Defendants in person
JUDGMENT
p>
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
(Kabui,
J):
Borrowing money from a Bank is a good thing because the borrowed money can
be put to good use for the benefit of
the borrower. It can also be
burdensome because the borrower always would have to repay the loan with
interest. Interest
is rent paid for using the borrower’s money over a
period of time. We all do this from time to time in life. It can be a
trouble when the borrower is not able to pay back with interest the
borrowed money. The bank moves in fast to recover
its money. It can seize
the property of the borrower to recover its money by selling the property.
The bank does
not always win in this procedure of recovery because at time, the Value of the
property seized and sold is not enough to repay the loan. Sometimes, there
is a surplus from the proceeds
of sale, which can be passed on to the
borrower. The impact of the Bank's recovery procedure can be devastating on
the
borrower who may end up losing everything. In this case, the Plaintiff
is the Development Bank of Solomon Islands. It lent
monies to the 1st
Defendant since 1994. The 1st defendant having failed to repay
these monies under the loan agreements, the Plaintiff took legal action
against him
for the recovery of the borrowed monies. In doing so, the
Plaintiff filed a Writ of Summons together with a Statement of Claim
on 15th
August 2000. The sum claimed is $481,764.35 with interest. Copies of the
Writ of Summons were served on the 1st and 2nd
Defendants on 22nd August, 2000 by Mr. Tonowane. The 1st
and 2nd Defendants have not formally entered appearance nor filed
any defence. By Notice of Motion filed on 31st January 2001, the
Plaintiff sought leave of the Court to enter judgment against the 1st
and 2nd Defendants, and leave to sell by tender Fixed-Term
Estates in Parcel No. 191-033-l 04 and 191-033-105 plus other consequential
orders. The Notice of Motion are in these terms –
1.
&nsp; & p;&nbp; Thsp;The Plaintiff levee tove to enter judgment herein against the
Defendants in the sum of SBD48.35
tpt">together with interest
thereon at the rate of sixteen percent (16%) per annum from
31st
July 2000
up to and including the date of payment an costs;
2. & p;   &nbp; The Plafs
have leaveleave to sell by tender the Defendants’ Fixed Term Estate in Parcels
numbers 191-033-104 and
191-033-105 span>situatituated at Tanuli, East Kola’a Ridge, East Honiara;
No tender is to
be accepted without the further leave of a Judge in Chambers,
cl
4.
&nsp; The Defendants
immediately deliver to the Plaintiff vacant possession of the properties in Parumberan stlettecing:">191-033-104
-104 andn>and
191-033-105;
5.
&   &nbp; The Defendants,
their servants, agents, invitees, licensees or others entering the land in
Parcel Numbers 191104 and
nd
191-033-105 under the Defendants’
authority forthwith vacate the same and forthwith remove all their chattels
from the same;
6. ; T e
ef Dantsdants, thei their servants, agents, invitees, licensees or others entering
the land in Parcel Numbers
191-033-104 and 191-033underDefen’
thori permly restraestrained ined from from enterentering ting the sahe said land;
7. ; The; Tni Ho
a
Cit City Police Commander and all Police Officers under his direction forthwith
upon receipt
of any order made pursuant to orders 4, 5 and 6 hereof
end aforce and is reasonablonably necy necessaressary for such purpose
upon request
by the Plaintiff or its Solicitor;
cl
8. ;&nbssp; bhe Defendantndantndants
pay the Plaintiff’s costs of and in connection with this action including
this
applicat/span
9. ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;&
Such fuch furtherrther order other order as this Honourable court deem meet.
The 1st
and 2 Defendants opposed tsed the Notice of Motion in all respects
from the bar table as well as statement of defence filed on 5th
March 2001.
The
Facts
The 1st
Defendant Henry Kwakwaoa, was once an employee of the Plaintiff. He resigned
from his job as an employee of the Plaintiff
on 5th March 1998.
The 2nd Defendant is the wife of the 1st Defendant.
She was not a party to any loan agreements entered into with the Plaintiff.
She however
is a
joint owner of Fixed-Term Estates in Parcel No. 191-033-104 and 191-033-105
which were mortgaged as security for
the loan obtained from the plaintiff.
