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Taupale v Development Bank of Tuvalu [2023] TVHC 7; Civil Case 2 of 2018 (4 October 2023)

IN THE HIGH COURT OF TUVALU 2023


CIVIL CASE 2/2018


BETWEEN
SIKETI TAUPALE
PLAINTIFF


AND
DEVELOPMENT BANK OF TUVALU
DEFENDANT


Before Hon Judge Sir John Muria
Hearing 8th November 2022, 13 & 21 March, 11 & 14 April 2023


Ms C Nia for Plaintiff
Ms S Kausea for Defendant


JUDGEMENT


Muria J: The background story in the present case reveals an all-too familiar tale of the Challenges and problems confronting banking institutions and their borrowing clients. It is beyond dispute that the plaintiff in the present case is left to shoulder these problems created by one defaulting borrower and face his own with the defendant Bank.

Background

2. In or about the 18th August 1995, one Petelu Kilipati entered into a loan agreement with the Development Bank of Tuvalu (Defendant) for the amount of $37,090.00. The Purpose of the loan was for Mr Kilipati to establish his joinery business on Funafuti. As a security for the loan, the plaintiff's land was mortgaged to the Bank. Mr Kilipati had approval from the plaintiff's kaitasi to use the land as a security for the loan. A Deed of Mortgage was signed between Petelu Kilipati ("Mortgagor") and the Development Bank of Tuvalu ("the Bank") on 18th August 1995. The loan was approved.

3. Initially Mr Kilipati's Joinery Business was making money. However, Kilipati did not make any loan repayment from 1995 to 1999 to the Bank and the amount of the loan repayment outstanding was about $70,000.00. Attempts to get Kilipati to make payments did not succeed as Kilipati migrated to New Zealand in 1999.

4. Attempt had been made to recruit one Lepaio Mose to manage the Joinery Business. This was not successful. The Bank attempted to execute the Bill of sale over the chattels in the Joinery Business. This proved unsuccessful also. By 2012, Kilipati's outstanding loan balance with interest stood at $104,309.00

5. The Bank's next strategic plan to have the outstanding loan repaid was to rehabilitate Kilipati's loan account through the use of the mortgaged property. The plan was to transform Kilipati's Joinery to a rental house project to be a Joint venture between the landlord and the Bank. As a result of the discussion between the landlord (the plaintiff) and the Bank, the plaintiff supported the project proposal. The total cost of transformation of the joinery to a rental house would be about $51,188.00. All the construction materials were to be bought from Fiji.

6. The Bank's Board of Directors agreed and directed the Bank's management to take steps to recover Kilipati's principal loan amount of $37,090.00. An agreement was therefore reached between the Bank and the plaintiff on 25th September 2012 by which the Bank was to advance the sum of $51,1888.00 to erect a dwelling house for rent. For convenient sake, I shall call this loan "Plaintiff's loan" repayable over a period of 10 years at $681.00 per month. The Deed of Mortgage entered into between Kilipati and Bank on 18th August 1996 is said to continue to apply as security for the plaintiff's loan.

7. Apart from the other standard special conditions of the loan, an additional special condition was included in the loan agreement, which stated that:

"The Approval of this loan is conditioned to the servicing of Petelu Kilipati's existing loan"

8. The Plaintiff agreed to the bank's proposal to grant him a loan of $51,188.00, on the condition that he repays Kilipati's principal loan of $37,090.00. For the plaintiff, the benefit to him would be a completed house, which would be for renting out.

9. I need only mention at this stage that in addition to the Plaintiff's loan of $51,188.00, there were two (2) variations made to the loan. The first variation was made on 6th March 2013 in the amount of $15,051.35 and the second variation was made on 19th August 2013 in the amount of $30,443.83. I shall deal with these two loan variations later in the Judgment.

