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Vaymen v Tuhanuku [2017] SBHC 6; HCSI-CC 152 of 2013 (10 February 2017)

IN THE HIGH COUR T OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 152 of 2013

BETWEEN: WILLIAM VAN VAYMEN - First Claimant
AND: JOHN WHITESIDE - Second Claimant
AND: RUSSELL ISLANDS ESTATES LIMITED - Third Claimant
AND: LEVERS SOLOMON LIMITED - Fourth Claimant
AND: PACIFIC MANAGEMENT SERVICES LIMITED (SI) - Fifth Claimant
AND: DAVID TUHANUKU - First Defendant
AND: TONY KAGOVAI - Second Defendant
AND: NATION WIDE LIMITED - Third Defendant

Date of Hearing: 25^th October 2016
Date of Ruling : 10 February 2017

Mr D. Nimepo for the First to Fifth Claimants
Mr M. Pitakaka for the First to Third Defendants

RULING

Faukona PJ: An amended application was filed on 8^th August 2015 against a default Judgment entered against all the Defendants on 18^th October 2013 by the Assistant Registrar of the High Court.

2. It would appear the application to set aside was filed one year and ten months after the default judgment was entered.

3. Rule 9.53 (b) requires, if the application is made/filed more than three months after the judgment was entered, explain the delay. The court shall not set aside the judgment unless it is satisfied that it is in the interest of justice so to do.

4. With preciseness and clarity Rule 9.53 (b) has provided for initial requirements which the applicant must establish by reason why within three months of receiving a copy of the default judgment failed to explain the delay for not filing the application to set aside.

5. I have read the two sworn statements the Counsel for the Defendants rely on in support of this application. None of these explain the delay and the cause of such delay. Evidence reveals that the First Defendant was served with a copy of the default judgment in early February 2014. Application to set aside was filed on 3^rd June 2014. The application was filed late and there was no explanation of the delay.

6. Second part of R9.53 (b) is more or less provide basis for exercise of discretionary power. The issue is whether I should set aside the default judgment in the best interest of justice? I noted my powers are enshrine in Levers Solomon Ltd V Nollen Leni.

7. To assist me decide on whether I should set aside the default judgment, I have read the claim, the defence and the sworn statements the Defendants rely on in supporting this application to set aside.

8. The very crux of this case was the publications, press releases, and number of articles which the First Defendant published in social media newspaper. If I am to exercise my discretionary power, definitely I would refuse to set aside the default judgment. I will further disclose reasons when I deal with the issue of meritorious defence.

REASONS FOR DELAY IN DEFENDING THE CLAIM

9. The major reason asserted by the Defendants for not filing a response or defence as prescribed by the time-frame was because they were not given opportunity to do so. The First Defendant stated in paragraph 5€ of his sworn statement filed on 3^rd June 2014, that in early 2014 some persons dropped off some documents in his office whilst he was away. Those documents included the claim and the sworn statement by John Whiteside filed on 23^rd May 2013.

10. The argument advanced by the First Defendant is that the claim was not personally served on him; it took one year since filing of the claim to become aware of.

11. The First Defendant almost corroborates by finding the claim and a sworn statement in his office. Parallel to that is the sworn statement of Clement Natei who deposed that on 23^th May 2013 at about 9.45 served the First Defendant personally at his place of employment at the office of the Prime Minister in Honiara.

12. The First Defendant denied being served personally and the requirement under Rule 6.4 states that service of a claim must be done on the Defendant personally. Is the First Defendant being truthful of his argument?

13. I noted further that Exh “CN” attached to my Natei’s sworn statement of service, implicated that both the First Defendant and the Second Defendant had refused to sign as being recipients of the documentations, which would have affirmed service was done personally.

14. If the First Defendant is being truthfully, has he filed a defence 14 days after he received the documents in early February 2014? The draft defence attached to his own sworn statement filed on 3^rd June 2016, was almost 3 ½ months late. According to R5.37 defence must be filed within 14 days from the date of service.

15. In this case the defence was not filed in accordance with R5.37. I noted the First Defendant’s difficulties in acquiring the service of a Solicitor. However, that is not an acceptable and good reason for not filing a defence. The rules are structured in a manner that a party to a civil litigation is expected to act instantaneously upon being served with court documents. To prolong the court processes unreasonably cannot be accepted and the rules must be strictly abided with so as to maintain the overriding objectives enshrine in R1.3, that the Rules is to enable the courts to deal with cases justly with minimum delay and expense.

16. If am to belief that Natei had effected personal service upon both Defendants on 23^rd May 2013, then was defence filed 14 days thereafter, there was nothing. If I am to take service was done in early February 2014 when the First Defendant received those documents did he inquired with the High Court as to the status and progress of the case and if what else needed to comply with. There is no evidence to suggest so. The First Defendant merely stated that he received the claim about a year later since it was filed, that evidence is unconvincing.