The 1st Defendant started borrowing monies from the plaintiff
since 26th October 1994 under the Plaintiff’s staff housing loan
scheme. The interest rate was concessionary and repayment instalments
were
small. However, the repayment instalments began to increase in amount as the
1st Defendant obtained further loans from the plaintiff. By about
April 1997, the first Defendant’s monthly repayment instalment
stood at
$2,662.00. At the time the 1st Defendant resigned as an employee
of the plaintiff in 1998, he obtained from the plaintiff a further loan of
$114, 470.00 for a fishing project. The interest rate was 16% and the
monthly repayment instalments was $6,050.00. The reason for the increase in
interest rate was that the Fishing Project was
commercial loan undertaken by
the 1st Defendant who was no longer at that time anoyee of
the Plaintlaintiff. The Fishing Project had been fully disbursed by 6th
May, 1998. The repayment schedule commenced on 30th March 1998.
The
Defendants’ Case
The 1st
Defendan not dispute the debt of $481,764.35 but objected to the Nohe Notice
of Motion in very strong terms. Both the
1st and 2nd
Defendants objected to the plaintiff seizing their properties and selling
them to satisfy the debt. They also raised
issues of possible counter-claims
against the Plaintiff. Other than these, the Defendant’s case is devoid of
merit.
The
Plaintiffs Case and Conclusion
The
Plaintiffs’ case is straight forward and simple. The 1st
Defendant failed to repay his loan and that fact entitled the plaintiff to
sue for the recovery of $481,764.35 under
the relevant Loan Agreement. The 1st
Defendant is in breach of that contract. The debt being a liquidated sum,
the Plaintiff was entitled to come to Court
for recovery Order 14, rule 1
(a) of the High Court (Civil Procedure) Rules 1964 ( the High Court Rules).
The Notice
of Motion though should have been by summons is the correct way
of coming to court for judgment, without trial, where the amount
claimed is
a debt and the plaintiff believes the Defendant has no defence to mount
against the Plaintiff’s action claim.
As I have said, there is not much in
the way of a defence being on the record in this case. In fact, according to
Exhibit
“PN-7” attached to Mr. Ne’e’s affidavit filed on 30th
January 2001, the 1st Defendant had paid only 4 repayment
instalments over the period of 34 months since 30th March 1998.
The total amount paid was only $14,531.16 as at 22nd January
2001. This was a dismissal performance to say the least. The first defendant
simply had no good excuse. He was
at fault in every way. Although the 1st
Defendant had raised issues of counter-claims against the Plaintiff, he did
not seem to have pursued them in earnest.
Such counter-claims are however
not a bar to the plaintiff’s claim for the repayment of $481, 764.35 by the
1st Defendant. Such counter-claims may be pursued later if they
are worthy of merit.
On of
the orders sought by the Plaintiff is the leave of this to sell by
tender ther the Fixed Term Estates in Parcel
Nos. 191-033-104 and 191-033-105
located at Tanuli Ridge, East Kolar Ridge, Honiara. These two properties are
jointly
owned by the 1st anup>ndup>nd Defendants. These
properties are encumbered by charges registered in favour of the plaintiff.
This being the case, the
Plaintiff istled to apply to the Court under
section 171of the Lahe Land and Titles Act (Cap 133) to enforce those charges
against the 1st Defendant. The Plaintiff has done this in the
Notice of Motion. The Court under section 171 above does have the power to
order the sale of the Fixed Term Estates in Parcel Nos. 191-033-104 and
191-033-105. This is where the interest of the
2nd Defendant
comes in because she is a joint-owner of Fixed-Term Estates in Nos.
191-033-104 and 191-033-105. Whilst I understand
and do appreciate the
objection by the 1st Defendant to the selling of their
properties, the 1st Defendant continues to default under the
rele relevant Loan Agreement. The Plaintiff has refused to renegotiate the loan
with the view to rescheduling repayment. I do not blame the Plaintiff for doing this because the evidence clearly shows that the
1st
Defendant’s repayment history is of the worst kind. In fact, the plaintiff
is in retrospect is to be partly blamed for
being too lenient towards the 1st
Defendant in granting him additional loan knowing fully well his difficulty
in servicing that loan if he was granted
that loan. Nevertheless, the loan
had been granted and having badly defaulted in repayment he must now accept
the inevitability
of their properties being sold by the Plaintiff to recover
its debt of $481, 764.35. In the result , I would grant orders sought
by the
Plaintiff in its Notice of Motion. I grant the orders accordingly.
F. O.
Kabui
/p>
Judge
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