The Plaintiff's Claim

10. Let me set out the plaintiff's claim against the defendant before I proceed further. The Plaintiff's Statement of Claim was amended on 4th August 2022 and the plaintiff now claims:

a) AN ORDER for the Defendant to reimburse the Plaintiff the amount of $80,400.00 for the amount overpaid to the Plaintiffs loan;
b) AN ORDER for the Defendant to compensate the Plaintiff the amount of $57,495.15 being for pecuniary damages from:
c) AN ORDER for punitive damages in the amount of $50,000 being for the deceit, hardship, distress and inconvenience;
d) AN ORDER that the plaintiff is not liable for the repayment of Mr Petelu Kilipati's outstanding bad debt with the Defendant;
e) Legal and Courts costs;
f) Any further costs as the Court deems fit.

11. The Amended Statement of Claim goes on to set out the background of the plaintiff's claim followed by the grounds relied upon for the claim. I have already set out the background to the case above. I shall now set out the grounds relied upon by the plaintiff in support of his claim.

Ground of the Plaintiff's Claim

12. The Plaintiff raised four grounds in support of his claim. These are:

1. Fraudulent Misrepresentations
2. Invalid Loan Agreement
3. Unlawful occupation of the Land and
4. Illegal Tenancy Agreement.

13. I shall consider each of these grounds in the light of the evidence adduced before the Court, together with the issues raised in relation to each of the grounds in support of the claims and the defence relied upon by the defendant.

Ground 1 - Fraudulent Misrepresentation

14. Paraphrasing the Plaintiff's contention on this round (fraudulent misrepresentation), the plaintiff's case is that as the owner of the land, he was desirous of developing his land in Funafuti, Plot No.104(f) by building a House for Rent on the land. He had discussion with the then defendant's General Manager about his intended development project and his desire to take out a loan from the defendant bank in the sum of $47,000 to fund his intended development project. Following their discussion the defendant made the following statement to the plaintiff:

"We will accept your loan, but on the condition that you will pay Petelu Kilipati's loan of $37,090.00 without any interest. This will be paid separately after your own loan repayment is completed. The Defendant will have full responsibility in ordering the materials for the project, as it can attain them cheaper than hiring another company to do it. The Defendant will charge the applied interest only when the tenant entered the house"

15. The Plaintiff's contention is that the above statement made by the defendant was a fraudulent misrepresentation, which induced the plaintiff to enter into a written loan agreement with the defendant knowing that it was unreal. The Plaintiff gave five (5) reasons why he said that the defendant's representation was unreal, namely:

I. The defendant's overall intention was the rehabilitate Mr Kilipati's bad debt. On the 28th August 2012, the Defendant presented the Board paper without the plaintiff's knowledge for a loan of $51,188.00 to rehabilitate Mr Kilipati's loan agreement.
II. There was no proposal or endorsement by the Defendant's Board of Director's for the Plaintiff to pay Mr Kilipati's bad debt of $37,090.00 AUD without interest.
III. The Plaintiff became aware through the radio announcement of the tender about his project.
IV. The Defendant continued to impose interest on Mr Kilipati's outstanding loan for the Plaintiff to repay in which the balance as of 31st July 2012 was $104,309.00 AUD.
V. The Defendant knew that they were unlawfully occupying the Kaitasi land and needed the Plaintiff to enable the rehabilitation of Mr Kilipati's loan.

Whether there is fraudulent Misrepresentation

16. On the plaintiff's first ground of fraudulent misrepresentation, the plaintiff must prove by evidence that the defendant fraudulently misrepresented to the plaintiff as to the truth of the statement made by the defendant as set out in paragraph 13(above) of this judgment and which was also set out in paragraph 3 of the plaintiff's affidavit filed on 17th October 2022. The particulars of Fraud must be specifically pleaded and standard of proof, while not to criminal standard of proof beyond a reasonable doubt, fraud must be strictly proved to the satisfaction of the Court, something more than a mere balance of Probabilities. Both Counsel cited a number of case law authorities on the point, one of which is the case of Smith-Loritz Enterprises Ltd -v- Sailele Development Company Ltd [1996] SBHC 107 which set out the three-part test for fraudulent misrepresentation as laid own in Derry-v-Peek (1889) 14 App. Case 337. Fraud is proved when it is shown, by evidence, that a false representation has been make knowingly or without belief in its truth or recklessly, carless whether it be true or false.

