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THE ROLE OF THE SHERIFF IN ENFORCING A JUDGMENT

The Sheriff of the Supreme Court is an officer of the court responsible for undertaking certain necessary functions for the court. He is primarily an enforcement officer, that is, he is the person with the task of ensuring that certain orders and directions of the court are obeyed.

 

He is responsible for the following tasks:

  1. Serving Summonses
  2. Serving Warrants
  3. Serving Enforcement Orders
  4. Serving orders of the court
  5. Executing Warrants for seizure and sale of property
  6. Executing Warrants for eviction or removal of persons from land
  7. Executing Warrants for possession of land
  8. Executing Warrants of Arrest together with the police
  9. Serving any other court process ordered by the court

 

In this article we will deal specifically with the enforcement by the Sheriff of a warrant for seizure and sale of property under Rule 14.16-14.21 of the Civil Procedure Rules.

 

Once a Warrant in the correct form, signed by the Master or Judge is complete, that Warrant is then delivered by the Court to the Sheriff’s office. The Sheriff will make a note of the amount of time and the deadline within which he is to complete the seizure and sale. Unless the matter is of great urgency the Warrant will be placed in a queue, as Warrants are usually executed on the basis of first in first out.

 

Once the Sheriff is in a position to begin the execution process under the Warrant he must first conduct the necessary searches at the Registry of Lands if seizing land or Ministry of transportation if seizing a vehicle to make sure that the land or the vehicle is in fact registered in the name of the debtor. The Sheriff cannot seize any property unless it is owned by the debtor either legally or beneficially.

 

Legal ownershipmeans simply that the property is registered under the name of the debtor and beneficial ownershipmeans that though the property may not be registered in the name of the debtor there is evidence to show that the debtor has an interest in that property.

 

The only property which the Sheriff cannot seize is property deemed exempt or excluded under the Bankruptcy Laws of Vanuatu, e.g. personal items like clothes or items required for the debtor to work such as his toolbox if he is a carpenter. Items exempt from seizure may either be specified in the Warrant by the court or else the Sheriff will have to look to the Bankruptcy Act to know which items he is prevented from taking.

 

The Sheriff will serve a copy of the Warrant on the debtor personally and give him/her about 7 days to take any action before the process of seizure begins.

 

The method of seizure may vary depending on the rules in a country, but in Vanuatu a property is considered as seized by the Sheriff when he places a notice of seizure in a conspicuous place or highly visible spot on the actual property, such as a front door or large tree on the actual property.

 

If the Sheriff is seizing a vehicle he will often take the vehicle away and store it safely, usually on the court’s compound until the sale is complete.

 

Following the seizure, the Sheriff must decide on the date for the sale. Once he has set the date he must advertise the sale at least 2 to 4 weeks before the sale. The advertisement must be published in a newspaper in the area where the property is or broadcast the sale on the radio. The Sheriff must also make the advertisement available at the nearest court office and police station.

 

If the property is perishable, that is, will rot in a short time, e.g. food products, the Sheriff is not bound by the advertisement time line of 2-4 weeks. He may choose a much shorter period of advertisement.

 

Currently, all sales are done by public tender. That is, persons are invited to place a bid in writing to the Sheriff’s office for consideration by a certain deadline. Once the deadline is reached the bids will be considered by a panel of officers of the Supreme Court who will examine all the bids and will usually sell the property to the person who has made the highest bid. That person will then be notified in writing that they have been successful and will be asked to finalise payment by a certain date. Once that payment has been made to the Accounts office the Sheriff will ensure that a transfer of property is registered in the name of the purchaser as new owner. If the bidder chosen cannot pay the full amount within the time given by the panel then the panel will notify the person with the second highest bid.

 

The Sheriff is not bound to accept any bids or even the highest bid unless he is satisfied that the property has been “sold for the best obtainable price” [Rule 14.18(3) of the CPR 2002].In that case the Sheriff will decline all the bids and re-advertise the property for sale.

 

Once a bid is accepted the Sheriff must pay the proceeds of sale to the court and the court must deduct from the sale price the costs of enforcing the warrant which is 10% of the proceeds of  sale. Out of that balance the Sheriff’s office must pay over to the creditor the amount of the debt. Any remaining balance must be paid over to the debtor.

 

WHAT TO DO IF YOU ARE THE DEBTOR AND SERVED WITH A WARRANT TO SEIZE

 

If you have a lawyer then take the Warrant to him/her immediately to seek advice. Otherwise, you are bound to follow any instructions to you by the Sheriff acting on the authority of the court.

 

Once you are served with the Warrant you will have at least 7 days to remove yourself and your family and personal belongings off the property. While there are certain items you may take as they cannot be seized, if you take anything with you that is under seizure the sheriff has the right to retrieve those from you. If you want additional time to move you must make an urgent application with the court within those 7 days asking for extra time. This of course is not a guarantee that the court will give you the extra time especially as the court would be aware that you have likely had knowledge of the judgment and enforcement proceedings long before the actual Warrant was served on you.

 

If you have a valid reason why the sale should not be allowed to go through, e.g. you have an application to set aside the judgment or an appeal against the judgment before the court and you can show that any sale would prejudice you or cause financial hardship to you and your family if you are evicted and the property sold, you may make an application under CPR 14.20 to the court to postpone the sale. You may also make an application to the court if there is something irregular in the warrant such as the property is wrongly listed or the warrant is not addressed to an enforcement officer as defined under the rules, etc. If the court does not agree to postpone the sale the process under the Sheriff will continue to completion. If it is postponed it means that the Sheriff will be stopped by the court from doing anything further to sell the property until the court makes an order to continue.

 

As the debtor, you have the right, even though you owe a debt, to make enquiries as to the stage at which the enforcement process is and any steps the Sheriff is taking to ensure that he gets the best possible price for your property.

 

As we often warn in each article: DO NOT IGNORE ANY COURT PROCESS SERVED ON YOU. ACT IMMEDIATELY TO GET ADVICE FROM YOUR LAWYER OR FIND OUT WHAT STEPS YOU NEED TO TAKE FROM THE COURT OFFICE IF YOU REPRESENT YOURSELF.

 

 

DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.     

 

If you have any questions or require clarification on the above please contact the writers at vanuatulaw@gmail.comor contact us at website www.pawthelaw.info 

 

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