JUDGMENT
(Kabui, J.):
By Summons filed on
8th
May 2001, the Plaintiff seeks the following
Orders-
1. Defendants in the sum of SBD$47,308.59 together with interest thereon
at the rate of sixteen percent (16%) per annum from 30th
June 2000 up to and including the date of payment and
costs;
2
The Plaintiff have leave to sell by tender the Defendants' Fixed Term
Estate in Parcel Number 191-029-67 situated at West
Kola�a Ridge, Honiara;
3. The Plaintiff have leave to sell by tender the Defendants' Fixed Term
Estate in Parcel Number 191-029-67 situated at West Kola�a
Ridge, Honiara;
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4.
No tender is to be accepted without the further leave of a Judge in Chambers;
5n>. The Defendantsdants� immelyately deliver to the Plaintiff vacant
possession of the property in Parcel Number 191-029-67;
6.
The Defendants, their servants, agents, invitees, licensees or others entering the land in Parcel Number 191-029-67 under
the
Defendants� authority forthwith vacate the same and
forthwith remove all their chattels from the same;
7.
The
Defendants, their servants, agents, invitees,
licensees or others entering the land in Parcel Number
191-029-67
under the Defendant's authority be permanently
restrained from entering the said land;
8.
The Honiara City Police
Commander and all Policeolice Officers
under his direction forthwith upon receipt of
any
order
made pursuant to orders 4, 5 and 6
hereofshall
attend and enforce as
is reasonably
necessary for
such
purpose upon request by the
Plaintiff or its
solicitor;
ass="MsoNormaNormal" style="margin: 1pt 0cm">
9.
The
First Defendant pays the Plaintiffs costs of and
in
connection with this action including this application;
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10.
Such
further order or other order as this HonourableCourt
shall deem meet.
The Facts
The facts
in this case are set out in my interlocutory ruling dred yesterday 16th
July 2001. I do not wish to repeat them here.
The
Orders Sought
In this
case, the Plaintas invoked Order 14(1)(a) of the High Court (Civil
Pr Procedure) Rules 1964 (the High Court
Rules). Two requirements are amiss in
this application under this Order. The first is that neither the 1st
Defendant nor the 2nd Defendant had entered appearance to
the Plaintiffs Writ of Summons. The second is that no affidavit evidence had
been
filed stating that in the belief of the deponent,
the Defendants had no defence.
The affidavit filed by Mr. Ne�e on
8th
May 2001 only went as
far as stating the facts as verifying the cause of action and stating the
amount claimed. These
omissions do not in my view entitle the Plaintiff to
invoke Order 14(1)(a) of the High Court Rules. An attempt by the 1st
Defendant to allege defence in the Notice Motion filed on
18th
June 2001 was
dismissed by this Court yesterday in a ruling of that date. The Memorandum
of Appearance filed on 1st
June2001 by their Solicitor, Mrs. Tongarutu, was clearly out of time
and technically premature because the1st Defendant only received
a copy of the Writ of Summons and the Statement of claim on 6th
June 2001. Unfortunately, the 1st Defendant had not since the 6th
July 2001 filed a Memorandum of Appearance nor a Defence. In terms of
the procedure in Order 14(1)(a) of the High Court Rules,
the Plaintiff had
come to Court both erroneously and too early on
8th
May 2001. The
procedure under Order 13, rule 11 of the High Court Rules or under Order 29,
rule 13 of the High Court Rules
would have been the appropriate procedure in
this case in lieu of the procedure Order 14(1)(a) of the High Court Rules
after proper service of the Writ of Summons on 6th June 2001. Due
to errors in procedure committed by both parties, I would treat the
Plaintiff�s Summons as though it had
been filed under Order 13, rule 11 of
the High Court Rules. That is to say, leave for judgment is being sought to
be
entered against the 1st and 2nd Defendants in
default of appearance under Order 13, rule 11 of the High Court Rules. On
that basis I would grant the
Orders sought in the Plaintiffs Summons filed
on
8th
May 2001. The
Plaintiff�s application is therefore granted.
F. O. Kabui
Judge
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