National Bank of Solomon Islands Ltd v Sawane [1998] SBHC 62; HC-CC 145 of 1998 (9 October 1998)

HIGH COURT OF SOLOMON ISLANDS]

Civil Case No. 145 of 1998

NATIONAL BANK OF SOLOMON ISLANDS

-v-

FRANCIS FERATALIA SAWANE

Honiara: Brown PJ

Date of Hearing:
Date of Judgment:

Mr. Presley Watts for Applicant
Mr. Charles Levo for the Respondent

Notice of Motion by defendant for stay of proceedings.

Reasons for Decision

Mr. Watts filed motion on the 6^th June seeking that orders of the Court given previously be stayed. Mr. Watts was able to point to the Court orders of the 9^th May as those which he wanted stayed.

1. The Plaintiff have leave to accept the bid of $250,000 by Mr. Matthew Cooper Wale for the purchase of Francis Feratelia’s Fixed Term Estate in Parcel No. 171-001-8.
   
2. The Registrar of the High Court of Solomon Islands is authorized to execute transfer documents on behalf of the Defendants relating to the transfer of the property in Fixed Term Estate in Parcel No. 171-001-8
   
3. The Commissioner of Lands to effect the transfer of Fixed Term Estate in Parcel No. 171-001-8 to Matthew Cooper Wale.
   
4. The Defendants pay the Plaintiff’s cost of and in connection with this application.
   

Consent judgment was given on the 9^th October 1998; the judgment was in the following terms:

1. Judgment be entered for the Plaintiff in the sum of $753,808.20 as monies due and owing by the Defendant plus interest thereon at the rate of 18% per annum from 1^st September 1998 until payment.
   
2. The Plaintiff have leave to sell Fixed Term Estate in Parcel Numbers 171-001-8, 171-001-154, 171-001-322 and 171-001-71 provided that the Plaintiff shall first seek the leave of the court prior to accepting any tender for the purchase of the Fixed Term Estate in any of the said Parcel Numbers.
   
3. The Defendant shall immediately deliver vacant possession of Parcel Numbers 171-001-8, 171-001-154, 171-001-322 and 171-001-71 to the Plaintiff.
   
4. The Defendant, his servants, agents, invites, licensees or others entering Parcel Numbers 171-001-8, 171-001-154, 171-001-322 and 171-001-71 under the authority of the Defendant shall forthwith vacate same and forthwith remove all chattels from same.
   
5. The Provincial Police Commander at Auki and all Police officers under his direction forthwith upon receipt of this order shall attend and enforce orders 3 and 4 hereof using such force as is reasonably necessary for such purposes.
   
6. The Defendant pays the Plaintiff’s costs of and in connection with this action on an indemnity basis.
   

Consented to by –

Sol-Law 8^th October 1998

Sol-Law Date

Solicitors for the Plaintiff

Bridge Lawyers 7^th October 1998

Bridge Lawyers Date

Solicitors for the Defendant

Perfected this 9^th day of October 1998.

BY THE COURT

_______________
REGISTRAR

The defendant was given moneys on loan by the Bank and had failed to repay them when called upon to do so. No application has been made to set this judgment aside.

In support of his motion, Mr. Watts relied on two affidavits, one of Elijah Muala filed 26^th June (and subsequent) and the other by Detective Inspector Chris Mamu. I struck out the earlier affidavits of Elijah Muala for the affidavit was opinion evidence of a financial management consultant, which, on its face, clearly sought to usurp the function of this Court. The Court cannot expect to rely on such opinion, addressing the plaintiffs own financial statements and finding them deficient as to the 1995 financial year, as in some way proof of the Bank's misfeasance in some fashion.

For instance the affidavit, on its face in para 2 purports to find “misrepresentation and non-disclosure, leading to the respondent (banks) hush option for the sale of the applicant (Sawane) property which is the issue in this action.”

Since Mr. Muala then refers to the financial statement of the applicant (Sawane) as his source, it is plain this affidavit is rightly objectionable for its seeks to attach blame on the bank for failings which the borrower, Sawane apparently exhibited in his 1995 statement. It should be remembered that judgment by consent was given in 1998.

The Policeman’s affidavit stated that as a result of a complaint by Mr. Sawane the fraud squad has been investigating this account of Sawane with the Bank. It relates to a period 1989 to 1996. The officer particularly referred to “pay cash cheques” which were listed. They were listed annually starting in 1989 and finished in June 1996. Mr. Sawane was the account Francis Feratelia (Sawane) T/as Francis Sons Store, PO Box A3, Auki, Malaita Province.

The argument, Mr. Watts says, is that the Bank fraudulently converted these moneys to its own use and Mr. Sawane had no idea it was taking place for the cheques were “cash” cheques.

This motion is without merit. The applicant’s argument goes to the validity of the judgment. Judgment was by consent. The argument now raised goes back to a period of time well before the judgment. He now seeks to impugne the judgment on this spurious basis. Clearly his financial accounts would have included these cheques and he would have had reason to take issue with the bank’s actions in paying such cheques at that time if he did not countenance their presentation and payment. It went on for years and to suggest that the applicant Mr. Sawane never knew of it, beggars belief.

The motion is wholly without merit. The nature of the application is that of an application to set a judgment aside. The matters which must be addressed in such an application have not been touched on, except this spurious suggestion that “cash” cheques of the business have been cashed unknown to Mr. Sawane.

As I say, the business seems to have practiced that mode of accounting for years without concern.

The judgment was by consent in 1998. Both parties were represented. The motion is struck out as disclosing no merits.

The applicant shall pay the respondents costs.

For some reason Mr. Watts entitled his documents, Francis Feratalia Sawane -v- National Bank of Solomon Islands yet they were filed in these proceedings commenced by the Bank. The filing escaped my notice, but should have been rejected at that point in time.

J R BROWN
PUISNE JUDGE