17. The truth as I would perceive is that the Defendants are not being truthful of what they have said. Personal service had been effected but they denied because they had failed to file a defence as required by the rules. The same attitude was displayed in their evidence when the default judgment was served on them. They seem to manifestly say that all the documentations were served late and that is the game they played. As a result they have nothing much to do, the blame is on the Claimants, they had faulted. I am far from being convinced by that sort of evidence and will not accept it. Even the original application to set aside was filed on 3^rd June 2014; four months after the Defendants had received the claim.

18. It is easy to concoct dates and blame others and camouflaged it with late service and difficulties to secure a solicitor. The Defendants are educated and working class people. There should not be any problem in securing a solicitor. In fact they had gone through other civil litigation previously and should have understood court processes; this case should not be dragged further.

MERITORIOUS DEFENCE

19. I have read the joint draft defence and Exh. “DT 1” attached to sworn statement deposed by Mr Tuhanuku filed on 3^rd of June 2014. I was reminded this case is about claim for damages for libel.

20. On paragraph 8 of the draft defence the First Defendant admitted making a press release as stated in paragraph 10 of the claim, but deny those words do mean all or any of the natural and ordinary meanings which were alleged nor did they contain or capable of having the alleged defamatory meaning.

21. Upon reading paragraph 10 of the claim the First Defendant alleged the Second Claimant was engaged in activities which amounted to national security threat. Further the First Defendant stated actions taken by the Second Claimant, Mr Wong, Mr Goh and Mr. Whim were based on corporate structure which they shrewdly cooked up and built lies, manipulation and corrupt tactics.

22. Are those words in their ordinary and natural meaning do not bear or not capable of alleging defamatory meaning. To defame someone according to Longmans Dictionary of Contemporary English ^(2), is to damage a good opinion held about a person, usually, unfairly by writing something bad about him.

23. Are those words, good words said about the Second Claimant and his friends? I do not think so; labelling them as lies, manipulation and practising corrupt tactic and publishing such items in public media (newspaper) is defamation at its peak. They are words which definitely lowered the status and standing of those persons concern including the Second Claimant.

24. Again on paragraph 14 of the claim the Claimants alleged defamation when the First Defendant published in the Sunday Star heading “Union faces demise” on front page and which the First Defendant stated that the Second Claimant and his associates evil scheme to destroy SINUW must be stopped. At paragraph 11 of the draft defence, the First Defendant admitted publishing the words. Are those words in their ordinary or natural meaning not capable of alleging defamatory meaning? I must response yes they are. Use of the words “associates’ evil scheme” attributes deeper meaning as over whelmed by evilness. An allegation undoubtedly categorises as defamatory.

25. Another allegation again framed on paragraph 15 of the claim which concerned a news programme broadcast by national radio in which First Defendant stated that the formation of RIPEL must be investigated and an audit report compiled, and labelled the First Claimant and his friends were corporate structure shrewdly cooked, manipulated and corrupt.

26. The First Defendant denies being involved and calls for SIBC as a broadcast source to be included as a party. This allegation was denied by the First Defendant. Is there any merit in it, I don’t think so. The First Defendant employs the same line of using almost the same words as previously used. The fact is that SIBC cannot broadcast news items unless they gather from their investigated journalism staff. In most cases sources from outside feed into the broadcasting machinery before news are aired for public hearings. So there is no merit in the draft defence as far as this particular issue is concerned.

27. At paragraph 13 of the joint draft defence the Defendants admitted on or about 8^th May the Solomon Star published a letter by the First Defendant entitled, “why we lost the case”. The crux of the letter is that the First Defendant alleged the Second Claimant and another were responsible for the failure of SINUW’s lawyer to attend court. As a result SINUW lost the case against RIPEL.

28. The bottom line of such allegation as I would perceive, is that the Second Claimant and his friends had bribed the counsel representing SINUW with evil motive that in the counsel’s absence SINUW was bound to lose the case.

29. Allegation of bribery cannot be treated lightly. This is a crime commonly prevalent in Solomon Islands. Very often bribery allegations immerged in various work places in either private or public sector. To label someone in a newspaper as a briber is absolutely defamation.

30. Further, on paragraph 15 of the draft defence, the First Defendant admitted on or about 10^th May 2013 he caused Solomon Star to publish an article “RIPEL”. The First Defendant denied the allegations contained therein. His reasons are the same as other reasons I quoted above, hence, attracted no change of approach from me.

31. I also noted the allegations as particularise in paragraph 23 of the claim. The First Defendant used the words by reference to the Second Claimant and his two friends, alleging them for having manipulated the company to take total control of RIPEL when they hold only 15% shares in RIPEL. That may be a fare comment as well what the First Defendant stated and as alleged in paragraph 24 (a) of the claim.

32. However at paragraph 25 of the claim, still under the heading RIPEL, the first Defendant admitted on 10^th May 2013, and label that RIPEL set up was a mafia style of cartel structure, and ought to undo it. The words mafia and cartel are words that describe criminal activities at some level which are serious and no one would accept.

