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

Civil Case No. 181 of 2011

BETWEEN:

Wilson rano and leonard rotu
- Claimant/Respondents/Enforcement Applicants

AND:

MACLIS KAIPUA
Defendant/Applicant/ Enforcement Respondent

Date of Hearing: 11th March 2015
Date of Ruling: 25th May 2015

Mr. W. Rano for the Claimant/Respondents/Enforcement of Application
Mr. A. Hou for the Defendant/Applicant/Enforcement Respondent

RULING

Maina J:

The Defendant applies for orders to stay the enforcement and set aside an order that strike out the application to set aside a default judgment of 15th November 2011. The struck out order was made on 19th March 2014 and perfected on 27th March 2014.

And the Defendant seeks to relist the application to set aside the default judgment to be heard by the Court.

Brief Background

The Claimants are registered owners of FTE in Parcel No. 191-002-75 and instituted a claim of trespass against the Defendant at the High Court on 17th March 2011. The claim was served to the Defendant through Mr. Tahoma.

On 15th November 2011, the Claimant obtained a default judgment and served on the Defendant on 16th November 2011 and the enforcement order under Rule 17.3 and 21.133 was issued on 7th February 2013 but was not enforced by the Sheriff.

On 22nd February 2013, the Defendant filed an application to set aside the default judgment of 15th November 2011. But the application was struck out for non-appearance of the Counsel and the Defendant on 19th March 2014. The order was perfected and sealed on 27th March 2014. Upon that order the sheriff reissued eviction notice on 29th May 2014.

On 5th June 2014, the Defendant filed an application to stay the enforcement order and order to setting aside the order of 19th March 2014 that struck out Defendant's application to set aside the default judgment.

When the application to set aside the default judgment came before the Court for hearing on 19th March 2014, the Counsel for the Defendant and his client did appear in Court and their application was struck out. But the Counsel for the Defendant and his client said that the non-appearance at the hearing of the application was due that the counsel was sick and admitted at the National Referral Hospital.

Issue

Whether the non-appearance of the Counsel and Defendant is reasonable to set aside the order of the Court on 19th March 2014?

There are two parallel orders sought in this application and they are:

1.	to set aside the order that struck out the application to set aside the default judgment and

2.	to stay the execution of the judgment.

And they derived are from separate actions or incidents.

Defendant Case

By the sworn statement Counsel Hou acknowledged his non-appearance on 19th March 2014 at the hearing of the application to set aside the default judgment for his client. He was sick and rushed to National Referral Hospital (Central Hospital No. 9) after he collapsed while waiting for the hearing of this case outside the gate to Court 4 and 5. Counsel Hou was admitted in the hospital for dizziness and blurred vision from 19th March 2014 to 21st March 2014.
Counsel Hou's medical card and sworn statement by his process officer Maevalyn Bata confirmed the fell of Mr. Hou and his admission at the National Hospital.

Defendant said that he relied on his lawyer to represent him in Court.

Counsel Hou as stated in the Certificate of Urgency that this is not a final judgment but a default judgment that is subjected to being set aside under the Rules 17.55(a), 17.56, 17.77, 17.78(b) and 21.9 and 21.10 of the Solomon Islands (Civil Procedure) Rules 2007.

Claimant's Case

Counsel Rano made reference to the history of this matter since 2011 until the various orders were made. He alleges delay of part of the Defendant on all instances of the requirement and even the appearance to the Court.

He alluded to the likely hurdles the Defendant has to overcome in order to succeed in defending his case. It may be proper for Counsel Hou and Defendant to apply under Rules 17.54 and 17.55 of the Civil Procedure Rules. From the orders sought it is application to set aside default judgment and not application to set aside the enforcement order.

Counsel Rano submitted that the application should be refused on the reason that the delay was on part of the Defendant when the default judgment was entered against the Defendant on 15th November 2011 until the filing by Counsel Hou of the application to set aside that judgment on 22nd February 2013.

Counsel for Claimant acknowledged the medical report for Counsel Hou, but said there is discrepancy in the report.

Counsel Rano said for Defendant was not in Court is ignorance on his part, at least he should be in Court. With the reasons, counsel asked the Court to dismiss this application.