17. Ms Kausea of Counsel for the defendant set out the test in her submission that the representation is fraudulent if:

I. the defendant knows that the statement made is false; or
II. the defendant does not believe in the truth of the statement; or
III. is reckless as to its truth.

18. On the same point Ms Nia of Counsel for the plaintiff cited the case of purapia -v kup [2021] PGDC 100, a decision of the District Court of Papua New Guinea. Having done so, Counsel presented the plaintiff's case on fraudulent misrepresentation as follow:

I. that the defendant made statement or representation which may be partially true and partially false, knowing that it is unreal;
II. that the plaintiff relied on the statement to enter into the loan agreement on 25th
III. September 2012 with the defendant;
IV. that in doing so, the plaintiff has suffered harm or loss as a result of the fraudulent statement.

The Evidence

19. There is no dispute that the defendant made the statement set out in the paragraph 13(above) of this judgement, except for the last sentence in the quoted text, namely "The defendant will charge the applied interest only when the tenant entered the house". What the plaintiff must show is that the first defendant's statement is not rue or to use the plaintiff's word. "is unreal", secondly, that the defendant does not believe in the truth of that statement; and thirdly that the defendant was reckless as to the truth of the statement.

20. The evidence from the plaintiff in Court shows that in or about 2011 he had a project plan to build a house for rent on the land, which his brother-in-law, Petelu Kilipati, once used to operate his joinery business. He approached the Development Bank of Tuvalu, the Defendant agreed to fund his project by way of a loan, secured by the same land, which was mortgage as security under his brother-in-law's loan.

21. The Plaintiff's evidence, both orally and in his affidavits further shows that following his discussion with the Bank, he agreed to take the loan of $51,188.00 repayable at $681.00 per month over a period of 10 years. He suggested the sum of $47,000, but when the Bank assessed the costs on constructing his proposed rental house, it was assessed to be $51,188.00.

22. As part of the defendant's recovery strategy to recover Kilipati's principal loan approved by the defendant's Board ("EX12"), the defendant discussed with the plaintiff the special condition for the approval of his loan that he would have to repay Kilipati's Principal loan amount. The plaintiffs stated in evidence that he was not happy to repay Kilipati's loan but "I needed the money to build my project house" and "because I did not want to lose my land". He therefor agreed to the defendant's recovery plan and signed the loan agreement for the sum of $51,188.00 with the defendant on 25th September 2012.

23. The Plaintiff's evidence confirms the evidence given by Paul Petueli who was the defendant's Senior Recovery Officer as to the genesis of the $51,188.00 loan agreement between the plaintiff and the defendant. The disputed text of the statement complained of by the plaintiff and referred to in paragraph 3 of the plaintiff's affidavit filed on 17th October 2022, saved for the last sentence in that statement, can only be regarded as the confirmation of what transpired between the defendant and plaintiff prior to the signing of the loan agreement on 25th September 2012.

24. The Submission by the plaintiff is that the quoted statement was made by the defendant knowing it was unreal because it was presented to the Board without the plaintiff's knowledge and that there was no endorsement by the defendant's Board for the plaintiff to pay Kilipati's bad debt of $37,090.00 without interest. That submission clearly does not accord with the evidence, both from the plaintiff and defendant's witness, Paul Petueli and must be rejected.

25. As to the last sentence in the quoted text appearing in paragraph 3 of the plaintiff's affidavit namely, "The Defendant will charge the applied interest only when they entered the house", no evidence was presented to the Court to support the suggestion that the defendant made that statement. In cross- examination, the plaintiff stated that the statement was made orally by the then General Manager of the Bank. That General Manager gas already passed away and it cannot now be verified whether he made the statement or not. When one turns to the Minutes of the defendant's Board of Directors Meeting (Exhibit 12 in affidavit of Petueli) there were reference at all to the issue of the commencement of the payment of interest. The only Conclusion that can be drawn from that is that the last sentence in the quoted statement was not made by the then General Manager of the defendant and therefore cannot be attributed to as being made by the defendant.

26. On the evidence before the Court, there is clearly no evidence of fraudulent, misrepresentation in this case. As such Ground 1 of the plaintiff's claim cannot succeed. It is rejected.

Ground 2 - Invalid loan Agreement

27. The Second ground relied upon by the plaintiff to support his claim is that the loan agreement entered into between the defendant and plaintiff on 25th September 2012 is invalid. The basis upon which the claim of invalid loan agreement is made are:

(a) The principal loan included the following terms and conditions that are unfair, illegal and unreasonable and therefore voiding the whole contract:
"Clause 2.3: The Borrower irrevocably authorizes the bank to make disbursement direct to suppliers of goods and services to the Project at the Borrower's request and direction. The Bank shall have sole discretion in deciding whether any such disbursement shall be made direct and may make such disbursement without reference to the Borrower."
"Securities: Deed or Mortgage over building and land at Tokotu."
"Special Conditions: The approval of this loan is condition to offset Petelu Kilipati's existing loan."
(b) As a result of the above clauses the Plaintiff's right and obligations

28. As far as the Court is concerned, the only issue under this ground is whether the loan agreement is valid or not. In the Amended Statement if Claim, the claim of invalid plan is made in respect of the loan agreement date 25th September 2012. However, in Counsel's submission to the court both written and orally, the plaintiff's claim of invalid loan agreement referred to the initial loan of $51,188.00 dated 25th September 2012 as well as to the two loan variations made on 6th March 2013 (1st Variation) in the sum of $15,051.35 and on the 19th August 2013 (2nd Variation) in the sum of $30,443.83. I will consider them separately:

(i) Loan of $51,188.00

29. I have already found that the evidence from both, the plaintiff and Paul Petueli, confirmed the genesis of the loan entered into between the parties on 25th September 2012 for the amount of $51,188.00. Although at first, the plaintiff was not happy to go along with the defendant's plan to recover the principal amount of Kilipati's loan of $37,090.00, he agreed to take the loan and signed the loan agreement for $51,188.00.

30. Despite the evidence from the plaintiff that he agreed to take the loan and did sign the loan agreement, Counsel submitted that the loan agreement is unfair, unreasonable and illegal because the plaintiff was not availed with complete and true information. Counsel also submitted that the defendant acted out of authority, as there is no authority for the defendant to legally subject and new borrower to pay the bad debt of another. Counsel has not cited any authority, case law or statutory for the proposition of law she now advances. The importance for Counsel to support for the proposition is inherent in Counsel's professional duty of ensuring that all available legal proof of facts are placed before the Court. See Boucher-v-The Queen [1995] SCR 16, 24-25; see also Regina-v-H and Regina -v- C [2004] UKHL 3.

31. The submission by Counsel for the plaintiff is clearly inconsistent with the evidence given by both the plaintiff himself and Paul Petueli, the defendant's witness. The plaintiff agreed to take the initial loan of $51,188.00 and to repay Kilipati's bad debt of $37,090.00 (Principal loan without interest) in return for the defendant to fund the construction of his Rental House Project which he would retain after the completion of the repayment of his brother-in-law's bad debt, and also to protect his property (land) from being seized by the defendant.

