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George v Nukufetau [2022] TVHC 9; Civil Case 7 of 2019 (9 March 2022)

IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE NO.7/19

BETWEEN

PENEUETA GEORGE
PLAINTIFF

AND

KAUPULE NUKUFETAU
FIRST DEFENDANT

FALEKAUPULE OF NUKUFETAU
SECOND DEFENDANT

Before Hon Judge Sir John Muria

Hearing 15^th February 2022

Ms F. T. Nelu for Plaintiff
Ms V. M. Liai for Defendant

J U D G E M E N T

Muria J In this case, the plaintiff, by his motion for judgment, seeks judgment in default to be entered against the defendant for default of appearances and default of defence pursuant to Order 29 Rule 8 of the High Court (Civil Procedure Rules 1964).

Brief background

2. The plaintiff issued a Writ of Summons and Statement of Claim against the Defendant on 16^th September 2019. Although the actual date of service of the Writ on the defendant is not clear, the affidavit of service filed by Alaloto Seanoa stated that the Writ of Summons was served on the defendant in March 2020. The service was effected on the Secretary to the Kaupule of Nukufetau personally by Alaloto Seanoa.
   
3. The plaintiff’s claim is for non-payment of his employment entitlements following his termination as Secretary to the Nukufetau Kaupule. In his statement of claim, the plaintiff also seeks constitutional redress. I will say something on the constitutional redress later.
   

Service of Writ of Summons

4. For all intentions and purposes, the defendant in this case is the Kaupule of Nukufetau. The Falekaupule should not be named as party.
   
5. There is no dispute to service of the Writ of Summons in this case. It was personally served on the Secretary to the Kaupule of Nukufetau by Alaloto Seanoa.
   
6. Ms Liai of Counsel for the defendants simply contended that service of the Writ of Summon was done on the former Secretary to the Kaupule who did not notify his successor in his handing-over notes. The Writ and Statement of Claim were later located among the office papers. That was when the Acting Secretary to the Kaupule began to pursue the matter on behalf of the defendant.
   
7. The contention by Counsel do not detract from the fact that the defendants were properly served with the Writ of Summons and Statement of Claim.
   

Default

8. Despite service of the Writ of Summons on the defendant in March 2020, the defendant did not enter appearance or defence. Consequently, the plaintiff filed his application for judgment in default of appearance and default of defence on 7^th January 2021. That was almost one year later.
   
9. The plaintiff’s application for default judgment was not listed before the Court until 17^th December 2021, at which time the Court made directions in the matter. The application was adjourned to 31^st January 2022 due to the Court Vacation. In the meantime, an entry of appearance was made for the First defendant in January 2022 (the actual date is not stated in Memorandum of Appearance).
   
10. The plaintiff’s application was listed for hearing on 15^th February 2022 and the Court heard the application on that day. As of 15^th February 2022 the defendant has not filed any defence to the plaintiffs claim.
    

The Court’s power to enter judgment in default

11. As this Court held in Growing Tall Ltd –v- Biofilta Pty Ltd (22/2/2022) Civ.Case.6/20, the Court has power to enter judgment in default of defence, if at the time of entry of judgment, the defendant has failed to deliver a defence. Even if the defence is filed late, but before entry of judgment, the Court would be without jurisdiction to order entry of judgment in default of defence.
    
12. In the present case, the crucial time for the Court to determine, if it had the power to enter judgment in default of defence was 15^th February 2022. On that date, and as there was no delivery of defence, the Court’s power to enter judgment for the plaintiff was intact, entitling the Court to hear and determine the issue of entry of judgment against the defendant.
    
13. Has the need for reasons for judgment become unnecessary, the Order of Default judgment could have been entered and signed on 15^th February 2022 at which time, no defence had been delivered by the defendant. The judgment now delivered simply contains the reasons for the order on judgment in default of defence, which could have been entered and signed on 15^th February 2022.
    
14. The plaintiff is entitled to judgment in default of defence in this case.
    

Constitutional redress

15. I stated earlier that I will say something on the claim for constitutional redress, which the plaintiff is also seeking. Although raised in his Statement of Claim, the pleadings do not particularise the constitutional claim. The focus of the plaintiff’s case is mainly on his termination of employment as Secretary to the Kaupule. Very clearly, the constitutional redress has not formed part of the plaintiff’s case and as such, cannot be considered here. See Lamese –v- Kaupule of Nanumaga [2008] TVHC 7; Civil Case 03 of 2006 (27 August 2008)
    
16. The redress power of the Court is, of course, not limited to remedies for breach of employment contract only. It extends to making orders as may deem “just and equitable” which may include constitutional remedies. However, having said that, I must add that it would not be proper to include constitutional remedies in the judgment in default. This is because of the need to properly determine those constitutional rights, which the plaintiff is relying on.
    

Order

17. As already indicated above, in this case, that at the time the Court came to hear and determine the application for judgment in default on 15^th February 2022, the defendant had filed no defence. There is therefore a “default in delivery of defence” under Order 29, Rule 8 entitling the Court to grant judgment in default to the plaintiff.
    
18. Judgment in default of defence is granted to the plaintiff in the sum of $41,924.16 together with costs.
    

Ordered accordingly.

Dated on the 9^th day of March 2022

Sir John Muria
Judge