Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

Otodiana v Mani [2024] SBCA 20; SICOA-CAC 16 of 2022 (14 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. This is an application by way of a Notice of Motion by the respondent, Leslie Mani, to strike out the appeal filed by the appellant on 6^th July 2022 against the decision of the High Court (Keniapisia J). The High Court’s decision was made on 8^th June 2022.

Background

2. The respondent filed a Category C claim on 5^th February 2016 against the appellant for trespass on the registered land in Fixed Term Estate (FTE) Parcel No.191-035-254 situated at Kukum, Honiara and which was registered in the name of the respondent. The respondent’s claim was amended on 10^th May 2016 to add a claim for the eviction of the appellant from the said land. The claim for eviction is premised on the original claim for trespass. The claim was served on the appellant.
3. We simply wish to add here as part of the background of this case that on 4^th May 2018, the appellant died without leaving a Will. The members of the deceased appellant’s family resolved to have one George Kai Otodiana represent his deceased father in these proceedings.
4. There has never been any Letters of Administration obtained to administer the estate of the deceased, although an application was filed on 18th August 2020 in the High Court for Letters of Administrations to administer the estate of the deceased. Nothing further was done on the application for Letters of Administration. There is no dispute that no Letters of Administration has been granted to any person to administer the estate of the deceased.

Defaults by the appellant.

5. The appellant did not file any defence to the respondent’s amended statement of claim. He did, however, request Further and Better Particulars on 15^th July 2016. The respondent filed the Further and Better Particulars as requested by appellant on 7^th February 2017.
6. Still, the appellant had not filed any defence to the respondent’s amended claim and so on 13^th June 2017, the respondent filed an application for default judgment for failing to file defence to the amended claim. The respondent’s application was not dealt with until four years later, on 11 October 2021 at which time the High Court heard the respondent’s application for default judgment. On 22 October 2021 the learned trial judge delivered his ruling, refusing the respondent’s application for default judgment and made a number of Orders, one of which was for the appellant to file defence to the respondent’s claim within 14 days.
7. Despite the Order extending time for the appellant to file defence, the appellant failed to do so. On 14^th December 2021, the appellant had a change of advocate and Dr Philip Tagini became the new Counsel for the appellant. Despite the change of Counsel, the appellant still failed to file defence as ordered by the Court on 22^nd October 2021.
8. Not only did the appellant failed to file defence, his new Counsel failed to attend the mention hearing which fixed for 10^th May 2022. The hearing was again adjourned to 17^th May 2022, at which time neither the appellant nor his Counsel appeared, despite notices sent to the appellant and his Counsel. No explanations were given for the appellant or his Counsel’s absence at both Court hearings.

Default Judgment

9. As a result of the persistent failures by the appellant to comply with the rules of procedure and Court directions, Mr Upwe of Counsel for the respondent, on 17th May 2022 in Court made an oral application for judgment in default or summary judgment to be entered against the appellant. On 8th June 2022, his Lordship, Keniapisia J delivered his ruling, refusing to grant summary judgment since no defence had been filed. His Lordship, however, granted judgment in default against the appellant in terms of the reliefs sought in the respondent’s amended claim.
10. There can be no question that the judgment granted by the learned Judge here is a judgment in default, issued for the persistent failure of the appellant to comply with procedure and directions of the Court. Since the appellant decided to challenge the default judgment, again there are rules and procedure that he must comply with.

Rules and Procedure - Rule 9.52

11. 1This is so elementary. However, this is the second case that has come before us in this Sitting where lawyers glaringly failed to comply with rules and procedure of the Courts. The first case is Kuo Fung Chi v Dodo Trading Ltd [2024] SBCA 3; SICOA-CAC 10 of 2024 (31 May 2024) and now this case. We therefore wish to remind lawyers to follow the rules. Do not rush to the Court of Appeal just because you are unhappy about a Judge’s decision. Read the rules, especially, in a simple matter as challenging a default judgment. We do not wish to sound as tutoring in a lecture theatre, but we must point out that this Court has the inherent power to control its proceedings, including weeding out unmeritorious claims, applications, appeals and other processes which are abuses of the court process
12. The starting point is Rule 9.52 of the Solomon Islands Courts (Civil Procedure) Rules 2007 which provides:
    • “9.52 A defendant against whom default judgment has been entered may apply to have the judgment set aside.”
13. Applying to the same trial Judge or another Judge of the High Court to have the default judgment set aside is the prerequisite to bringing an appeal to the Court of Appeal should a party wishes to challenge a default judgment any further. A party who is aggrieved by the decision of the Judge in a setting aside application can then appeal to this Court. We repeat what we say in Kuo Fung Chi that a party who wishes to appeal against a default judgment obtained against him, must first comply with Rule 9.52 of the Solomon Islands Courts (Civil Procedure) Rules 2007 in the Court below. Whether that has been done or not in this case, is what we shall now turn to in order to decide whether this appeal is properly brought to this Court.

Whether the Appeal is properly before the Court

14. Since the respondent’s application is triggered by the appellant’s appeal, we must now consider first the question of whether the appellant’s appeal is properly brought before this Court. If it is not, then we should exercise the Court’s inherent power of control over its proceedings, ensuring that only matters that are properly brought before the Court are permitted to invoke the jurisdiction of the Court, and that this appeal ought not to be allowed to proceed any further.
15. On the materials before this Court, there is no indication at all that the appellant against whom the default judgment had been entered, made any application under Rule 9.52 to have the default judgment set aside. In the same vein, neither Counsel for the respondent nor that for the appellant raised this crucial point in Court. We do not understand why Counsel can overlook or fail to address such a salient procedural point as that provided by Rule 9.52 of the Solomon Islands Courts (Civil Procedure) Rules. Had both Counsel properly read the learned Judge’s ruling made on 8th June 2022, they would clearly have ascertained that the judgment he made was a default judgment which would trigger Rule 9.52 in their minds. Nevertheless, as we have already indicated earlier, to prevent abuse of the Court process and as well as to control its proceedings, this Court must address the point, whether raised by the parties or not.
16. There is no evidence at all before this Court that the appellant has complied with Rule 9.52 prior to bringing his appeal to this Court. We are satisfied therefore that the appellant’s appeal has not been properly brought before this Court. The appeal is incompetent and a non-starter. It must be struck out.

Result

17. The appellant’s appeal is struck out. There is no appeal before us and consequently it is unnecessary for the Court to consider the respondent’s application for striking out the appellant’s appeal.
18. The appellant has triggered these unnecessary proceedings. The respondent’s costs occasioned by these proceedings must be paid by the appellant, to be taxed, if not agreed.

Muria P
Palmer CJ
Gavara-Nanu JA