National Bank of Solomon Islands Ltd v Wyatt [2000] SBHC 93; HCSI-CC 051 of 2000 (12 May 2000)

CC 051/2000 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 051 of 2000

NATIONAL BANK OF SOLOMON ISLANDS LIMITED

V

PETER WYATT

High Court of Solomon Islands
(Palmer)

Civil Case No 051 of 2000

Hearing: 8th May 2000
Ruling: 12th May 2000

A & H lawyers for the Applicant/Defendant
B. Titiulu for the Respondent/Plaintiff

PALMER J.: On 7th April 2000, this Court made interim orders, for the payment of part of the Contributions of the Defendant with Solomon Islands National Provident Fund (hereinafter referred to as “the NPF Contributions”), the amount in dispute ($59,000.00), into an interest bearing deposit account in the names of the Solicitors for both parties. This order was made pursuant to Order 53 of the High Court (Civil Procedure) Rules, 1964 (“High Court Rules”), under an ex parte application flied and heard on 7th April 2000. The Statement of Claim filed with Writ of Summons on 24th February 2000, disclosed that the claim of the Plaintiff originated from its contract of employment with the Defendant dated 12th March 1996 (hereinafter referred to as “the Employment Contract”). Paragraph 6 of the Statement of Claim pleaded it was a term of the contract that “either the Plaintiff or the Defendant obtain exemption from the Solomon Islands National Provident Fund Board (“NPF Board”) so that the Plaintiff continue to pay contributions to the Commonwealth Bank Officer’s Superannuation Fund in Australia (‘Superannuation Fund’).” The NPF Board declined to grant exemption (see paragraph 8 of the Statement of Claim). This meant NPF Contributions were required to be paid in respect of the Defendant under the Solomon Islands National Provident Fund Act (Cap. 109) (“NPF Act”), during his period of employment with the Plaintiff. This consisted of 7.5% of the Plaintiff’s contribution to NPF, in respect of the Defendant’s basic salary and 5% of the Defendant’s contribution to NPF, in respect of the Defendants basic salary. The Defendant was a resident of Australia and only came to do work with the Plaintiff for a period of three years. Having failed to obtain exemption from NPF, this meant too that the Plaintiff thereby was not obliged to pay contributions towards the Defendant’s Superannuation Fund. Unfortunately for the Plaintiff, exemptions sought from NPF were not communicated to it until well after the total contributions of AUD3, 788. 39 due to the Defendant’s Superannuation Fund had already been paid.

On 2nd September 1999, NPF filed Writ of Summons and Statement of Claim against the Plaintiff in Civil Case No. 286 of 1999, in which the amount of SBD114,969.16 was claimed as contributions due and payable to NPF in respect of the Defendant. This comprised the amount of SBD68,981.49 being 7.5% of the Plaintiff’s contribution as employer, and SBD45,987.67 being 5% of the Defendant’s contribution from his salary. Judgment was entered against the Plaintiff on 10th November 1999 and payment of said sum duly made on 2nd February 2000. The problem which arose from these transactions was that the Defendant had already left the employ of the Plaintiff on or about 25th April 1999. This meant the Plaintiff was faced with the problem of recovering the 5% contribution due from the Defendant’s salary which it ought to have deducted, but did not during the period of employment from 1st May 1996 to 25th April 1999. In addition, the Plaintiff sought to recover the amount of AUD3, 788.39 wrongly paid into the Superannuation Fund of the Defendant. On or about 17 November 1999, the Plaintiff made demands for the Defendant to repay the sum of $45,987.67 and AUD3, 788.39 but to no avail. The Plaintiff accordingly commenced Writ action against the Defendant for the recovery of those sums.

