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Sevev Land Trust Board v Bartlett [2024] SBHC 93; HCSI-CC 165 of 2023 (6 September 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 165 of 2023

BETWEEN

SEVEV LAND TRUST BOARD
First Claimant

AND:

JOHN HOLOSANGO, STEVEN TARONIARA AND JUSTIN VENEVII
Second Claimants and

AND:

ALEX BARTLETT
First Defendant

AND:

COMMISSIONER OF LANDS
Second Defendant

AND:

REGISTRAR OF TITLES
Third Defendant

Date of Hearing: 23 August 2024
Date of Ruling: 6 September 2024

Mr J Seuika for the Claimant
Ms S Tesua for the First Defendant
Mr B Pitry for the Second and Third Defendant

Lawry; PJ

RULING

1. On 14 April 2024 the claim was filed and on 25 April 2024 the Claimant served a copy of that claim on the First Defendant. On 1 May 2023 the First Defendant, by his counsel, filed a Response to being served, acknowledging service of the claim and advising that he will file his defence within fourteen days. No defence was filed.
2. On 23 June 2023 the Court heard an application for a default judgment. Counsel for the Claimant and counsel for the Second and Third Defendants were present, there was no appearance by or on behalf of the First Defendant.
3. Judgment was entered by default removing the First Defendant as the proprietor of perpetual estates in PN 177-006-4, PN 177-006-3, PN 177-006-1, PN 178-001-1, PN 177-003-2, PN 177-004-3, PN 165-002-121, PN 177-004-2, PN 177-007-1 and PN 177-002-1 and restoring the name on those titles to Sevev Land Trust Board.
4. On 7 November 2023 a notice of change of advocate was filed on behalf of the First Defendant. On the same day on application to set aside the default judgment order was filed together with a sworn statement from the First Defendant. In that sworn statement the First Defendant deposed that he had instructed his former counsel in this matter. He confirmed that on or about 31 October 2023 he engaged Mr Fa’atoa to represent him and that his former counsel has been overseas for medical reasons. The First Defendant had expected his former counsel to represent him.
5. Concerning the claim he deposed that in 2013 he assisted the late Leslie Morris Asad to sign transfer instruments of certain parcels of land to the First Claimant. In 2014 he assisted Mr Asad to register the Claimant with the Registrar of Companies. He deposed that he is a member and the Secretary of the First Claimant and is unaware of a decision by the First Claimant to sue him. He further deposed that Mr Holosango was at all times aware of his position, duty and role in the First Claimant.
6. Unfortunately the First Defendant has been required to engage alternative representation as Mr Fa’atoa died earlier this year. Counsel for the Claimants has also changed following former counsel ceasing practice on being elected as a Member of Parliament.
7. As a result the application to set aside the default judgment was not heard until 23 August 2024. Ms Tesua relied on rules 17.55(a) and 17.56 of the Solomon Islands Courts (Civil Procedure) Rules 2007 [‘the Rules’] which provide:
   • 17.55 The court may set aside an order at any time if:
   • (a) the order was made in the absence of a party; or
   • (b) ...
   • (c) ...
   • (d) ...
   • (e) ...
   • (f)...
   • 17.56 If the court sets aside an order, it may also set aside any order made to enforce the order.”
8. Ms Tesua for the First Defendant submitted that as the order was made in the absence of the First Defendant the order should be set aside. She correctly set out headings that are relevant for the Court to consider being:
   • (i) whether the cause of delay is reasonable;
   • (ii) whether there is an arguable case;
   • (iii) whether prejudice will be caused by setting aside the default judgment; and
   • (iv) the nature of the claim.
9. Rule 17.55 however does not deal with the requirements when judgment has been entered by default. The relevant provision is rule 9.53. Rules 9.52 to 9.55 inclusive provide:
   • “Setting aside default judgment
   • 9.52 A defendant against whom default judgment has been entered may apply to the court to have the judgment set aside.
   • 9.53 The application:
   • (a) must set out the reasons why the defendant did not defend the claim; and
   • (b) must, if the application is made more than three months after the judgment was entered, explain the delay – and the court shall not set the judgment aside unless it is satisfied that it is in the interests of justice so to do; and
   • (c) must give details of the defendant’s defence to the claim; and
   • (d) must have with it a sworn statement in support of the application.
   • 9.54 The court may set aside the default judgment if it is satisfied that:
   • (a) the defendant has shown reasonable cause for the delay in defending the claim; and
   • (b) the defendant has a meritorious defence, either about his or her liability for the claim or about the amount of the claim; and
   • (c) there is no substantial prejudice to another party in setting aside the judgment that could not be rectified by a costs order.
