Indu v Sipisoa [1997] SBHC 34; HC-CC 340 of 1995 (24 June 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 340 of 1995

ter">ALVIN INDU & PETER TAFEA NEE

-v-

JACK SIPISOA

Befoalmer lmer J

Hearing: 28th May, 1997 - Judgment: 24th June, 1997

Counsel: C. Solosaia for the Plaintiff; Defendant (no appearance)

>

By writ and statement of claim filed on 3rd November, 1995, the Plaintiffs claimed inter alia, damages for economic loss suffered as a result of direct interferences, caused by the Defendant to their property, in Parcel No. 171-002-18, LR 944, located south of Auki town. The Plaintiffs together with Wilson Ne'e were the registered joint owners of the Perpetual Estate in that property.

On 13th May, 1997, an application for judgment in default against the Defendant came before this Court. The Defendant did. not attend. However his son attended and requested an adjournment to enable his father to attend. The matter was adjourned accordingly to 15th May, 1997. On the said date the Defendant again did not attend. His son and a spokesman attended and again asked for an adjournment to enable the Defendant to obtain the services of a lawyer. The application was granted and a further and final adjournment was made for 28th May, 1997. On the said date, the Defendant yet again did not appear. The matter was proceeded with and judgment entered against the Defendant. The question of damages for economic loss however was reserved by this Court. I will now address this issue in this judgment.

The circumstances surrounding the claim for damages can be summarized as follows. Towards the end of November 1994, the Plaintiffs applied to the Development Bank of Solomon Islands (D13SI) for a loan to finance a proposed motel development on the said land. On hearing about this, the Defendant approached the Branch Manager of Auki DBSI and told them not to consider the loan. On 20th December, 1994, DBSI informed the Plaintiffs that their loan application for Hotel Development had been shelved until a land dispute over the proposed motel site had been resolved. The Plaintiffs responded by advising the Bank that there was no formal dispute registered against them or that they were aware of over the said area.

On 26th April, 1995, the Defendant wrote to DBSI advising them to withdraw all financial assistance towards the proposed Motel. As a result of this the Bank declined to consider the loan application of the Plaintiffs. The Plaintiffs assert that the actions of the Defendant amounted to direct interferences with their rights to use and enjoy their land and that thereby they had incurred losses which should be recouped from the Defendant. The loss claimed is enumerated as follows:

(a) Payment of 5 log trees at $60.00 each log: $3,000.00

(b) Payment of 200 ornamental wild palm seedlings at $20.00 each: $4,000.00

(c) Labour cost for 21 days: $2,100.00

(d) Transport for consultant: $100.00

(e) Stationary: $200.00

(f) DBSI fees and charges: $350.00

(g) Costs of engaging consultant engineers, surveyors: $5,500.00

Total claimed: $15,250.00

The simple issue before this Court is whether there had indeed been interference with the rights of the Plaintiffs by the Defendant to use and enjoy the said land. To answer this question, the interference alleged must be considered. That the Plaintiffs have the exclusive right to use and enjoy the said land is never in dispute. According to the affidavit of Peter Tafea Nee filed on 6th December, 1996 and copy of the Perpetual Estate Register Parcel No. 171-002-18, attached, the Plaintiffs together with Wilson Ne'e were the registered joint owners of the said estate.

What was the said interference? The Plaintiffs claim these were the actions of the Defendant in writing letters to DBSI, falsely representing that there was a dispute when there was none, and advising the bank to with-hold financial assistance. The crucial question to ask in respect of these interferences is whether these amount to an interference with the rights of the Plaintiffs to use and enjoy the said land. With respect, I must answer this in the negative.

It is my view that this claim is mis-guided in that it makes the erroneous assumption that the Plaintiffs have a right as well to be assisted financially by DBSI. Whilst it is clear the Plaintiffs have a right to the use and enjoyment of the said land, it does not include a right to financial assistance from DBSI. The Plaintiffs like any other ordinary customer of the Bank, have to make application to the Bank in the usual way and hope that its application will be favourably considered by the Bank and approved. It must be borne in mind that the decision to approve or accept any financial assistance for the Plaintiffs is a matter solely vested with DBSI. It may or may not approve the application of the Plaintiffs for financial assistance by way of a loan. If it refuses for whatever reason, (in this case it was based on an erroneous belief or mis-conception), the Plaintiffs do not have any remedy in law against the Bank. They may raise complaints with the management or directors of the Bank, but that is as far as they can go. They cannot come to this Court and sue the Bank for losses that have been incurred in anticipation of an approved loan, even if things looked so promising from the beginning. The Defendant with respect has not interfered with the use and enjoyment of the said land. What he has done merely it seems is to interfere with their application for financial assistance from the Bank. That in my respectful view is not the same thing as interfering with the use and enjoyment of the land.

It should also be noted that the expenses incurred by the Plaintiffs were undertaken with the foreseeable risk that the loan application will not be approved, as has happened in this case. The Bank could easily have turned around and advised them that no funds were available. In such a case, the Plaintiffs would not be able to take any claim against the Bank. If the Plaintiffs therefore cannot successfully sue the Bank in law, then what rights in law do they have against the Defendant, who was not responsible for making the ultimate decision to refuse to grant the loan application? If this had been a proper claim, then surely, the Bank must also be joined as a defendant for listening to the unfounded claims of the Defendant. The Bank however, has not been joined as a defendant, and I do not think the claim has been properly understood and commenced as against the Defendant.

The claim for damages accordingly for economic loss must be dismissed.

The other order sought in the Statement of Claim is proper and in view of the conduct and attitude of the Defendant as deposed to in the affidavit of Peter Tafea Nee filed on 6th December, 1996, I am prepared to grant restraining orders (although on one hand I appreciate that this may be unnecessary, as criminal and civil actions for trespass to land can be actioned by the Plaintiffs against the Defendant). Nevertheless to make the point crystal clear the restraining orders sought in paragraph 3 of the Notice of Application filed on 6th December, 1996, is granted together with a Penal Notice to be attached.

On the question of costs, the Defendant must pay for the Plaintiffs costs in any event.

ORDERS OF THE COURT:

1. Judgment entered for the Plaintiffs in default of Appearance or filing of Defence.

2. Dismiss claim for damages for economic loss.

3. Order that the Defendant, his heirs and other relatives, assigns, servants or agents be restrained from interfering with the Plaintiffs' rights enjoyment, use or development of their perpetual estate in parcel Number 171-002-18 (known as Ambu Land) and situated south of Auki, in particular but without prejudice to the generality of the order, that he and they he restrained from asserting ownership of the said land or any legal right in respect of it either orally or in writing.

4. Costs of the Plaintiffs to be borne by the Defendant.

(Note non-compliance with these orders may amount to contempt of court with penalties of imprisonment or fines).

ter">THE COURT