National Bank of Solomon Islands Ltd v Kovara [2001] SBHC 69; HC-CC 153 of 2000 (21 September 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 253 of 2000

NATIONAL BANK OF SOLOMON ISLANDS LIMITED

v

High Court of Solomon Islands

Before: Frank O. Kabui, J

Civil Case No: 253 of 2000

Hearing: 21^st September 2001

Judgment: 21^st September 2001

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Mr. Levo for the Plaintiff

Defendant not present

JUDGMENT

(Ka J): The Plaintiff by Notice of Motion filed on 7^th September 200 2001, seeks the following Orders-

1. lang="EN-GB" stylestyle="letter-spacing: 0pt"> The Plaintiff have leave to enter judgment in default of

&nbs;&&nsp;&nbsp &nbsp appearance against the Defendant in the sum of

&nnbsp;; &nbs; &nbp; $11,861.07.

lass="MsoNormaNormal" style="margin-top: 1; margin-bottom: 1"> 2. The Plaintiff have leave to sell the Defendant’s Fixed

&nbsp &nbs; Term Estate in Parcel No. 191-006-57 by public tender;

3. &nb/spann lang="ang="EN-GB"N-GB" style="letter-spacing: 0pt">No tender is to be accepted without the further leave

&nbbsp;&&nsp;; sp; of a Judge in Chambers;

4. The Defendant, his servants, agents, invitees,

&nnbsp;; &nsp; sp; licensees or others entering parcel no. 191-006-57 under the authority of the Defendant be permanently

 p; &nsp; restrained from entering the same;

5. The Defendant pay the Plaintiffs cost of and in

connection with this application.

A judgment in default of appearance was entered against the Defendant by the Registrar on 8^th July 2001. Counsel for the Plaintiff, Mr. Levo, said he did not rely upon the default judgment as the service of the Plaintiff s Writ had not been indorsed under Order 9, rule 12 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). He said he would proceed as though no judgment in default of appearance had been entered against the Defendant. He sought an amendment to the Notice of Motion to achieve his stand on that issue. I granted his application. The amendment was that the words “in default of appearance” be inserted between the words “judgment” and “against” in paragraph 1 of the Notice of Motion. The Writ of Summons had been served upon the Defendant on 5^th August 2001 to which there had been no appearance. I do not think the approach taken by Mr. Levo was the correct one because the fact remained that the Writ had not been indorsed by the Plaintiff. The proper way to correct this irregularity was to apply for extension of time under Order 65, rule 5 of the High Court Rules. (see Hastings v Hurley [1881] UKLawRpCh 72; 16 Ch. D. 734 and Francis Saemala v Gordon Kiko Zinehite (Civil Case No. 162/2000). However, the case proceeded as intended by the Plaintiff. I would therefore grant the orders sought by the Plaintiff on that basis. I grant the orders accordingly. The matter of irregularity in the indorsement of the Writ is a matter for the Defendant to raise if he so wishes.

class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> F.O. Kabui

Judge