   • 9.55 At the hearing of the application, the court may:
   • (a) give directions about the filing of the defence and other statements of the case; and
   • (b) make an order about the payment of the costs incurred to date; and
   • (c) consider whether an order for security for costs should be made; and
   • (d) make any other order necessary for the proper progress of the proceeding.”
10. The considerations set out by counsel then must be applied in light of those rules. So far as rule 9.53(d) is concerned, the application did have with it a sworn statement in support of the application from the First Defendant. So far as rule 9.53(a) is concerned were there reasons the First Defendant did not defend the claim? He has blamed his former counsel. Whether that is where blame lies or not cannot be assessed as there does not appear to be any evidence from former counsel nor is there evidence of a waiver of privilege. The claim was served in April 2023 but the First Defendant does not appear to have done anything after the ‘Response’ has been filed. It is inconceivable that he has not followed up the matter between April 2023 (when served with the claim) and November 2023 (when the application to set aside the default judgment).
11. To have made the allegation about the fault being with counsel and to have provided no evidence of a waiver of privilege raises a concern about rule 9.53(b) as well. The Court must not set aside the judgment unless it is satisfied it is in the interests of justice to do so. Without confirmation from former counsel the Court cannot be so satisfied.
12. Rule 9.53(c) requires the defendant in the application to give details of the First Defendant’s defence to the claim. In the application under the heading ‘Arguable Case’ he set out the following:
    • “It is our submission that there is an arguable case. In the filed Claim, the Claimants seeks an order to declare that the 1^st Defendant/Applicant status as the Perpetual Title holder of the subject matter null and void. Exhibit “JH-5” is Perpetual Estate Register showing the name of the 1^st defendant/applicant as having legal title holder of the subject matter annexed to sworn statement of John Holosango on 14^th April 2023.
    • In the case of Billy v Daokalia [1995] SBCA 5, in relation to rectification of Perpetual Estate register where fraud or mistake is pleaded under section 209 (10 and (2) of the Lands and Titles Act, the Court of Appeal says this: “There are two essential grounds ...(i) the fact of a mistake, and (ii) the fact of knowledge of that mistake by the owner.
    • The Court of Appeal further say that “...the powers of rectification are circumscribed by statute law.”
    • In our current case where fraud and mistake was pleaded, it is our submission that the owner, who is the Applicant in this hearing has to have knowledge of the mistake if there has to be rectification to the Perpetual Estate Register.
    • In the event that this Application is not granted and the Perpetual Estate Register is rectified in favour of the Claimants/Respondents, it is our submission that any such action would be an error of law.”
13. Further under the heading ‘Nature of Claim’ the First Defendant has set out the following:
    • “In consideration of the nature of the Claim where the Applicant is the legal title holder of Perpetual Estate in 12 parcel numbers, and the allegation that it was registered to the Applicant by way of fraud or mistake, we submit that the matter should proceed to trial and should not be terminated through a default judgment.”
14. That is the extent of the details of the defence of the First Defendant. Importantly no draft defence has been put before the Court to enable the Court to assess the details of his defence. Counsel for Second and Third Defendants has submitted that this failure is fatal to the application. Counsel referred this Court to the decision of Rano v Kaipua [2016] SBHC 10 where there was a greater delay than in the present case, however the draft defence filed set out the proposed defence to the claim.
15. Mr Seuika in opposing the application treated the default judgment as an interim injunction. While the submissions have similarities I am bound to examine the application in terms of rules 9.52 to 9.55 of the Rules.
16. Turning to rule 9.54 I am not satisfied that the First Defendant has shown reasonable cause for the delay. I cannot know whether he has a meritorious defence about the claim as I have not seen the details of his defence. The application has not sufficiently set out the details of that defence. It seems he may have intended to assert that he has not had knowledge of a fraud or mistake but that also seems to be in conflict with his evidence that at all times he was the Secretary of the First Claimant. The Court cannot be put in the position that it is left to guess.
17. In these circumstances the application to set aside the default judgment is refused. The First Defendant is to pay the costs of the Claimants and of the Second and Third Defendants on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge