National Bank of Solomon Islands Ltd v Kairoronga [2001] SBHC 20; HC-CC 114 of 2000 (12 April 2001)

HIGH COURT OF SOLOMON ISLANDS

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Civil Case No. 114 of 2000

NATIONAL BANK OF SOLOMON ISLANDS

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JOSEPH KAIRORONGA

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Before: F. O. Kabui, J

Civil Case No. 114 of 2000

Hearing: sup>th April, 2001

Judgment: 12^th April, 2001

B. Titiulu for the Plaintiff

Defendant not present

JUDGMENT

(Kabui, J.): This is an application by the Plaintiff by Notice of Motion filed on 2nd February,2001. The Notice of Motion seeks the following orders –

1.  p; Leo enter judgment ment ment in default of appearance;

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2. &nbs; The Plaintiff have lea selo sell the Fixed Term Estate in Parcel No. 097-005-145 by tender;

3. nbsp; o Ndetento be accepted without the fr lea a Jun Chambers;><

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4. &nbp; The Defendant immediadelivdeliver vacant possession of Parcel No. 097-005-145 to the Plaintiff,

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5. &nbsp &nbssp;&nThp; The Defendantndant, his servants, agents, invitees, licensees or others entering Parcel No. 097-005-145 under the authority of the Defendant forthwith vacate same and forthwith remove all their chattels from same;

6. &nbs; &nbbsp;& Thp; The Defendantndant, his servants, agents, invitees, licensees or others entering parcel No. 097-005-145, under the authority of the Defendant be permanently restrained fnterie same;>

7. &nbbsp; bsp; Thp; The Defendant pey the Plaintiffs cost of and in connection with this application

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The Noti Motion was served on the Defendant on 1st March, 2001 at 1 at 10:00 a.m. at Gizo in the Western Province. The service was effected personally upon the Defendant by one Michael Kahamana, an employee of the Plaintiff at the Gizo Branch. The service of the Notice of Hearing was also effected by that same Michael Kahamana upon the Defendant personally at Gizo in the Western Province. The date was 9^th April, 2001 and the time was 4:15 pm.

The Facts

By an agreement dated 12^th August, 1993, the Plff granted an overdraft fact facility of $50,000 to the Defendant. The term of this overdraft was that the Defendant would repay the loan with the interest rate of 15.75% per annum. A charge was registered over Parcel No. 097-005-145 situated at Gizo as security for the repayment of the loan.

By 2^nd September, 1998, the Defendant'sdraft facility had increased to $56,047.67 and the Pl Plaintiff demanded full repayment of the loan. By 11^th April, 2000, the amount outstanding came down to $45,471.21 by which time the interest rate was increased to 18% per annum as a penalty interest rate. The Plaintiff now seek to enforce the registered charge over Parcel No. 097-005-145 against the Defendant.

Relief Sought

As is always the case, the plaintiff is entitled to en a charge under section 171n 171(1) of the Land and Titles Act (Cap. 133). By section 171(2) of the Act, the Court is empowered to order, amongst other things, the sale of the interest charge to satisfy the chargee’s debt. The Plaintiff is in fact asking the Court to exercise its power under section 171 of the Act above. I am satisfied that this is a case where the plaintiff is entitled have a judgment in its favour. In exercising my power under Order 13, rule 11 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules), I grant leave for judgment to be entered against the Defendant in default of appearance. I would disregard the judgment entered in default of appearance signed by the Registry on 9^th July, 2000 as being unprocedural in terms of Order 13, rule 6 of the High Court Rules. The Orders sought in the Plaintiffs Notice of Motion are thereby granted.

Judge