Development Bank of Solomon Islands v Betu [2001] SBHC 44; HC-CC 203 of 2000 (16 July 2001)

Civil Case No: 203 of 2000

(DBSI)

v

DAISY BETU & BROWNLESS ZAKU ZAKU

High Cou Solomon Islands

Before: Frank O. Kabui, J

Civil Case No: 203 of 2000

Hearing: 16^th July 2001

Ruling: 16^th July 2001

Mr. G. Gale for the Plaintiff's

Mrs. A. Tongarutu for the Defendant's

RULING

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ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> (Kabui, J): By Notice of Motion, filed on 18^th June 2001 the 1^st Defendant seeks the following Orders –

1. &nbs n>Leave be granted to the Defendants for Enlargement ofnt of time toan>

&nbbsp; file Statement of (Defence.

2. &nbsp Such other Orders as the Court thinks fit.

3. & Costs.

The brief facts are these. The Plaintiff (the DBSI) fi Writ of Summons and a Stat Statement of Claim on 18^th August 2000, claiming the payment of the sum of $47,308.59 with interest as from 30^th June 2000, sale of Parcel No. 191 - 029 - 67 and costs. The 1^st Defendant on 21^st May 1997, borrowed the sum of $33,800.00 from the Plaintiff under a loan agreement. The loan interest was 16% per annum. The repayment monthly instalments was $1,812.00 for a period of 2 years.

Parcel No. 191 - 029 67 is jointly owned by the 1^st and 2 D Defendant. This property became the security for this loan. A charge was registered over it in favour of the Plaintiff.

> In the meantime, the 1^st Defendant has failed to repay the loan despite written demands from the Plaintiff.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Service ofWrit of Summons

The Writ of Summons was sent to the Defendants by registered mail on 22^nd February 2001. The respective receipts are 1567 and 1568. The Plaintiff’s action was fixed for hearing at 9:30 a.m. on 28^th May 2001. I adjourned the hearing to allow both the 1^st and 2^nd Defendants to appear together in Court, as they are joint owners of Parcel No. 191 - 029 - 67. on behalf of the 1^st and >nd Defendafendants on 1^St June 2001. The on 7^th June 2001. On 5^th May 2001, Ss for hearing filed on the Solicitors acting for the 1^st and 2^nd Defendants.

In this jurisdiction, Order 9 of the High Court (Civil Procedures) Rules 1964 (the High Court Rules) governs service of documents such as notice, summons, order or other document. Rule 2 of Order 9 above governs service of Writ of Summons. This Rule states

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..."2. When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service is now made, but it be made to appear to the Court that the plaintiff is from any cause unable to effect prompt personal service, the Court may make such order for substituted or other service, or for the substitution for service of notice, by advertisement or otherwise, as may be just”...

In this case, I can see no order of the Court as to substitute service or other service etc. Service by registered mail effected on or about 22^nd February 2001 had not been sanctioned by the Court under Order 9, rule 2 above of the high Court Rules. The effect of this omission on the part of the Plaintiff is that the 1^st Defendant was served at the time she received a copy of the Writ of Summons on or about 6^th June 2001. Since the 1^st Defendant and the 2^nd Defendant could not possibly enter an appearance until served with the Writ of Summons, appearance should be entered 14 days for 6ht June 2001. In this case, it should have been done by 19^th June 2001. Defence should have been delivered on 3^rd July 2001. Time for delivery of defence has now lapsed, in this respect, I am fully aware of Order 64, rule 5 of the High Court Rules which permit extension of time in appropriate cases. There is unfortunately, no evidence in this case to explain why there was a delay in delivery of the defence. There is also no evidence that the 1^st Defendant and 2^nd Defendant had requested extension of time by consent under rule 6 of Order 64 above. Extension of time is not a right to be automatically given at all times without evidence to explain the reasons for the delay to deliver defence. The 1^st and 2^nd Defendant did not also indicate in evidence what their defence was in this case, I cannot extend time for the sake of doing it and allow the 1^st and 2^nd Defendant’s to fish for a defence that they do not already have. I would dismiss the application with costs. The application is dismissed accordingly. The Court will now hear the Plaintiff’s Summons at 2:00 p.m. on Tuesday 17^th July 2001.

F. O. Kabui

Judge