Development Bank of Solomon Islands v Betu [2001] SBHC 46; HC-CC 203 of 2000 (17 July 2001)

HIGH COURT OF SOLOMON ISLANDS

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Civil Case No.203 of 2000

<DEVELOPMENT BANK OF SOLOMON ISL ISLANDS (DBSI)

v

DAISY BETU & BROWNLESS ZAKU

High Court of Solomon Is

Before: Frank O. Kabui J.

Civil Case No: 203 of 2000

Hearing: 17 July 2001

Judgment: 17^th July 2001

Mr. G. Gale for the Plaintiffs

1^st & 2^nd Defendant not in Court

JUDGMENT

(Kabui, J.): By Summons filed on 8^th May 2001, the Plaintiff seeks the following

Orders-

1. Defendants in the sum of SBD$47,308.59 together with interest thereon at the rate of sixteen percent (16%) per annum from 30^th June 2000 up to and including the date of payment and costs;

2 The Plaintiff have leave to sell by tender the Defendants' Fixed Term Estate in Parcel Number 191-029-67 situated at West Kola’a Ridge, Honiara;

3. The Plaintiff have leave to sell by tender the Defendants' Fixed Term Estate in Parcel Number 191-029-67 situated at West Kola’a Ridge, Honiara;

p class="MsoNormaNormal" style="margin-top: 1; margin-bottom: 1"> 4. No tender is to be accepted without the further leave of a Judge in Chambers;

5n>. The Defendantsdants’ immelyately deliver to the Plaintiff vacant possession of the property in Parcel Number 191-029-67;

6. The Defendants, their servants, agents, invitees, licensees or others entering the land in Parcel Number 191-029-67 under the Defendants’ authority forthwith vacate the same and forthwith remove all their chattels from the same;

7. The Defendants, their servants, agents, invitees, licensees or others entering the land in Parcel Number 191-029-67 under the Defendant's authority be permanently restrained from entering the said land;

8. The Honiara City Police Commander and all Policeolice Officers under his direction forthwith upon receipt of any order made pursuant to orders 4, 5 and 6 hereofshall attend and enforce as is reasonably necessary for such purpose upon request by the Plaintiff or its solicitor;

ass="MsoNormaNormal" style="margin: 1pt 0cm"> 9. The First Defendant pays the Plaintiffs costs of and in connection with this action including this application;

p class="MsoNormaNormal" style="margin: 1 0cm"> 10. Such further order or other order as this HonourableCourt shall deem meet.

The Facts

The facts in this case are set out in my interlocutory ruling dred yesterday 16^{th July 2001. I do not wish to repeat them here.}

The Orders Sought

In this case, the Plaintas invoked Order 14(1)(a) of the High Court (Civil Pr Procedure) Rules 1964 (the High Court Rules). Two requirements are amiss in this application under this Order. The first is that neither the 1^st Defendant nor the 2^nd Defendant had entered appearance to the Plaintiffs Writ of Summons. The second is that no affidavit evidence had been filed stating that in the belief of the deponent, the Defendants had no defence. The affidavit filed by Mr. Ne’e on 8^th May 2001 only went as far as stating the facts as verifying the cause of action and stating the amount claimed. These omissions do not in my view entitle the Plaintiff to invoke Order 14(1)(a) of the High Court Rules. An attempt by the 1^st Defendant to allege defence in the Notice Motion filed on 18^th June 2001 was dismissed by this Court yesterday in a ruling of that date. The Memorandum of Appearance filed on 1^st June2001 by their Solicitor, Mrs. Tongarutu, was clearly out of time and technically premature because the1^st Defendant only received a copy of the Writ of Summons and the Statement of claim on 6^th June 2001. Unfortunately, the 1^st Defendant had not since the 6^th July 2001 filed a Memorandum of Appearance nor a Defence. In terms of the procedure in Order 14(1)(a) of the High Court Rules, the Plaintiff had come to Court both erroneously and too early on 8^th May 2001. The procedure under Order 13, rule 11 of the High Court Rules or under Order 29, rule 13 of the High Court Rules would have been the appropriate procedure in this case in lieu of the procedure Order 14(1)(a) of the High Court Rules after proper service of the Writ of Summons on 6^th June 2001. Due to errors in procedure committed by both parties, I would treat the Plaintiff’s Summons as though it had been filed under Order 13, rule 11 of the High Court Rules. That is to say, leave for judgment is being sought to be entered against the 1^st and 2^nd Defendants in default of appearance under Order 13, rule 11 of the High Court Rules. On that basis I would grant the Orders sought in the Plaintiffs Summons filed on 8^th May 2001. The Plaintiff’s application is therefore granted.

F. O. Kabui

Judge