33. Paragraph 16 of the draft defence made reference to paragraph 28 of the claim which concerns publication in Island Sun newspaper issue No. 1425 under the heading “Inquiry Into RIPEL”. The Defendants had maintained their stand in paragraph 15 of their draft defence in responding. It appears the nature of allegations were the same though appeared in two different newspapers? My approach would be same as I deal with the incident in paragraph 15 above.

34. Paragraph 17 of the draft defence refers to paragraph 19, 30 and 31 of the claim. Those paragraphs alleged, that on 13^th May 2013 the First Defendant published a letter titled “RIPEL Saga”. The First Defendant admitted it but denied the letter mean or bears any of the natural or ordinary meaning that will injure human reputation as alleged.

35. In reading paragraph 29 of the claim what was alleged seem to comprise fair consent. In paragraph 30 of the claim the First Defendant admitted allegation and maintain by using the words “mafia style”. Again as I have sounded above, to label someone as mafia in a newspaper is of cause matching the Second Claimant as someone involved in criminal activities, in a corrupt deadly manner. Are those words not likely to injure anyone or the First Defendant for that matter? Whether in general or specific sense those words are damaging and injuring the reputation of a person. The same words were published in the Island Sun Newspapers No. 1426 on 13^th May 2013. As regards repetition in another newspaper, I maintain my views to apply to the other publication as well.

36. Concerning publication in Solomon Star on 16^th May 2013, of which the First Defendant admitted but denied carrying any defamatory meaning. I have the privilege to read paragraph 35 – 39. Paragraph 35 (a) consist of a label that the Second Claimant and his same two friends were involved in a corporate fraud. Those words are so precise and concise in themselves. The intention undoubtedly would be to lower the character of the Second Claimant and friends.

37. Paragraph 30 (a) was an allegation in which the First Defendant stated that he would cause investigation into how easy was it for the Second Claimant and two friends to take over RIPEL. He stated Mr. Goh would have been involved in compromising top and Community leaders of Central Province including the former Prime Minister, Mr Kemakeza. Those words were being admitted, and of course they carry and suggested some evil collaboration had been taken place by the National and Provincial Leaders of Central Province. They may be just suggestions, however, names of person had been mentioned as likely participators, therefore, of course damaging.

38. Again on paragraph 37 (a) under the same item the First Defendant described the Second Claimant and his same two friends as remnants of Asian. Mafia that controlled Solomon Islands through bribery and corruption headed by Robert Goh. Again those words are very clear defamatory of character.

39. Paragraph 38 of the defence under the same item of the same publication, the First Defendant stated there was evidence, even circumstantial will point to possible bribery. That again may be an opinion from a lay man but it has a kind of impact on readers that the author did have evidence to proof any allegation of bribery. That too will induce readers to belief that the allegations were true and there is evidence to proving it in court. Of course such expression can prompt negative impression by public on the Second Claimant as a guilty person. Is that an ordinary language that someone can use it against or to another that is irrespective and lowering of a character of another person.

40. Paragraph 39 (a) quoting what the First Defendant stated. In fact he used the words that he had asked the Government through the Commissioner of Labour to kick the Second Claimant immediately. That statement may be fair and may not defence any character but it denotes that the First Defendant was a powerful leader
who cause the unexpected to occur in a Governmental set up, and would appear his decision is final; may be, but not on paper

41. As for pleading in paragraph 40 of the claim; I will leave it to court wherever the substantive issues are litigated and debated. That approach seems necessary because paragraph 22 of the draft defence denied the words complained of concerned personal actions of the First and Second Claimants. That again comprises the issue whether some of the allegations associated with personal claimants connected to co-operate Claimants as well. That has to be reserved for time being.

42. Paragraph 36 of the draft defence intended to particularise words complained of in the claim; were merely fair comments made by the First Defendant in good faith without malice. I have read in full the particularisation paragraphs. What I noted is that the Defendants particularisations are superficial and are intended to dilute the actual words used in the publications. What transpires is that the particularisations are sloppy and are insufficient.

43. It has to be noted that allegations of defamations arose from various dates of publications. Proof one occasion will render the Defendants liable. Hence, the probability that the Claimants will be liable are eminent. The fact publication had been admitted the words used are also admitted. The only issue is where those words contain defamation elements.

44. By using words describing human being’s action as shrewdly cooked up, lies, manipulation and corrupt tactic, evil scheme to destroy SINUW and on allegation of bribing a lawyer not to attend court hearing in order to jeopardise SINUW’s case against RIPEL. Those are some of the instances alleged to contain allegations of defamation.

45. My assessment of facts pleaded is not in the sense that I will finally concluded and give judgment to the case. I am merely investigating whether the defence has any merit at all. I find their is none.

46. That prompted me to conclude that the default judgment is not one of irregular judgment but regular. Therefore I must exercise discretion and finally conclude by refusing the application for to set aside the default judgment.

ORDER

1. Application to set aside default judgment entered against the Defendant on 18^th October 2013, dismissed.
   
2. Costs of the application be paid to the Claimants by the Defendants.
   

THE COURT