IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.71 of 2000
BETWEEN:
NOEL BERRY
Plaintiff
p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
ALICK SOALO
Defendant
Mr. Ronald Warsal for the Plaintiff
Mr. Kiel Loughman for the defendant – no appearance
JUDGMENT
lass="Mss="MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The Applicant obtains judgment against the defendant for
the amount of VT66,80 on the 12th Apr> April 2001. By affidavit
of Loa Damena-Tepai, counsel for the plaintiff, dated the 16th
November 2001, the judgment remains unsatisfied. An Ex-Parte Summons was
made, seeking interim orders. On the 21st December 2001, the
Court made the following interim orders: -
class="MsoBoMsoBodyText2" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
2. & That unless
su cieficient cause be shown to the contrary before this Court on a date to be
fixed, the Defendant’eresthe
Pry shand itrdere that in the meantime it do, stand char charged wged with tith the pahe paymentyment of V of VT66,808,016
debt due on the said Judgment together with the costs of such application.”
On tharing, the Court is to satisfy, whether to
grant the order absolute or not.
The plaintiff’s counsel advance that the saving sion
is Order. 71 of The High Court (Civil Procedure)dure) Rules, 1964, which
give
jurisdiction to the Court to deal with charging order. Order 71 provides: -
“Where no provision is made by these Rules the
procedure,tice and forms in force fore for the time being in the High Court
of Justice in England shall, so far as they can be conveniently applied, be
in force in the High Court of the Western Pacific.”
p class="MsoN"MsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
lass="MsoNoMsoNormal" stylet-align: justify; margin-top: 1; margin-bottom: 1">
In Vanuatu, the High Court Rules did not provide for
process to be followed. And the plaintiff’s counsel nsel advance on Order
50 of
the Supreme Court Practice of 1979.
Order le (1), (3) and (4) states: -
“50 &nbssp; (b) &nnbp; &nnp;&nnbsp; The power to anke an orderorder under
Section 35 of the Administration of Justice Act,
1956 imposing a charge or int in of a ent d shall bell be exer exercisabcisable by the
Court.
>
lass="Mss="MsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom:
1">
(2) …an>
(3) ; An
l appiocation for afor an order under the said Section 35 may be made ex parte.
1">
<
(4) ;&nbssp; The appe applicatiication must be supported bted by an
affidavit-
ass="Mss="MsoBodyTextIndent2" style="text-indent: -36.0pt; margin-left: 144.0pt; margin-top: 1; margin-bottom: 1">
(a) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
Identifying the judgment or order to be enforced, and stating the name of
the judgment debtor on whose land or interest
isoughimpose a
ch charge arge and the amount remaining unpaid under the judgment or order at the
time of the application;
(b) &nbssp; &nbssp; &nbp;
p class="MsoBoMsoBodyTextIndent2" style="text-indent: -36.0pt; margin-left: 144.0pt; margin-top: 1; margin-bottom: 1">
(c) &&nsp;;&nspp;&nssp; &nbp;
Stating that to the best of the information or beli the ent t land or interest in question isjudgmebtor’s and statingating
the the
sour sources oces of the deponent’s information or the grounds for his belief.”
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Order 71 of the High Court Rules is the saving pron
to save and allow rules and procedure as applied ined in England before
30th
July 1980 to be applied in Vanuatu.
Article 95 of the Constitution authorized such
transitional period to take place. However, what are an Administration Act
in England before the 30th July 1980, and what the provisions are
like are beyond the knowledge of this Court to apply. And this is a
practicable
problem where England laws that to be applied in Vanuatu
pursuant to Article 95 at one end of the world and Vanuatu on the
other end.
In bringing the two closer to each other the Court Act Section 29 and
Article 45 of the Constitution will
give some help in addressing the
application for charging order.
<
The defendana judgment debtor, in that he owes money
to the plaintiff upon the judgment of 12 Apr2 April 2001. The lease property
is
under the name of Chief Nunu Naperik Mala. Chief Nunu Naperik Mala is also
known as Alick Soalo and the same person
none other than the defendant
himself. The plaintiff’s counsel also advances on section 14 of the Land
Leases Act. And the defendant does not dispute ownership. Section 14 of the
Land Lease Act [CAP. 163] states: -
“Subjecthe provisions of this Act, the
registration of a person as the proprietor of a leaselease shall vest in that
person
the leasehold interest described in the lease together with all
implied and expressed rights belonging thereto and subject
to all implied
and expressed agreements, liabilities and incidents of the lease.”
I find that the defendant is the solprietor over
land title No. 12/0632/002. He has not shown any good cause why such ordh orders
cannot be made against him.
The Court has jurisdiction under Order 71 of the High
Court Rules and Order 50 of the Supreme Court Practice 1979 to make charging
orders against a defendant or judgment debtor pursuant to the Administration
of Justice Act, applicable in England and
Vanuatu before independence and
continue to apply in Vanuatu unless, it is expressly revoked.
For these reasonsant the
orders sought with cost to the plaintiff to be taxed if not agreed.
an>
Dated at Port Vilis 26th day of February 2002.
<
R. MARUM MBE
JUDGE.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/cases/VUSC/2002/11.html
