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High Court of Solomon Islands |
HIGH COURT OF SOLOMON OMON ISLANDS
Civil Case No. 155 of 1999
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SOLOMON ISLANDS NATIONAL PROVIDENT FUND
class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> v
PHILIP PANKRASIO MANISI
High Court of Solomon Islands
ore: Kabui, J
Civil Case No. 155 of 1999Hearing: 27th September, 1999
Judgment: 29th September, 1999
A. Rose for the Plaintiff
Defendant in Person
JUDGMENan>
(F.O. Kabui, J): Philip Pankrasio Manisi (the Defendant) borrowed the sum of $28,000 (the loan) from the National Provident Fund (the Plaintiff) on or about the 23rd July 1992 to purchase a residential building (the property) from the Solomon Islands Home Finance Corporation. The property is situated on Parcel Number 191-013-29 in Mbokona at Honiara. The loan was secured by the Plaintiff taking first charge over the property for the sum of $29,000 on 29th April 1992. The loan was for a period of 20 years. The loan repayment was to be by way of a monthly instalment of $338 to be paid on 22nd May 1992 and thereafter at the end of every month until the loan was fully repaid. However, the loan was rescheduled on 1st March 1995. The loan balance then was $30,061.53. The loan arrears stood at $3,420.00. The loan repayment instalment was then fixed at $280.00. Philip Pankrasio Manisi however did not keep up with his loan repayment. As at 31st March 1999, his principal loan balance stood at $31,717.54. The arrears then stood at $6,560.00 about 20 months instalments. Philip Pankrasio Manisi had fallen back into arrears and despite reminders from the Plaintiff. It is now the belief of Plaintiff that Philip Pankrasio Manisi would not now be able to repay his loan. By an Originating Summons filed on the 30th April 1999, the Plaintiff is now asking this Court to make a number of Orders the result of which will deprive Philip Pankrasio Manisi of the property. Philip Pankrasio Manisi does not dispute his indebtedness to the Plaintiff but says he had paid about $4,000 to the Plaintiff to reduce his arrears. This is admitted by Mr. Rose on behalf of the Plaintiff who says the only effect of this payment of the loan is that it reduced the arrears of $6,650.00 to $4,262.58 being 15� months instalments. The balance of the loan he says still stands at $27,988.24. Philip Pankrasio Manisi says he needs time to try and repay the loan. He however admits that he has great financial difficulty being unemployed since 1992 plus his obligation to meet the school fees of his three daughters. He says it would be disastrous for him if the property is sold by the Plaintiff. I cannot agree more with his remarks. I can see his problem as a father and the head of the family being in that position. However, the fact is that he has breached his promise to the Plaintiff to return its money with interest. He knew what his obligation was when he borrowed money from the Plaintiff in 1992 to purchase the property. The borrowed money is the property of the Plaintiff to be repaid under the loan agreement between him and the plaintiff. Whilst I have a lot of sympathy for Philip Pankrasio Manisi, I cannot really help him. The day of reckoning has come and he must now account for his breach of his contract with the Plaintiff. The Plaintiff has now come to this Court to enforce its rights under section 171 of the Lands & Titles Act (Cap. 133). This section states-
�1) A charge may be enforced upon application to the High Court, and not otherwise.
ass="rmal"e="text"text-inde-indent: -nt: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">(2)
Upon any such application, the Court may make an order -
(a) erpowethng har ce oreany oany other specified person to sell and transfer the interest charged, and providing for the manner in which the sale is to fecte the eds o saleied;>
(b) &nbbsp;& empowerpowering thng the chargee or any other specified person to enter on the land and act in all respects in the pand oalf of the owner of the interest for a specified period, and providing for for the athe application of any moneys received by him while so acting; or
(c) &nbssp; vestingsting the interest in the chargee or any other person either absolutely or upon such terms as it thfit, but such order shall, subject to subsection (5), not take effect until registratstration thereof:
Provided that no such order shall be made in respect of a person who is not a Solomon Islander.
an lang="EN-GB" style="font-size: 12.0pt; font-family: Times New Roman"> (3) ..............
(4) .........
(5) ........."
Cle in this case, the only way in which the Plaintiff would beld be able to recover its money from Philip Pankrasio Manisi is by way of sale of the property. This can be done under section 171(2)(a) above. However, the manner in which the sale is to be effected and how the proceeds of the sale are to be applied are matters to be stated in the Order made under section 171(2)(a) above. The normal practice however is that the mortgagee must give notice to the mortgagor before the sale is effected. However, this is not a requirement under the Lands & Titles Act nor under the charge instrument in this case. However, paragraph 9 of the affidavit sworn and filed by Mark Savi on 30th April 1999 does imply that a number of reminders or demands had been sent to Philip Pankrasio Manisi without any satisfactory responses from him. Unfortunately, these reminders or demands were not attached to his affidavit and so the terms of these reminders or demands would not be known. Whilst this omission is not fatal to the Plaintiff�s case, I think it is a good practice to produce to the court this evidence in the future to show that the chargor has been fairly treated in the process of selling his-or her property. Having said that, I must consider what orders I should make in this case. Although the Plaintiff has asked for a number of orders, I feel that I am restricted only to making orders specified in section 171 (2) of the Act plus order for costs. I am prepared to make the proposed order 1, 4 and 6 requested in the Plaintiff�s originating summons. I refuse to make the orders asked for in 2, 3 and 5. That is, I order that-
1. &nnbsp; The Plaintiff be at libertiberty to sell and transfer the property comprised in the charge, namely, Parcel No.013-2 in t aativet the land charge be enforced by foreclosure. This This is Oris Order der 1 in 1 in the Originating Summons.
2. ;&nbssp;&nbs;&nbs; &nbp; That tfendant deliver to t to the Plaintiff possession of the said property, namely, Parcel No. 191-013-29. This is Order 4 in the Originating Summons.
3. &nnbsp; &nbs; &nbhp; Thet trtipa meet thet their own costs. This is Order 6 in the Originating Summons.
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> I must say I am tempted to include in order 1 above terms for the manner in which sale is to be effected and the manner the proceeds of the sale is to be applied. The language of section 171(2)(a) of the Act is fairly wide to include imposing terms for the sale and how the proceeds of the sale are to be applied. However, I feel that such have not asked for by the Plaintiff and I would leave them as matters for chamber application at a later date.
F.O. Kabui
Judge>
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