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Sukumaran v Pillai [2013] SBHC 153; HCSI-CC 396 of 2012 (20 November 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

MARSHALL PILLAI SUKUMARAN
1st Claimant

AND:

SUNIL PILLAI, WENDY RAKEI, LEKSME YU,
and SURESH PILLAI
2nd Claimants

AND:

JAYA KUMAR PILLAI and TABETHA FEKAU
1st Defendants

AND:

ATTORNEY GENERAL
(representing the Registrar of Titles)
2nd Defendant

AND:

ATTORNEY GENERAL
(representing the Commissioner of Lands)
3rd Defendant

Mr. A. Rose for the 1st and 2nd Claimants.
Mr. W. Rano for the 1st Defendant.
No appearance for the 2nd Defendant.

Date of hearing: 15th November 2013
Date of Judgment: 20th November 2013

RULING

Apaniai, PJ:

Introduction.

1. This is an application by the 1st and 2nd Claimants for default judgement against the 1st Defendant on the ground that the Defendants have failed to file defence.
   
2. The application relates to a category A claim filed on 25 October 2012 in which the Claimants seek the following remedies:-
   

[1] A declaration that, pursuant to the will of the deceased Ravindra Pillai ("deceased"), the 1st Claimant is the sole executor of the will of the said deceased.

[2] A declaration that the registration of the 1st Defendants as fixed term estate owners of Parcel Number 192-007-107 was not in accordance with the will of the deceased and is therefore null and void.

[3] An order that the registration of the 1st Defendants as fixed term estate owners of Parcel Number 192-007-107 be rectified under section 229 of the Land & Titles Act on the grounds that the registration was made or obtained by mistake and/or by fraud.

[4] In consequent to orders 2 and 3 hereof, that the 2nd Defendant rectify the register of the fixed term estate owners of Parcel Number 192-007-107 by removing the names of the 1st Defendants as joint owners of the said fixed term estate and replacing them with the following persons, namely, Jaya Kumar Pillai, Tabetha Fekau, Sunil Pillai, Wendy Rakei, Leksme Yu and Suresh Pillai as joint owners of the fixed term estate owners of Parcel Number 192-007-107.

[5] Costs.

[6] Such further or other orders as the court thinks fit.

3. The claim was filed on 25 October 2012 and served on the 1st Defendant on 29 October 2012. A conditional response was filed 1 November 2012 and a further amended conditional response was filed 5 November 2012. Despite the filing of the conditional responses, no defence has ever been filed.
   

Reason for not filing defence.

4. The explanations for not filing any defence have been given by one of the 1st Defendants, Jaya Kumar Pillai ("Kumar"), who is the son of deceased. Kumar has filed a sworn statement in which he said that they did not file a defence because they were not aware of any will left by the deceased. He said that they have instructed their solicitor, Mr. Rano, to request a copy of the will from the Claimants but the Claimants have not provided them with a copy of the will in time to enable them file a defence. Now that they have received a copy, they intend to file a defence. Mr. Kumar has attached to his sworn statement a draft of the proposed defence, which included a counter claim. In the draft defence, they denied that the deceased had made a will; that if a will had been made then it was invalid on the ground of fraud because the deceased did not sign the will, or alternatively, he was incapable of executing any will at the time the will is said to have been executed; and, that if such will existed, no probate has yet been granted in respect of the will.
   
5. In their counter claim, the 1st Defendants have sought, in effect, a declaration that the will is invalid and a further declaration that, even if the will is valid, the transfer document relating to fixed term estate in parcel number 192-007-107 ("Land") was executed prior to the execution of the will and is therefore a valid transfer document.
   
6. I do not think the 1st Defendants have a valid reason for not filing defence in time. Their solicitor had requested a copy of the will on 31 October 2012. A copy of the will was provided to the 1st Defendants' solicitors on 13 March 2013. Still they have not yet filed any defence. I am satisfied the 1st Defendants' delay is contumelious and deliberate or else it is the result of sheer careless attitude on their part and that of their solicitors.
   
7. That, however, does not solve the issue we have at hand which is whether default judgment should be granted.
   

Principles governing the granting of default judgments.

8. Granting of default judgments is discretionary. In determining whether or not to grant a default judgment, the court must have regard to the nature of the claim. If the nature of the claim is such that it would be unjust in the circumstances to enter default judgment, the court will not enter default judgment but will set the case down for trial[1]. Generally, claims which seek declaratory remedies fall within this category of claims[2] because declarations are equitable remedies. In such cases, it would be unjust to enter default judgment in the absence of hearing evidence and arguments[3]. Even where a defence has been filed late, the court cannot simply ignore the contents of the late defence. It must use the contents to assess whether there is a good defence[4]. If a good defence is shown by the late defence, that is sufficient reason for proceeding to trial, instead of granting default judgment. The defendant will of course be penalised for failing to file defence in time unless he shows good reasons for failing to do so.
   
