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Carey v Sumsum [2013] SBHC 91; HCSI-CC 290 of 2011 (12 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 290 of 2011

BETWEEN:

STEPHEN ALLAN CAREY
Claimant

AND:

RON SUMSUM
Defendant

Date of Ruling : 12 July 2013

Mr. Pitakaka for Claimant
Ms Ramo for Defendant

RULING

1. This is an application by the Claimant filed on 8 June 2012 for the following orders: (1) Default judgment against the Defendant in respect of the orders sought in the Claimant's claim dated July 22, 2011; Any other orders as the court deems fit; and (3) cost.
   
2. The Claim was filed by the Claimant on 1 August 2011. He seeks: (a) Damages for defamation including: (i) Compensatory; (ii) Aggravated; Punitive; and Exemplary damages; to be assessed. (b) Interest both before and after judgment. (c) Costs (d) interest on costs pursuant to rules 17.74 and 17.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules"). Further or other orders the court thinks fit.
   
3. Counsel for the Defendant submits that the claim is an abuse of the process of the court, on the grounds that it discloses no reasonable cause of action; there is insufficient pleading in the case; the Defendant was not personally served on the Defendant; the application should be refused and the Defendant is allowed 14 days to file defence.
   
4. After the claim was filed on 1 August 2011, it was personally served on the wrong person, Ms Mary Morris, rather than the Defendant, by Mr. Kalepota on 22 September 2011. The Defendant confirmed in his sworn statement that he was not personally served with the claim. The right way of making personal service with the claim is provided for under rules 6.4 and 6.29 of the Rules. Rule 6.4 relevantly states that: "A sealed copy of the claim and a response form must be personally served on the Defendant. There is no evidence of leave to effect substituted service; or court orders that the claim may be served in another way. And on the definition of personal service rule 6.29 relevantly states: "A document is served personally on an individual: (a) by giving a copy of it to the individual; or (b) if the individual does not accept the document, by leaving it down in the person's presence and telling the person what it is".
   
5. Although there is a failure to comply with the rules, that does not make, a proceeding or a step taken a nullity, the court may inter alia, set aside the step taken in a proceeding. It is obvious that the Claimant failed to comply with the Rules in two material ways in this case. The most obvious one is that the claim is yet to be served on the Defendant and the failure to serve a response form on the Defendant. These are the two most vital documents in any civil claim.
   
6. The court is of the view it would not seem right to grant default judgment to the Claimant who has failed to comply with the Rules as mentioned herein. The Defendant is yet to be lawfully served with the claim. The court will accordingly refuse to grant the orders sought.
   

ORDER: 1. The application lodged by the Claimant is refused and dismissed.

2. The costs of this application to be in the cause.

THE COURT