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Logadi v Posaoka [2016] SBHC 35; HCSI-CC 253 of 2013 (8 March 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 253 of 2013

BETWEEN:

MELCHOIR LOGADI
Claimant

AND:

SAMUEL POSAOKA
Defendant

Date of Hearing: 8th March 2016
Date of Judgment: 8th March 2016

Mr. M. Ipo for the Claimant
Mr. A. Rose for the Defendant

RULING

Maina J:

Introduction

This is an application to set aside the default judgment entered against the Defendant and stay the enforcement order. The application relates to a Category C claim and the Defendant alleges irregularity in the entering of the default judgment and in alternative a defence on merit.

Brief Background

A claim was filed on 19th July 2013 and served on Defendant on August, 21st 2013. In the claim, the Claimant seeks orders of eviction, vacant possession and mesne profits in the sum of $27,800.00. The Defendant did not file and served a response or defence to the claim within the required time provided by the relevant rule.

The Claimant on 25th September 2013 filed an application for a default judgment and the Court granted orders of default judgment to him on 14th November 2013. The Defendant on 24th July 2014 filed an application to set aside the default judgment on the grounds of irregularity entered and that the claim was personally served to him or in alternative the Defendant has a defence on merits and leave grant to him to file a defence.

Issues

The issue is whether the claim was irregularly served on the Defendant and or in alternative whether the Defendant has a defence on merit in the claim. In that context if I find that there was irregularity in the service of the claim on the Defendant and rule according, the alternative or defence on merit becomes not an issue in this application.

The case

The Claimant in support of his application for Default Judgment filed a sworn statement on 25th September 2013. He stated that "On or about August 21st, 2013 at 2.15pm, I personally served a copy of my sealed claim attached with a response on the Defendant at his office, Point Cruz, Honiara and he accepted service".

With the issue of service, the Defendant alleges it is irregular as the claim was not personally served on as required by Rules.

Defendant in his sworn statement filed on 24th July 2014 acknowledged receiving the claim but through a third party in his office. He said that it was not personally served to him and submits that there is an irregularity in the service of the claim. He said that he is an ordinary person and no or little knowledge on the rules of procedures and the effects of Court orders. He placed his trust on the advice he received from the Department of Lands and that the Claimant has no right to the land as his licence to the land ceased and that the Defendant has the licence over the land.

And it was when Defendant was served with the eviction order that he sought legal advice.

The Law

Rules 9.52 – 9.56 of the Civil Procedure Rules 2007 deals with the setting aside of Default Judgment and relates from the right to apply, application and grounds or basis for setting aside the default judgments.

Rule 6.4 of the Civil Procedure Rules requires that a copy of the claim must be served on the Defendant personally, unless substituted service or the Court orders that the claim may be served in another way.

This claim is personal matter between the Claimant and Defendant. The evidence on the service of the claim to the Defendant is just as contained in the Claimant sworn statement filed on 25th September 2013 that it was served "on or about August 21st, 2013 at 2.15pm, on the Defendant at his office, Point Cruz, Honiara". Such does not reflect well on the service of this claim.

With the sworn statement filed on 25th September 2013 there is no other evidence by the Claimant to support that he served personally to the Defendant.

Defendant denied receiving the claim personally but through another person or workmate in the office. And it seems to be so in the evidence of the Claimant that the claim was served to the Defendant's office, Point Cruz, Honiara and not personally to him.

Receiving a claim through a person is not a service under Rule 6.4 of the Civil Procedure Rules unless served under the provisions. With this case it seems that the claim was served on another person or workmate in the office. With that circumstance of the service of the claim to the Defendant, I would agree that the claim was not a personally served on the Defendant.

ORDER

1. The order to set aside the default judgment entered against the Defendant and stay the enforcement order is granted.
   
2. Defendant to file the Defence within 14 days.
   
3. The case is adjourned to 20th April 2016 for mention and further directions.
   
4. Cost in the cause.
   

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge