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Asingera v Irara [2008] SBHC 3; HCSI-CC 108 of 2003 (15 February 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number: 108 of 2003

ASKELON ASINGERA (1ST PLAINTIFF) AND
AROSI VISION LINK SERVICES (2ND PLAINTIFF) AND
BULACAN INTERNATIONAL (SI) LIMITED (3RD PLAINTIFF)

v.

PETER IRARA (1ST DEFENDANT) AND
GOLDEN GISA (2ND DEFENDANT) AND
ARAM PWARONGO (3RD DEFENDANT) AND
AGRIPA MONO (4TH DEFENDANT)

High Court of Solomon Islands
(Palmer CJ)
Civil Case Number: 108 of 2003

Date of Hearing: 24th August 2007
Date of Judgement: 15th February 2008

Bridge Lawyers for the Plaintiffs
Suri’s Legal Practice for the Defendants

This is an application by Bulacan Integrated Wood Industry (SI) Ltd ("Bulacan"), the third plaintiff to set aside default judgment entered against the plaintiffs on 7th June 2005 and all consequential orders.

Grounds relied on are set out in the affidavit of John Sy ("Sy") filed 23rd March 2007. Two main grounds are relied on. First, is that at no time was Bulacan notified of the orders or proceedings before the court in which Bulacan was represented by Messrs. PT Legal Services. Sy says in his affidavit that as the manager of Bulacan he was never informed of any orders of the court dated 17 September 2003, or 28 February 2005, or any other orders or directions thereafter. He says that Bulacan ceased working for Arosi Vision Link Services ("Arosi Vision") as of June 2004 and left the concession area shortly thereafter. He was never advised of any application for default judgement by PT Legal Services. The only time he became aware of the orders for damages was when he was told about a hearing on 28 February 2007 for oral examination. He then instructed Bridge Lawyers to represent Bulacan and to file application to have the default judgement and related orders set aside.

The second ground relied on relates to the existence of a valid timber rights agreement based on a valid timber licence covering its operations in the disputed area. Bulacan says that the area in which it carried out logging operations was called Hanengai land and that it had been determined by the Makira Provincial Executive that the persons lawfully entitled to grant timber rights in the area was Asingera.

I am satisfied Bulacan have demonstrated that they have a viable defence based on the existence of a timber rights agreement and a timber licence over the disputed area. I am also satisfied on the material before me that delay in filing any defence to the Counter-Claim was not caused by it but by PT Legal Services. To allow the default judgement to stand when a viable defence exists would be contrary to the interests of justice.

I am satisfied accordingly that the default judgement made against the plaintiffs on 7th June 2005 and all consequential orders should be set aside. I grant leave to file defence to Counter-Claim out of time and direct that this be done within 14 days from date of this judgement.

On the question of costs, the only issue before me is whether the costs of this application should be awarded against PT Legal Services or to be borne by the Plaintiffs in any event. Since the Plaintiffs have not sought orders for costs from PT Legal Services, costs of this application is to be borne by the Plaintiffs.

Orders of Court:

1. Set aside judgement in default of 7th June 2005 and all consequential orders.

2. Grant leave to file defence to Counter-Claim out of time.

3. Direct that defence to Counter-Claim be filed within 14 days.

4. Costs unless otherwise directed to be borne by the Plaintiffs.

The Court.