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Solomon Islands National Provident Fund Board v Nonga [1999] SBHC 126; HC-CC 287 of 1999 (2 November 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 287 of 1999

SOLOMON ISLANDS NATIONAL PROVIDED FUND BOARD

V

DON RECTOR NONGA

High Court of Solomon Islands
(KABUI, J)

Hearing: 2^nd November, 1999 at Gizo
Judgment: 2^nd November, 1999 at Gizo

J. Apaniai for the Plaintiff
Defendant is in person

JUDGMENT

(F. O. Kabui, J): This is an application by Originating Summons filed on 6^th September, 1999 seeking the following Orders -

1. That the Plaintiff be at liberty to see the property, namely Parcel No. 097-004-58, comprised in the Charge made between the Plaintiff and the Defendant and dated 11^th March 1991 through public tender.
   
2. That the Plaintiff seek further directions from the Court after the close of tenders.
   
3. Such further or other relief as this Honourable Court thinks fit.
   
4. That the Defendant pay the costs of this application.
   

This application has been brought under section 171 of the Land and Titles Act (Cap. 133) to enforce a charge in favour of the Plaintiff.

The Facts

The Plaintiff agreed to lend and the Defendant agreed to borrow the sum of $53,000 on 18^th February, 1991. The loan of $53,000.00 was fully disbursed to the Defendant on 19^th May, 1991. The purpose of the loan was to construct the Defendant’s residence at Gizo on Parcel No. 097-004-58 (the property). The interest rate was 12.5% per annum. The loan repayment was $650.00 monthly instalment to commence on 31^st May, 1991. This repayment schedule was to continue over 20 years until the loan was fully paid. Unfortunately, the Defendant failed to repay the loan under the agreed repayment schedule. The sum of $23,650.00 was the arrears outstanding against the Defendant. After discussions between the parties, the repayment of the loan was re-scheduled so that the new repayment monthly instalment became $1,270.00. The Defendant again defaulted under this new arrangement. By 30^th June, 1999, the arrears accumulated to $12,700.00. The total indebtedness of the Defendant to Plaintiff now stands at $108,884.86 being the combination of the arrears and the principal loan currently standing at $96,184.86. The Plaintiff has now decided to enforce its charge over the property to recover its funds. The charge was executed by the parties on 11^th March, 1991 as security for the plaintiffs loan to the Defendant.

The Law

Section 171 of the Land and Titles Act (Cap. 133) states –

“(1) A charge may be enforced upon application to the High Court, and not otherwise;

(2) Upon any such application, the Court may make an order –

• (a) empowering the chargee or any other specified person to sell and transfer the interest charged, and providing for the manner in which the sale is to be effected and the proceeds of the sale applied;
  
• (b) empowering the chargee or any other specified person to enter on the land and act in all respects in the place and on behalf of the owner of the interest for a specified period, and providing for the application of any moneys received by him while so acting; or
  
• (c) vesting the interest in the chargee or any other person either absolutely or upon such terms as it thinks fit, but such order shall, subject to subsection (5), not take effect until registration thereof:
  

Provided that no such order shall be made in respect of a person who is not a Solomon Islander.

(3) ................................
(4) ...............................
(5) ...............................”

Clearly, the Court has the power to order the sale of the property including the manner of sale and how the proceeds of the sale are to be applied. There is also similar power of the Court to order sale of property under Order 54 of the High Court (Civil Procedure) Rules 1964. As a matter of practice, Order 54 above is a good guide as to the details of the sale process sanctioned by the Court.

Decision

In this case, I have no difficulty in granting this application. I grant it accordingly. This means I order that the property be sold by public tender and the proceed thereof be applied to satisfy the Plaintiffs demand for its funds. I further direct that the winning bidder be sanctioned by the Court before the winning bidder is announced by the Plaintiff. I further direct that at the conclusion of the sale, the title to the property the transferred to the winning bidder. I also order that the Defendant pay the cost of this application.

F.O. Kabui
Judge