National Bank of Solomon Islands v Attorney General [1997] SBHC 108; HCSI-CC 26 of 1997 (25 September 1997)

IN HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 26 of 1997

NATIONAL BANK OF SOLOMON ISLANDS

-v-

ATTORNEY GENERAL

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 26 of 1997

Hearing: 24 July 1997
Ruling: 25 September 1997

A. Radclyffe for Plaintiff
B. Titiulu for Defendant

Ruling

MURIA CJ: On 3 April 1997, the National Bank of Solomon Islands Limited (“the plaintiff”) obtained a judgment in default of defence against the defendant in the sum of $5,754,793.77 together with interest at the rates payable on government securities. The formal order on the judgment was signed on 4 April 1997.

The defendant has not paid the judgment debt up to the present moment and the plaintiff now brings this application to enforce the order granted in its favour. By its summons filed on 23 June 1997 the plaintiff seeks the following orders:

1. That the following land of the Defendant, namely the perpetual estates in parcels 266-001-3 and 266-001-2; the perpetual estate in parcel 019-001-30, 019-001-41 and 019- 001-1, LR146, LR 20; the perpetual estate in parcel 071-001- 17 (lot 17 of LR 516), the perpetual estates in parcels 097- 012-6, 097-019-7 be charged with the payment of the sum of $5,754,793.77 together with interest at the rates payable on government securities from 3 April 1997 until payment and fixed costs of $180.

2. That the costs of this application be met by the Defendant.

The defendant does not dispute that it owes the plaintiff the sum claimed together with interest. It simply says that it will pay when the money becomes available from the proceeds of the sale of the Government owned forest plantations situated in the parcels of land described in the summons. That suggestion is not accepted by the plaintiff and so seeks to enforce the judgment.

Mr. Titiulu argued that the Court must ensure that the provisions of section 151 and 160 of the Land and Titles Act must be observed if any of the defendant’s properties mentioned is to be charged in this case. I do not think those provisions have any relevance in the present proceedings which is to enforce a judgment obtained against the defendant who owns the properties in the parcels of land mentioned in the summons.

The question is, in my view, simply whether the Court should order the defendant’s properties to be charged or not. This turns on the consideration of the Rules of Court and other provisions of the law applicable in this situation.

I turn firstly, to the High Court (Civil Procedure) Rules, 1964. I have considered the provisions of the 1964 Rules in so far as they concern enforcement of judgment or orders against the crown and have observed that our High Court Rules is silent on the matter. However 0.71 provides as follows:

“Where no provision is made by these Rules the procedure, practice and forms in force 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 Solomon Islands.”

Thus it will be necessary to consider the provisions of the Rules applied in the High Court of Justice of England. Those Rules are known as the Rules of the Supreme Court and contained in what is sometimes referred to as the “White Book.” 0.41 c of the English Rules specifically provides that nothing in the Orders relating to EXECUTION (0.42), WRITS OF FIERI FACIAS AND SEQUESTRATION (0.43), ATTACHMENT (0.44), ATTACHMENT OF DEBTS (0.45), CHARGING ORDERS, DISTRINGAS AND STOP ORDERS (0.46), WRIT OF POSSESSION (0.47) AND WRIT OF DELIVERY (0.48) shall apply in respect of any order against the Crown. The above mentioned Orders 42, 43, 44 and 45 of the English Rules are equivalent to Orders 45, 46 47 and 48 respectively to our High Court Rules and Orders 47 and 48 of the English Rules are also equivalent respectively to Orders 49 and 50 our High Court Rules. There is no equivalent provisions under our Rules to 0.46 of the English Rules. There is also no equivalent under our Rules to 0.41 c of the English Rules. Guidance in this area of the practice of enforcing judgments against the Crown would therefore have to be sought from the English Rules of Court.

The plaintiff’s application in this case seeks to impose a charge on the various described parcels of land owned by the Government. While such an enforcement process is available against a judgment debtor it does not apply to the Crown. Order 41 c of the English Rules which applies here by virtue of 0.71 of our High Court Rules, does not permit such enforcement process against the Crown.

The position is even more affirmed when we turn to the Crown Proceedings Act (cap.7). Part IV of the Act makes provisions for Judgments and Execution affecting the Crown. Section 23(1) to (3) set out the manner in which orders against the Crown are to be enforced. As these provisions are important in these proceedings, I shall set them out in full:

“23. (1) Where in any civil proceedings by or against the Crown, or in any proceedings such as in England are taken on the Crown side of the Queen’s Bench Division of Her Majesty’s High Court of Justice, or in connection with any arbitration to which the Crown is a party, any order (including an order for costs) is made by any court in favour of any person or against an officer of the Crown as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate containing particulars of the order:

Provided that, if the court so directs, a separate certificate shall be issued in respect of the costs, if any, ordered to be paid to the applicant.

(2) A copy of any certificate issued under this section may be served by or on behalf of the person in whose favour the order is made upon the Attorney General.

(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accountant-General shall, subject as hereinafter provided, pay to the person entitled, or to his duly authorised representative, if any, the amount appearing by the certificate to be due to him together with the interest, if any lawfully due thereon.

Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable or any part thereof, shall be suspended, and if the certificate has not been issued may order any such directions to be inserted therein.”

Apart from what have been said in those provisions as to manner of enforcing orders against the Crown, subsection (4) specifically saves the Crown from any execution or attachment process. Subsection 4 provides:

“(4) Saves as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Crown, or any Government department, or any officer of the Crown as such, of any such money or costs.”

It thus become clear that no execution or attachment or process in the similar nature can be issued out of any Court for enforcing payment by the Crown of any money liable to be paid under an Order of the Court except as provided under the provisions of subsection (1) to (3) of section 23 of the Crown Proceedings Act.

It is argued by Mr. Radclyffe that charging order is not covered by subsection (4) of section 23 and that it is only a means to ensure payment of the money owning by the Government to the plaintiff out of the proceeds of the sale of the Government owned forest plantations. In this regard I feel it is necessary to note the words “execution or attachment or process in the nature thereof” which words denote the types of enforcement process from which the Crown is excluded.

While no specific reference is made of a charging order in subsection (4) of section 23 of the Act, the language used in that provision, in my judgment, covers a charging order which is one of the means of enforcing a judgment or an order of the Court. A charging order is a process in the nature of execution of a judgment or order and it is imposed on land or interest in land of the debtor so as to secure payment of money due under the judgment or order. That execution process cannot be used against the Crown as stated in subsection (4) of section 23.

As it will be observed the ordinary forms of execution do not apply against the Crown and therefore, the Government. The person in whose favour the order was made shall apply for a certificate after 21 days of the order being made against the Crown, showing particulars of the Order including the amount due. That Certificate must be served on the Attorney General and thereupon the Accountant General shall pay to the person entitled or his duly authorised representative, the amount specified in the certificate together with interest, if any, due on that amount. That is the practice permitted both under the Rules of Court and the Crown Proceedings Act.

The result therefore of these proceedings is that the order sought by the plaintiff in its summons cannot be made and the application must be refused.

(GJB Muria)
CHIEF JUSTICE