IN THE HIGH COURT OF TUVALU 2023

CIVIL CASE NO. 1/23

BETWEEN
SULANI TRADING LTD
PLAINTIFF

AND
TUVALU GOVERNMENT's CHANCERY TASKFORCE
FIRST DEFENDANT

LANDS DEPARTMENT
SECOND DEFENDANT

Before	 Hon Judge Sir John Muria
Hearing	 24th April, 2023
Judgment	 2nd May 2023

Ms L Kofe for Plaintiff 
Mr V Liai for Defendants

JUDGEMENT

Muria J:	This is an application by the plaintiff for leave to enter Judgment in default against the defendant pursuant to Order.29 rule14 of the High Court (civil procedure) Rules 1964. The writ of summons was filed on 3rd February 2023.
2. There is no dispute that the defendants were served with the writ of summons by the plaintiff on 6th February 2023 following which the defendants entered a Memorandum of Appearance on 8th February 2023. Since then the defendants have not filed a Defence to the plaintiff's claim as required by Order 23, rule 6. The plaintiff now comes to the Court and seeks judgement in default against the defendants. Order 23 rule 6 provides:
	"Rule 6. Where a defendant has entered an appearance, he shall deliver his defence within fourteen days from the time limited for appearance or from the delivery of the statement of claim, whichever shall be later, unless such time is extended by consent in writing or by the Court, or, in actions in which the writ of summons has been specially indorsed with or accompanied by a statement of claim under Order 3, Rule 5, the plaintiff in the meantime serves a summons for judgement under Order 14.
3. However, the defendants in this case represent the Government of Tuvalu and as such the plaintiff needs leave of the Court to enter judgment in default against the defendants as required by Order 29, rule 14, which states:
	"In proceeding against the Crown no judgment for the plaintiff shall be entered in default of pleading without the leave of the Court, and any application for such leave shall be made by notice of motion or summons served not less than seven days before the return day."
4. Armed with this provision of the Rules, the plaintiff now seeks leave to enter judgment in default against the defendants who have failed to deliver their Defence within the time allowed for filing and delivery defence.
5. Before I deal with the issue of whether leave should be granted to the plaintiff to enter judgment against the defendants or not, I feel I should once against exhort legal practitioners who practice in the Courts of Tuvalu to read and know the Rules of Court. The Rules of Court are the tools of the trade for legal practitioners. They guide legal practitioners in the conduct of their clients' cases through to courts and in assisting the Courts to justly resolve disputes between parties whom they represent.
6. The plaintiff in the present case, issued a writ of summons, indorsed with a Statement of Claim, on 3rd February 2023 and served on the defendants on 6th February 2023. The writ of summons commands the defendants to enter an appearance to the writ of summons within 14 days of the service writ of summons on them. The defendants entered an appearance on 8th February 2023. The rules (Order 23) require the defendants to file and deliver defence and by Order 23, rule 6, they must do so within 14 days from the time limited for appearance. The defendant failed to deliver defence within the time allowed. As of today's date, no defence has been filed nor has there been any application to extend time to file a defence. They are now in default of delivery of defence.
7. The plaintiff's case as put by Ms Kofe is simply that the defendants were served with the writ of summons on 6th February 2023 and they had entered appearance on 8th February 2023. However, the defendants have failed to deliver a defence to the plaintiff's Statement of Claim within 14 days as required by the rules. There has been no explanation for the default nor has my application for extension of time been sought by the defendants to file defence out of time. This is simply a blatant default by the defendant by the defendants to deliver a defence to the plaintiff's claim. The plaintiff now seeks leave to enter judgment in default against the defendants.
8. For the defendants, Ms Liai stated that they thought that by filing the affidavits in the case, is enough and there was no need to file a Defence. Counsel therefore relies on the various affidavits filed on behalf of the defendants to support their argument that the plaintiff is not entitled to the claims it brought to the Court.
9. Order 29 entitles the plaintiff to come to the Court and ask for judgment in default against the defendants. However, since the defendants in this case represent the Government of Tuvalu, Order 29 rule 14 requires the plaintiff to seek leave of the Court before judgment in default can be entered against the defendants.
10. The general principle to be considered in a case such as this where the state is clearly in default of delivery of defence is that the burden is on the defendants to show that they have a good defence to the plaintiff's claim on the merits. The defendants can do that based on the materials before the Court, including affidavit evidence or a draft defence (if any) attached to the affidavit That was the position taken in Iotebwa -v-Attorney General [2020] KIHC 11 (29th May 2020) and Raratu -v- Jian Pei Li [2020] KIHC 1 (21st February 2020).
11. Ms Liai of Counsel for the defendants submitted that despite the fact that no defence had been filed there are materials in the affidavits filed on behalf of the defendants showing that the defendants have a good defence to the plaintiff's claim. Despite the firmed argument by Ms Kofe of Counsel for the plaintiff that affidavits are not a substitute for the filing of a Statement of Defence, I accept that the Court cannot ignore affidavit materials filed in a case, for the purpose of determining the issue of whether a defence on the merit has been shown to the plaintiff's claim. If the Court is satisfied that a defence on the merits has been shown, it will refuse the plaintiff's application for leave to enter Judgment in default, but will go on to direct the defendant to file a Defence within a time fixed by the Court.
12. In the present case, I have read the affidavits referred to by Counsel for the defendants. The affidavits were made by Nese Ituaso Conway, the Acting Secretary to Government; Sumeo Silu, Deputy Secretary to the Ministry of Public Works, Infrastructures, Environment, Labour, Meteorology and Disaster (MPWIELMD); Pasai Andrew, Chief Land Registrar in the Department of Lands and Survey; and Melipa Saufatu, Draughtsman in the Public Works Department. All the affidavits take issue with the plaintiff's claims for breach of contract and compensation for loss of business and other related losses. Whether the defendants' argument will succeed or not is not something that I need to decide on at this stage. I am, however, satisfied that the materials disclosed in the affidavits filed on behalf of the defendants are sufficient to entitle the defendants to defend the action in this case.
13. In the circumstances, it would not be just to grant leave to the plaintiff to enter judgment in default. Consequently, the plaintiff's application for leave to enter judgment in default against the defendants is refused.
14. The Court only refused the plaintiff's application in this case because it was satisfied that on the strength of the defendant's affidavit materials before the Court, the defendants are entitled to defend the action. This does not relieve the defendants from complying with the rules on pleadings by filing a Defence to the plaintiff's action. The defendants must file a Defence and they now have 14 days from today's date to do so.
15. The plaintiff has asked for costs of this application. Although the plaintiff's application fails, the application would not have been brought had the defendants complied with the rules of pleading by filing a Defence in the first place. The defendants must bear the costs of this application in the sum of $250.00.
16. The Order of the Court;
	1. The Plaintiff's application for leave to enter Judgment in default against the defendants is refused.
	2. The defendants must file a Defence to the plaintiff's Statement of Claim within 14 days from today's date (2/5/23).
	3. The defendants to pay the plaintiff's costs of this application in the sum of $250.00
Dated this 2nd day of May 2023.
Sir John Muria
Judge
3/5/23