HIGH
COURT OF SOLOMON ISLANDS
Civil
Case No.
253 of 2000
NATIONAL BANK OF SOLOMON ISLANDS LIMITED
v
High
Court of Solomon Islands
Before:
Frank O. Kabui, J
Civil
Case No: 253 of 2000
Hearing:
21st September 2001
Judgment:
21st September 2001
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Mr. Levo
for the Plaintiff
Defendant
not present
JUDGMENT
(Ka
J): The Plaintiff by Notice of Motion filed on 7th September
200 2001, seeks the following Orders-
1. lang="EN-GB" stylestyle="letter-spacing: 0pt">
The Plaintiff have leave to enter judgment in default of
&nbs;&&nsp;   
appearance against the
Defendant in the sum of
&nnbsp;; &nbs; &nbp;
$11,861.07.
lass="MsoNormaNormal" style="margin-top: 1; margin-bottom: 1">
2.
The Plaintiff have leave to sell the Defendant�s Fixed
  &nbs;
Term Estate in Parcel No. 191-006-57 by public tender;
3. &nb/spann lang="ang="EN-GB"N-GB" style="letter-spacing: 0pt">No tender is
to be accepted without the further leave
&nbbsp;&&nsp;;
sp;
of a Judge in Chambers;
4.
The Defendant, his servants, agents, invitees,
&nnbsp;; &nsp;
sp;
licensees or others
entering parcel no. 191-006-57
under the authority of
the Defendant be permanently
p; &nsp;
restrained from
entering the same;
5.
The Defendant pay the Plaintiffs cost of and in
connection with this
application.
A
judgment in default of appearance was entered against the Defendant by the
Registrar on
8th
July 2001. Counsel for the Plaintiff, Mr. Levo, said he did not rely upon
the default judgment as the service of the Plaintiff
s Writ had not been
indorsed under Order 9, rule 12 of the High Court (Civil Procedure) Rules
1964 (the High Court Rules).
He said he would proceed as though no judgment
in
default
of appearance had been entered against the Defendant. He sought an amendment
to the Notice of Motion to achieve
his stand on that issue. I granted his
application. The amendment was that the words �in default of appearance� be
inserted
between the words �judgment� and �against� in paragraph 1 of the
Notice of Motion. The Writ of Summons had been served upon
the Defendant on
5th August 2001 to which there had been no appearance. I do not
think the approach taken by Mr. Levo was the correct one because
the fact
remained that the Writ had not been indorsed by the Plaintiff. The proper
way to correct this irregularity was
to apply for extension of time under
Order 65, rule 5 of the High Court Rules. (see
Hastings
v Hurley
[1881] UKLawRpCh 72; 16 Ch. D. 734 and Francis Saemala v Gordon Kiko Zinehite (Civil Case
No. 162/2000). However, the case proceeded as intended by the Plaintiff. I
would therefore grant the orders
sought by the Plaintiff on that basis. I
grant the orders accordingly. The matter of irregularity in the indorsement
of the Writ is a matter for the Defendant to raise if he so wishes.
class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
F.O.
Kabui
Judge
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