The Court

The application filed on 5th June 2014 seeks to stay the enforcement and set aside the strike out orders made by the Court on 19th March 2014.

Whatever the ruling in this application would affect the earlier ruling on the default judgment of 15/11/11 as if it is granted, then by way of relisting the default judgment application for hearing.

On the question of delay in filing the application to set aside the default judgment as raised by Counsel for the Claimant, I would say that it is not an issue with this application but be an issue in the application to set aside the default judgment.

The situation was unfortunate for the Defendant and that his Counsel did not appear to present his case that resulted to the striking out order of his application to set aside the default judgment.

However, the burden is on Counsel and his client to show it is just and reasonable for the Court to exercise its discretionary power to order a stay of execution of default judgment and set aside the struck out order of 5th June 2014.

The Law

Rule 17.54 of the Solomon Islands Courts (Civil Procedure) Rules 2007 provides for set aside an order before the filing of the order. And under and Rule 17.55, the Court may set aside an order at any time, if the order was made in the absence of a party; or the order was obtained by fraud; or the order is for an injunction or the appointment of a receiver; or the order does not reflect the Court's intention at the time the order was made; or the party who has the benefit of the order consents; or for the judgment of specific performance, the Court considers it appropriate for reasons that have arisen since the order was made. 

Under Rule 17.56, if the Court sets aside an order, it may also set aside any order made to enforce the order.

The situations in which such application may, or may not be granted are under Rule 17.55 and it is on the applicant to show that the circumstances justify such granting of that order to set aside the Court on 19th March 2014. Rule 17.55 provides for that circumstance, the Court may set aside an order at any time, if the order was made in the absence of a party. And beside that absence the burden is on the Defendant show that absence is reasonable and the Court to grant the setting aside order sought.

In a similar case with and application to stay execution with Kanna v National Fisheries Development Ltd [2001] SBHC 159; HCSI-CC 033 of 2000 & HCSI-CC 055 of 1999 (18 January 2001) CJ Muria held that a stay would be granted if it is "just and reasonable" and that what is "just and reasonable" depends on the circumstances of each case. And there is also no hard and fast rule can be imposed upon the Court to employ in order to decide what is just and reasonable in a particular case.

The principle was adopted by Apaniai former judge in the Lema General Store Ltd v Chungsol Company Ltd & Others HCSI CC no. 134 of 2012. Both cases were on the stay of execution but with similar nature with this case and they set guidelines for the Court in the consideration of these types of applications and issues that they are to be considered on its own circumstances.

With those circumstances, the Court will make a conclusion if it is just and reasonable to grant a stay, set aside or reject the application.

It is that principle that I, too agree with and adopt that each case must be considered in its own circumstances.

The circumstances of this case is that Counsel Hou for the Defendant came to the Court house on 19th March 2014 for hearing of the application to set aside the default judgment. While waiting outside the gate to Court rooms 4 and 5 he felt dizziness, blurred vision and collapsed. Counsel was rushed to the National Referral Hospital where he received treatment and admitted at the hospital. He was discharged on 21st March 2014.

In simple term the order was made in the absence of the Defendant and his counsel. The Counsel was sick and rushed to the National Referral Hospital just before his client's case came before the Court. Whether the Counsel did not sleep well that previous night or other reasons, but the fact is that Counsel Hou fell on the ground outside the High Court rooms 4 and 5 and was rushed to the hospital. As a result he did not appear for his client at the hearing for the application to set aside the default judgment. And their application was struck out on non-appearance of the Defendant or for want of prosecution.

Defendant did not appear himself in the Court as he was relying on his counsel to appear for him who rushed to National Referral Hospital just before this case came before the Court.

That circumstance speaks well of what had happened and the reasons for non-appearance by Counsel Hou to Court for his client on that day.

That to my view is "just and reasonable" to order a set aside of the struck out order of the Defendant's application to set aside the default judgment. Defendant should also be given the opportunity to be heard by Court in his application.

ORDER

1.	The struck out order of 19th March 2014 is set aside;
2.	Refer to the Registrar fix a date to hear the application to set aside the default judgment;
3.	Enforcement order is stayed;
4.	Cost in the cause.

The Court

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