The problem Plaintiff faces in the pursuit of its claims is that the Defendant is no longer resident in the country and that his only means of assets in the country are his NPF contributions. At paragraph 8 of his affidavit, Billy Titiulu deposes that he has reason to believe that the NPF contributions of the Defendant are due to be paid out shortly. It was in the light of those circumstances that the ex parte application was lodged for purposes of requiring the amount in dispute to be paid into Court under Order 53 Rule 1 of the High Court (Civil Procedure) Rules, 1964.

The Defendant however now comes to Court, seeking orders inter alia, for the order dated 7th April 2000 requiring payment of the sum of $59,000.00 of the NPF Contributions of the Defendant into an interest bearing deposit account to be set aside or discharged. The ground relied on is that this may be contrary to section 35 of the NPF Act.

The application in my respectful view should be viewed as an inter partes hearing on whether the interim orders should be continued or not.

It is not in issue this Court has jurisdiction to make orders for the payment of the amount in dispute under Order 53 Rule 1 of the High Court (Civil Procedure) Rules, 1964. The issue for determination in this application is whether section 35(1) of the NPF Act expressly excludes the general jurisdiction of this Court to make any orders attaching part of the NPF Contributions of the Defendant; including any interim orders. Section 35(1) of the NPF Act reads:

“Subject to subsections (2) and (3), no contribution to the Fund, nor any amount standing to the credit of a member in the Fund nor interest on any such contribution or amount, nor withdrawals made by the authority of the Board from the Fund under section 28, nor the rights of any member of the Fund acquired thereunder, shall be assignable or transferable or liable to be attached, or sequestrated or levied upon for or in respect of any debt or claim whatsoever.”

Subsection 35(1) cannot be any clearer. It seeks to exclude the contributions of any member of the Fund from being “attached, ... sequestrated or levied upon for or in respect of any debt or claim whatsoever”. As correctly submitted by learned Counsel for the Defendant, that must include any interlocutory orders seeking to restrain the payment of those contributions in respect of this action. I have also considered carefully the question whether section 35(1) of the NPF Act could be construed as limiting the jurisdiction of this Court as provided for under section 77(1) of the Constitution and thereby must be read as subordinate to the “unlimited original jurisdiction” of this Court, though this was not raised by learned Counsels in the hearing before me. Similar arguments were raised in Gandly Simbe v Eagon Resources Development Company Limited & Others Appeal Case No.8 of 1997 (Court of Appeal) judgment delivered on 21st October 1998. It was argued in that case that section 231(1) of the Land and Titles Act (Cap. 93) had the effect of limiting the unlimited original jurisdiction of the High Court from dealing with disputes relating to customary land and confining it to the Local Courts and the Customary Land Appeal Courts and thereby contrary to section 77(1) of the Constitution. The Solomon Islands Court of Appeal was not convinced with this argument. It cited section 75(1) of the Constitution which gave Parliament the power to make provision for the application of laws, including customary laws, as giving exclusive powers to the Local Courts to deal with questions of ownership over customary land. The Court of Appeal held section 75(1) of the Constitution gave Parliament an independent head of legislative power which is equal to the power conferred on the High Court under section 77(1) of the Constitution. In my respectful view the same reasoning would apply to section 35(1) of the NPF Act and thereby preserving its validity as a legislative power conferred by Parliament pursuant to section 75(1) of the Constitution.

It has not been disputed there are triable issues raised in the claim of the Plaintiff for consideration before this Court. This action accordingly should proceed in the normal way to trial. I am satisfied however, the interim order imposed by this Court on 7th April must be discharged forthwith. I note, what this virtually means is that, the remaining assets of the Defendant will be removed out of the jurisdiction of this Court. That however is no impediment to the hearing of this action. If the Plaintiff should win its case at the end of the day and Defendant refuses to pay up, it can always seek to have its judgment registered with the courts in Australia and take enforcement action against the Defendant there.

ORDER OF THE COURT.

1. SET ASIDE ORDERS OF THIS COURT DATED 7TH APRIL 2000 FORTHWITH.

2. DEFENDANT TO HAVE HIS COSTS OF THIS APPLICATION.

THE COURT