9. The case of Lethy & Siako v Luluku & Others[5] was a case where the court had refused to enter default judgment despite the Defendants' failure to file defence. The claimants have issued writ seeking declarations that they, representing their tribe, were the true original customary owners of Parcel Number 079-005-LR115 and were entitled to the perpetual title in that parcel number. They also sought orders to rectify the perpetual estate register by removing the name of the 1st Defendant and replacing them with their (claimants') names. Evidence showed that copies of the claim were served on all 4 defendants. The 1st and 2nd Defendants did file a joint defence on 24 July 1996. In fact, they should have done so by 29 June and 26 June 1996 respectively. They were late in filing their defences. The 3rd and 4th Defendants should have filed their defences by 29 May and 12 June 1996 respectively. They had not filed any defence at all.
   
10. On an application for default judgment, the court refused the application on the ground that the nature of the claim raised a fundamental question about jurisdiction, that is, whether the High Court has power to make a declaration that the claimants were the original owners in custom of Parcel Number 079-005-LR115. The court said (at pages 3 and 4 of the judgment) that the question of customary land ownership are matters within the exclusive jurisdiction of the local court with the High Court having limited jurisdiction only. That raises the further issue whether a cause of action in the High Court had been disclosed. On that basis, the court refused to enter judgment against the 1st and 2nd Defendants.
    
11. Not only had the court refused to enter judgment against the 1st and 2nd Defendants, it had also refused to enter judgment against the 3rd and 4th Defendants despite them not having filed any defence at all. The reason for refusing to enter judgment against the 3rd and 4th Defendant was that since the same remedies were sought against all 4 defendants, it would be unfair and not proper if judgment was entered against the 3rd and 4th Defendant when none was entered against the 1st and 2nd Defendants. The court instead ordered that the case be listed for trial.
    
12. The case of QQQ Holdings Ltd v Honiara City Council[6] is also another case on the point. In that case, the plaintiff had sought a ruling on the validity of certain fees imposed by the defendant for carrying on business in Honiara. The defendant failed to file defence and the plaintiff applied for default judgment. The court refused the application saying that the validity of the fees cannot be decided on the basis of the statement of claim alone. At page 2 of his judgment, His Lordship, Kabui, J. said "Reliance upon the statement of claim alone ... for the purpose of deciding to grant an equitable relief such as granting a declaratory order can be problematic."
    
13. The case of Austen v Wilding[7] is also another case on the point. In that case, the plaintiff filed an action against the defendant seeking declaration that she was entitled to possession of a certain land. The defendant filed an appearance but failed to file a defence. The plaintiff did not seek default judgment but instead applied to have the case listed for a speedy trial of the action. The court agreed that that was the right course of action to take. It granted the application agreeing that the nature of the claim requires that a trial was the proper approach to adopt instead of seeking default judgement.
    

Orders.

14. In the present case, it is my view that the nature of the claim is such that it would be unjust in the circumstances to enter default judgment. The court would need to hear evidence and arguments on the claim as well as on the question of the validity of the deceased's will as well as other matters raised in the proposed defence and counterclaim before it can be able to arrive at a proper judgment.
    
15. The orders of the court are as follows:-
    

[1] The application for default judgment is dismissed.

[2[ The case is adjourned to 5 December 2013 for mention and further directions.

[3] The costs of this application are awarded against the 1st Defendants on indemnity basis to be taxed if not agreed.

THE COURT

_________________________
James Apaniai
Puisne Judge

^[1] Charles v Shepherd [1892] UKLawRpKQB 150; [1892] 2 QB 622; Tarasel v kariuvi; QQQ v HTC Civil case No. 39 of 2003 (1 may 2003).
^[2] QQQ v HTC [2003] SBHC 18; HC-CC 039 of 2003 )1 May 2003).
^[3] Ibid.
^[4] Lethy v Luluku [1998] SBHC 13; HC-CC 104 of 1996 (23 February 1998).
^[5] Civil Case No. 104 of 1996 (Ruling 23 February 1998).
^[6] [2003] SBHC 18; HC-CC 039 of 2003 )1 May 2003).
^[7] [1969] 1 WLR 67.