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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 057 of 2000
NATIONAL BANK OF SOLOMON ISLANDS LIMITED
v
VALBROS LIMITED, SEBASTIEN HARRY WALE
and ROSE WALELULU
High Court of Solomon Islands
Before: F. O. Kabui, J
Civil Case No. 179 of 2000
Hearing: 3rd April 2001
Judgment: 4th April 2001
J. Katahanas for the Plaintiff
3rd Defendant in person
JUDGMENT
(Kabui, J): By Writ of Summons filed on 8th June 2000, the Plaintiff claims against the 1st, 2nd and 3rd Defendants the sum of $305,585.33 plus 18% interest per annum from 26th April, 2000 until payment of the debt. Costs of $180.00 are also claimed by the Plaintiff. The Writ of Summons was served on the 1st Defendant on 29th August, 2000 whilst in the case of the 3rd Defendant, the Writ of Summons was served on her on 14th August, 2000. The 2nd Defendant was served on 3rd October, 2000. There being no appearance to the Writ of Summons by all the Defendants, the Registrar of the High Court entered a judgment in default of appearance on 11th October, 2000 for the sum of $305,585.33 with interest at the rate of 18% per annum from 26th April, 2000 until payment. No costs were awarded. However, in terms of Order 13, rule 11 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules), no judgment in default of appearance shall be entered unless leave is granted by the Court upon application where the relief being sought is payment of moneys secured by a mortgage or charge or there is a sale of property. There is also a similar procedure under Order 57, rule 18 of the High Court Rules where leave of the Court is not required.
Apart from that, I do not quite understand the difference in substance, if any, between Order 13, rule 11 and Order 57, rule 18 of the High Court Rules. From reading the judgment of Clauson L.J, in Redditch Benefit Building Society v Roberts [1940] 1 A.E.342, I gathered that the difference of procedure was historical in its origin. It had something to do with the Chancery and the Kings Bench before the Judicature Act. In this case, the Notice of Motion had been served upon the 1st Defendant and one of its directors Mrs. Rose Walelulu attended Court in person and admitted liability on behalf of the 1st the Defendant there and then. The evidence in Court were the Writ of Summons, the Statement of Claim, the affidavits of service, the Notice of Motion and its supporting affidavit filed by Mr. Titiulu on 7th February 2001. The Plaintiff’s Notice of Motion was therefore supported by sufficient evidence in terms of rule 11 of Order 13 of the High Court Rules. In terms of section 171 of the Land and Titles Act ( Cap 133) the Plaintiff is entitled to enforce the charge in its favour against the 1st Defendant to recover any principal sum or interest due under the charge. The Court under section 171 above has the power, amongst other things, to sell the interest charged which in this case is the fixed-termed estate in Parcel No. 191-003-82.
A threat of recovery of the overdraft accounts operated by the 1st Defendant was made as far back as 13th May, 1997 followed by subsequent demands for payment some of which were as recent as 22nd May, 2000. As at 26th April, 2000. the 1st Defendant owed the Plaintiff the sum of $305,585.33 with the interest rate at 18% per annum continuing to accrue to the account until payment. Whilst Mr. Tonawane on behalf of the Development Bank of Solomon Islands (the DBSI) revealed that the 1st Defendant owed the DBSI over $800,000.00, such information would have no relevance to the question of the 1st Defendant’s liability towards the Plaintiff. The same applies to the revelation by Mr. Tonawane the Parcel No. 191-003-82 was being leased to one Osimae for $7,000 rental for the first 6 months and $9,500 for the next 6 months. Apart from this information being given from the bar table unsworn and therefore had no evidential value as regards the 1st Defendant’s liability, it was obviously a good basis for discussion between the Plaintiff and the DBSI at some other time. But certainly, it has no bearing on the Plaintiff’s right to recover its moneys from the 1st Defendant. The DBSI is not a party to this case.
The Plaintiff’s Notice of Motion
The Notice of Motion filed on 8th May, 2001 asks for the following Orders-
1. The Plaintiff have leave in default of appearance to enter judgment herein against the First Defendant in the sum of SBD 305,585.33 together with interest thereon at the rate of 18% per annum from 26 April 2000 up to and including date of payment;
2. The Plaintiff have leave to sell the First Defendant’s Fixed Term Estate in Parcel No. 191-003-82 and any of the other land and assets of the First Defendant with directions in respect of such sale;
3. The Fist Defendant immediately deliver vacant possession of parcel Number 191-003-82 and any of the other lands or assets of the First Defendant to the Plaintiff.
4. The First Defendant, its servants, agents, invitees, licences or others entering Parcel No 191-003-82 or any of the other lands of the First Defendant under the authority of the First Defendant immediately vacate the same and remove all their chattels form same;
5. The Police Commissioner at Honiara and all Police Officers under his direction immediately upon receipt of any order made pursuant to paragraph 3 and 4 thereof attend and enforce the said order using such force as is reasonably necessary for such purpose;
6. The Defendants pay the Plaintiff’s cost of and in connection with this action.
7. Such further or other relief as this Honourable Court may seem meet.
In terms of Order 13, rule 11 of the High Court Rules, the judgment in default of appearance entered on 11th October, 2000 by the Registrar would appear to be inconsistent with the procedure prescribed in Order 13, rule 11 above. It would appear from the Court File that the judgment in default of appearance entered on 11th October, 2001 was done administratively by the Registrar. I would disregard it for non-compliance with Order 13, rule 11 above. In fact, the Plaintiff loses nothing by my disregard of the judgment in default of appearance I refer to above.
Priority of Charges
In terms of section 164(2) of the Land and Titles Act , the owner of an estate may create more than one charge in respect of that estate ranking in accordance to the order in which they are registered. In this case, it is not disputed that the Plaintiff holds the second charge over Parcel No. 191-003-82. The DBSI holds the first charge. (See Exhibit “BT3”, “T9” and “BT10” attached to Mr. Titiulu’s affidavit filed on 7th February, 2001). There seems to be no law preventing the Plaintiff from enforcing its charge over Parcel No. 191-003-82 as the second charges in this case. As I have said, the concern of the DBSI as the first charges is a matter between the Plaintiff and the DBSI. It has nothing to do with the Plaintiffs right to enforce its charge over Parcel No. 191-003-82 as the second charges. I see no reason why I should refuse the Plaintiff’s Notice of Motion. I therefore grant the application and make the orders sought in the Plaintiff’s Notice of Motion.
F. O. Kabui
Judge
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