Kololeana Development Company Ltd v Amiki [2006] SBHC 147; HCSI-CC 83 of 1998 (12 May 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 83 of 1998

KOLOLEANA DEVELOPMENT COMPANY
LIMITED AND MEGA CORPORATION LIMITED

V

OLUPATI AMIKI
AND OTHERS

Date of Hearing: 4th May 2006
Date of Judgement: 12th May 2006

D. McQuire for the Second Plaintiff
C. Ashley for the Defendants

Palmer CJ.: This is a summons of Mega Corporation Limited to stay or set aside execution of the Writ of Possession filed 9 March 2006. It appears the Defendants sought to recover possession of the fixed-term estate in Parcel 192-010-110 ("the Land") in order to have it re-sold to recover a judgement debt of some SBD7,534,649.94.

The Writ of Possession was filed and served on Mega Corporation Limited on 15 March 2006. That application however is misdirected as this was not an application for recovery of land but recovery of a judgement sum. The appropriate course would be for the issue of a Writ of Sequestration[1] for attachment of the Land under rule 7 of the High Court (Civil Procedure) Rules, 1964 ("the Rules"). Thereafter the Land may be sold[2] to recover the judgement debt or such amount as may be recovered. It is clear this step has not been done. The issue of the Writ of Possession therefore was premature and ought to be set aside. In any event there is clear evidence before me that prior to the issue of the Writ of Possession the Land had been transferred[3] to a third Party, Maximus Limited and accordingly the issue was also irregular as there is no evidence to show that Maximus Limited had received notice of the proceedings and leave ought not to have been issued.

Orders of the Court:

1. Set aside execution of the Writ of Possession filed on 9 March 2006 and served on Mega Corporation Limited on 15 March 2006.
2. In any event, no order for costs.
   

The Court.

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^[1] Order 46 rule 2 of the High Court (Civil Procedure) Rules, 1964
^[2] Rule 12 of the Rules.
^[3] See affidavit of Yii Ging Hii filed 23 March 2006 and Exhibits “YGH1” “YGH2” “YGH3”“YGH4”. Also note a consent for the transfer was made on 14^th February 2006 and the Land registered on 24^th February 2006.