(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
rom that, I do not quite understand the difference in substance, if any,
between Orde 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 historicalts
origin. gin. 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 terdraft accounts operated by the 1st
DefenDefendant 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
ccount until payment. Wnt. 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
>
p class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
1.
&nbbsp; The Plaintiff have lave leave in default of appearance to enter
judgment herein against the First Defendant in the sum of SBD
305,585.33
together with interest theat the of er annum from 26 m 26 AprilApril
2000 up to and including date of
payment;
2. ;&nbssp;&nbs;&nbs; Thp; The Plaintiff
ve lave 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 suce;
3. p;&nbbsp;&nsp; Tsp; The Fist
Dant iant immediately deliver vacant possession of parcel Number 191-003-82
and
any of the other lands or assets e Firfenda the
Plaintiff.
>
clas class="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
5. &nbssp; The Pole Police
Comm 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. &nbbsp; The Dehe Defendants
pay the Plaintiff�s cost of and in connection with this action.
: 1">
< <
7. p;&nssp; Such furh furh further
or other relief as this Honourable Court may seem meet.
clas class="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In terms of Order 13, rule 11
of the High Court Rules, the judgment in dt of appearance entered on d 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 e more than one
chargcharge 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
er">
Judge
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