Development Bank of Solomon Islands v Gizo [2001] SBHC 1; HC-CC 325 of 1999 (16 January 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 325 of 1999

DEVELOPMENT BANK OF SOLOMON ISLANDS

v

BILLY GIZO

class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> High Court of Solomon Islands

Before: F.O. Kabui, J

Civil Case No. 325 of 1999

Hearing: 15^th January 2001

Judgment: 16^th January 2001

J. Hauirae for the Plaintiff

Defendant not present

JUDGMENT

(Kabui, J): The Plff in this case is the Deve Development Bank of Solomon Islands (the DBSI). The Plaintiff claims that the Defendant owes it the sum of $371,771.69 plus 14% interest and demands immediate payment of this sum plus interest. The Writ of Summons filed on 5th October 1999 was served upon the Defendant on 13^th October 1999 at Honiara. By Notice of Motion filed on 16th December 1999, the Plaintiff applied for an order that a judgment in default of appearance be entered against the Defendant for the sum claimed plus interest. The Plaintiff’s Notice of Motion was adjourned by Awich, J. on 16^th December 1999 due to non-service upon the Defendant. The Plaintiff's Notice of Motion was heard by me on 2^nd March 2000. Mr. Teutao on behalf of the Defendant appeared in Court and sought a further adjournment on the ground that the matter could be settled out of Court. I adjourned the hearing accordingly there being no objection from the Plaintiff and ordered that the cost be in the cause.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiffs Notice of Motion came upn before me on 4^th September 2000. Again, Mr. Ter. Teutao told me that there was a real possibility that the Plaintiff's claim would be settled. He said the Defendant had a claim against the Government for $4 millions and if Government paid the Defendant, he would settle the Plaintiff's claim without much difficulty. The Plaintiffs Counsel, Mr. Hauirae, again did not object to an adjournment sought by Mr. Teutao on this basis. I therefore adjourned the hearing to allow the Defendant to sort out his debt with the Plaintiff. Apparently, the Defendant had not settled the Plaintiffs credit against him. The Plaintiff is now back in Court asking the Court to enter judgment against the Defendant.

Facts

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By a written agreement, the Plaintiff on or about 26^th September 1994, disbursed to the Defendant the sum of $263,000 as loan funds to the Defendant. The repayment instalment was $4,850.00 per month. The interest rate was 14% per annum. As security for the repayment of the loan, the Plaintiff created a charge over parcel 191-033-47 in favour of itself. The Defendant has failed to repay the loan since 21^st February 1994. The arrears outstanding as at 31^st July 1999 stood at $213,400. The principal loan balance as at that same date stood at $158,371.69. The told outstanding claim being $371,771.69.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Relief Sought

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By the tid date the Defendant appeared in Court by his Counsel, Mr. Teutao, the Defendant had had long been out of time to enter appearance. That is to say, Mr. Teutao appeared in Court, 5 months after the Plaintiff filed its Writ of Summons. At no time, had the Defendant or Mr. Teutao entered a formal appearance prior to the date of hearing of the Plaintiffs Notice of Motion on 2^nd March 2000. There was no reason why the Plaintiff should not press for a judgment in default of appearance at that hearing. Mr. Teutao had appeared too late for the Defendant. The Plaintiff's Counsel, Mr. Hauirae, however was most accommodating and being convinced that the Defendant would pay, agreed to the second adjournment. He did the same for the third adjournment. By 27th November 2000, he realized that the prospect of settling the debt was becoming remote. He therefore wrote a letter of that date to the Registrar requesting the Registrar to fix a date for the hearing the Plaintiffs Notice of Motion. The next hearing date was yesterday 15th January 2001 at 9:30 a.m. before me. The Defendant failed to appear in Court though his wife was served with the Notice of Hearing at the Defendants residence in Honiara on 12^th January 2001. The Defendant had contacted Mr. Teutao who was then already an employee of the Government. Mr. Teutao did not appear in Court to explain his position but told Mr. Hauirae to tell me that being an employee of the Government, he could no longer act for the Defendant. The Defendant chose not to come to Court. No defence has ever been filed by the Defendant in this case.

I am therefore of the opinion t there being no appearance entered by the Defendant in then the first place within 14 days after service of the Writ of Summons, the Defendant is entitled to a judgment in default of appearance. The appearance of Mr. Teutao on 2^nd March 2000 was unprocedural and well out of time. The Plaintiff is therefore entitled to the relief sought in its Notice of Motion filed 16^th December 1999. The Plaintiff's application is therefore granted with costs. I order accordingly.

F. O. Kabui

Judge