Solomon Islands
(Muria ACJ)

Hearing: 18 February 1993
Judgment: 19 February 1993

A. Radclyffe for the Plaintiff
F. Mwanesalua, J. Tealikilava and Rev. Saepoa for the Defendants

MURIA ACJ: This is an application to set aside a judgment in default of defence entered against the First Defendant on 7 January 1993. Two reasons were advanced by Mr Mwanesalua who appeared for the First Defendant. These are -

1. That judgment was irregular; and

2. that there is a defence on the merits disclosed by the affidavit of Mr John Tealikilava.
   

There is discretion in the court to set aside any default judgment pursuant to Order 29 rule 12 of the High Court (Civil Procedure) Rules, 1964.

Mr Mwanesalua argued that the irregularity here stemmed from non-compliance of rules 2 and 3 of Order 29. I do not agree that rules 2 and 3, nor rule 13 are applicable here. I agree with Mr Radclyffe that the present case is a simple case of breach of contract with a liquidated claim for goods sold and delivered. No leave is therefore necessary before entering judgment in default. Non-compliance with rule 13 cannot be the basis of the claim of irregularity in this case.

The irregularity, I feel occurred here, is the non-compliance with Order 3 rule 5 where the indorsement, in a case such as this, requires the statement of claim to be adequate, specifying the nature of the claim. The indorsement of the Writ in this case simply reads:-

"The Plaintiff's claim is for breach of contract in failing to pay the Plaintiff's invoice No. 48 dated 6th November 1991 for the supply of Timber at a price of $24,016.00".

I am afraid such an indorsement is inadequate to enable the Defendant to identify the transaction. It does not specify to whom was the invoice issued nor did it particularise the details of the timber supplied, and nor did it specify when the timber were supplied. If, for example, the Defendant agreed to some of the timber not being paid for but plead payment to others, how will it know? That non-compliance with Order 3 rule 5 clearly renders the proceedings irregular and the proceedings may be set aside under Order 69 rule 1.

It is the law that a defendant may apply to have the judgment irregularly obtained set aside ex debito justitiae. However where despite the proceedings being irregular but the judgment has been properly obtained, the court may nevertheless exercise its discretion and refuse to set aside the judgment. See Samson Poloso (On behalf of HM Salo Store) -v- Honiara Consumers Co-operative Society Ltd (1988/1989) SILR 16 (Although refusal to set aside the judgment in that case was on the ground of unreasonable delay).

Mr Mwanesalua further submitted that the matters deposed in Mr Tealikilava's affidavit clearly shows that there is a viable defence disclosed and as such the court should exercise its discretion and set aside the judgment. Mr Radclyffe conceded that the affidavit did disclose a viable defence. But he suggested that the delay here has been such that the court should nevertheless refuse to set aside the judgment.

There is clearly a defence being suggested in the affidavit of Mr Tealikilava. But I do not think it is necessary that I should look into that defence at this stage. It is suffice to say that having read the affidavit, I consider there is a viable defence raised. In considering a similar application in Kayuken Pacific Limited -v- Harper (1987) SILR 54, Ward CJ state at page 58:-

"When making application to set aside, there must be an affidavit of merit showing that the defendant has a prima facie defence to the action. Such was the case here. It is not necessary for the court to consider at that stage whether the defence would be successful but simply whether a triable issue is disclosed. If there is not the exercise is pointless."

Under Order 29 rule 12 the discretionary power of the court to set aside judgment is unfettered in the event the court finds that there is a prima facie defence disclosed.

Mr Radclyffe submitted that before the court can exercise its discretion, it must take into account such matters as: the delay in bringing the application and the prejudice that the Plaintiff may suffer if a new trial is ordered.

After the Writ was served on the First Defendant, an Appearance was on 6 October 1992. No defence had been filed and on 7 January 1993 the judgment in default of defence was entered. Although the default judgment was signed on 7 January 1993 it was not served on the Defendant until some time later. This application was filed on 4 February 1993. On those facts, I cannot say that the Defendant has been guilty of unreasonable delay.

Further in the circumstances of this case I do not think that if I exercise the court's discretion in favour of the Defendant the Plaintiff will be prejudiced by it.

For the above reasons I exercise the court's discretion and set aside the default judgment of 7 January 1993. I give the Defendant seven (7) days to file a defence against the Plaintiff's claim.

I order the Plaintiff's costs in this application to be paid by the First Defendant.

Order granted accordingly.

(G.J.B. Muria)
ACTING CHIEF JUSTICE