National Bank of Solomon Islands Ltd v Kikilasa [1999] SBHC 141; HC-CC 199 of 1998 (29 October 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 199 of 1998

NATIONAL BANK OF SOLOMON ISLANDS LIMITED

–v-

CLEMENT STANLEY KIKILASA

High Court of Solomon Islands
(KABUI, J)

Hearing: 28^th October, 1999
Judgment: 29^th October, 1999

J. Katahanas for the Plaintiff
Defendant not present

JUDGMENT

(F.O. Kabui, J): By a Writ of Summons filed on 19^th October, 1998, the Plaintiff claims the sum of $75,347.09 plus interest at 18% per annum from 1^st September, 1998 until payment of the sum of $75,347.09. The Plaintiff also asks for an order for the sale of Parcel Number 171-001-284 (“the property”) and directions for sale of the property. The Writ of Summons was served upon the Defendant on 4^th November, 1998 at 2 pm at Auki in the Malaita Province. As a result of the Defendant failing to enter an appearance in response to the Writ of Summons, a judgment in default of appearance was entered against him on 14^th December, 1998. The Defendant has not so far done anything to set aside that default judgment. Generally, however a judgment in default of appearance entered against the Defendant for a debt or a liquidated sum is the final judgment.

Facts

The Plaintiff is the National Bank of Solomon Islands (the NBSI). Pursuant to an agreement between the NBSI and the Defendant on or about 5^th February, 1996, the NBSI agreed to lend and the Defendant agreed to borrow the sum of $80,000 at the interest rate of 16.25% variable at the discretion of the Plaintiff. The loan money was to be repaid by the Defendant by way of monthly instalments of $1,400.00. On or about 22^nd August, 1996, the Plaintiff registered a charge over the property as security for its loan to the Defendant. The Defendant has now failed to repay the loan money since about 3^rd September, 1998.

The Law and Conclusion

Clause 3 of the charge enables the Plaintiff to recover the loan money under the provisions of the Land and Titles Act (Cap. 133). Section 171 of the Land and Titles Act states –

“(1) A charge may be enforced upon application to the High Court, and not otherwise.

(2) Upon any such application, the Court may make an order –

• (a) empowering the chargee or any other specified person to sell and transfer the interest charged, and providing for the manner in which the sale is to be effected and the proceeds of the sale applied;
  
• (b) empowering the chargee or any other specified person to enter on the land and act in all respects in the place and on behalf of the owner of the interest for a specified period, and providing for the application of any moneys received by him while so acting or;
  
• (c) vesting the interest in the chargee or any other person either absolutely or upon such terms as it thinks fit, but such order shall, subject to subsection (5), not take effect until registration thereof:
  

Provided that no such order shall be made in respect of a person who is not a Solomon Islander.

(3) .............................
(4) .............................
(5) .............................”

Clearly, the Plaintiff’s Motion filed on 27^th July, 1999 is an application under section 171 above to enforce the charge against the property in this case. I do not see any reason why I should refuse the Plaintiff’s application. I therefore grant the Plaintiff’s application and the orders sought in the Plaintiff’s Notice of Motion. Section 171(2) of the Land and Titles Act is wide enough to include orders for sale of the property and the manner in which the property is to be sold. I order accordingly.

F.O. Kabui
Judge