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Berry v Soalo [2002] VUSC 11; Civil Case 071 of 2000 (26 February 2002)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.71 of 2000

BETWEEN:

NOEL BERRY

Plaintiff

AND:

ALICK SOALO

Defendant

Mr. Ronald Warsal for the Plaintiff

Mr. Kiel Loughman for the defendant – no appearance

JUDGMENT

The Applicant obtains judgment against the defendant for the amount of VT66,808,016 on the 12^th April 2001. By affidavit of Loa Damena-Tepai, counsel for the plaintiff, dated the 16^th November 2001, the judgment remains unsatisfied. An Ex-Parte Summons was made, seeking interim orders. On the 21^st December 2001, the Court made the following interim orders: -

“1. That the nisi is granted for the Defendant’s interest in Lease title No. 12/0643/002 (“the property”) be charged to the favor of the Plaintiff until the payment of VT66,808,016 debt due on the said Judgment of this court dated 12^th April 2001.

2. That unless sufficient cause be shown to the contrary before this Court on a date to be fixed, the Defendant’s interest in the Property shall, and it is ordered that in the meantime it do, stand charged with the payment of VT66,808,016 debt due on the said Judgment together with the costs of such application.”

On this hearing, the Court is to satisfy, whether to grant the order absolute or not.

The plaintiff’s counsel advance that the saving provision is Order. 71 of The High Court (Civil Procedure) Rules, 1964, which give jurisdiction to the Court to deal with charging order. Order 71 provides: -

“Where no provision is made by these Rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the High Court of the Western Pacific.”

In Vanuatu, the High Court Rules did not provide for such process to be followed. And the plaintiff’s counsel advance on Order 50 of the Supreme Court Practice of 1979.

Order 50 Rule (1), (3) and (4) states: -

“50 (1) The power to make an order under Section 35 of the Administration of Justice Act, 1956 imposing a charge on land or interest in land of a judgment debtor shall be exercisable by the Court.

(2) …

(3) An application for an order under the said Section 35 may be made ex parte.

(4) The application must be supported by an affidavit-

(a) Identifying the judgment or order to be enforced, and stating the name of the judgment debtor on whose land or interest it is sought to impose a charge and the amount remaining unpaid under the judgment or order at the time of the application;

(b) Specifying the land on which, or an interest in which, it is sought to impose a charge; and

(c) Stating that to the best of the information or belief of the deponent the land or interest in question is the judgment debtor’s and stating the sources of the deponent’s information or the grounds for his belief.”

Order 71 of the High Court Rules is the saving provision to save and allow rules and procedure as applied in England before 30^th July 1980 to be applied in Vanuatu.

Article 95 of the Constitution authorized such transitional period to take place. However, what are an Administration Act in England before the 30^th July 1980, and what the provisions are like are beyond the knowledge of this Court to apply. And this is a practicable problem where England laws that to be applied in Vanuatu pursuant to Article 95 at one end of the world and Vanuatu on the other end. In bringing the two closer to each other the Court Act Section 29 and Article 45 of the Constitution will give some help in addressing the application for charging order.

The defendant is a judgment debtor, in that he owes money to the plaintiff upon the judgment of 12 April 2001. The lease property is under the name of Chief Nunu Naperik Mala. Chief Nunu Naperik Mala is also known as Alick Soalo and the same person none other than the defendant himself. The plaintiff’s counsel also advances on section 14 of the Land Leases Act. And the defendant does not dispute ownership. Section 14 of the Land Lease Act [CAP. 163] states: -

“Subject to the provisions of this Act, the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease together with all implied and expressed rights belonging thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.”

I find that the defendant is the sole proprietor over land title No. 12/0632/002. He has not shown any good cause why such orders cannot be made against him.

The Court has jurisdiction under Order 71 of the High Court Rules and Order 50 of the Supreme Court Practice 1979 to make charging orders against a defendant or judgment debtor pursuant to the Administration of Justice Act, applicable in England and Vanuatu before independence and continue to apply in Vanuatu unless, it is expressly revoked.

For these reasons I grant the orders sought with cost to the plaintiff to be taxed if not agreed.

Dated at Port Vila, this 26th day of February 2002.

R. MARUM MBE

JUDGE.

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