32. In ,y judgment, the plaintiff had elected and agreed to obtain the loan of $51,188.00 from the defendant in return for the benefits which he would retain, he therefore cannot now turn and challenge the same agreement as being invalid. He cannot approbate and reprobate or accept and reject the same transaction: qui appro bat non-reprobate

33. The case law authorities are filled with examples of the application of the principle of approbate and reprobate. In Express Newspapers plc-c-News (UK) LTD & Others [1990] 3 All ER 376 the Court pointed out that "it is not possible to approbate and reprobate." At page 383-384 of the judgment, Lord Nicholas Browne-Wilkinson VC stated:

"There is a principle of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude toward another; he must elect between them, and having elected to adopt one stance, cannot be permitted thereafter to go back and adopt an inconsistent stance. "

34. In Cooper-v-Cooper [1874] UKLawRpHL 3; (1874) 7 HL 53, the court held that a person who benefits from a Will or any other document has a duty to offer full effect to the document or instrument from which he derives the benefits. In Codrington-v-Codrington [1875] LR 7 HL Lord Cairns stated, noting the well-settled doctrine of approbade:

"Where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without the same time confirming to all its provisions and renouncing every right inconsistent with them"

35. The case of Davies and others -v- Jones and Anor[2009] EWCA 1164 which was also applied in Goodman -v- Elwood [2013] EWCA Civ 1103 held that the principle that on a person who accepts must also accept the reciprocal burden. This general principle that a person who takes the benefit of an arrangement will be bound by any associated burden contained in it has also been expounded in the cases of Halsall -v- Brisell [1975] ch.169; Tito -v- Wadell (No.2) [1977] 1 ch 106.

36. The plaintiff clearly knew that he had the choice to take the loan to build his rental house, which he would own and to save his mortgaged land from the hands of the defendant. In return he agreed to assist the defendant in its recovery strategy by repaying his brother-in-law's bad debt of $37,090.00. He made the choice and entered into the loan agreement with the defendant on 25th September 2012. In the words of Lord Nicholas Brown-Wilkinson, he "cannot be permitted, to go back and adopt an inconsistent stance" that is he cannot approbate and reprobate.

37. The loan agreement entered into between the plaintiff and defendant on 25th September 2012 for the amount of $51,188.00 is valid and therefore enforceable.

(ii) The Two Loan Variations

38. The plaintiff's complaint with regard to the two loan variations is that he did not know about them. He claimed that they were made by defendant without any reference to him. The two variations greatly increased the amount of the total loan beyond that which he agreed to on 25th September 2012, and that they have added financial burden on him without any regard to him. He also claimed that they were based on the sole decision of the defendant's management. When asked if he signed the two loan variation agreements, he said that the defendant got him to sign the two loan variations after the house was completed and that was when he became aware of the variations. The bank officer told him that variations were needed to complete the construction of the house.

39. The evidence for the defendant came from Paul Petueli who was then the senior Recovery Officer for the defendant. In his affidavits sworn to on 10th August 2017, 20th September 2022 and 8th November 2022, Petueli stated that with regard to the initial loan of $51,188.00 discussions were held between the plaintiff and the defendant leading up to the signing of that loan on 25th September 2012. At Paragraph 5 of Petueli's affidavit sworn- to-on 8th November 2022, Petueli states:

"Prior to the Plaintiff signing his Loan Agreement, the Bank provided the Plaintiff a Letter of Offer and Letter of Acknowledgement. Annexed and Marked P24 is the letter of offer ad P25 is the Acknowledgement Letter. These documents were explained by the Bank to the Plaintiff to which the Plaintiff agreed and signed before signing his initial Loan Agreement".

40. The Plaintiff's evidence confirms that position regarding the initial loan of $51,188.00 and I have already found that the loan of $51,1880.00 is valid and enforceable. With regard to the two loan variations, the position is not that straight forward.

41. In paragraph 8 of Petueli's same affidavit, he refers to the two variations as being made by the "Bank and the plaintiff to accommodate the procurement of building materials in Tuvalu and other additional costs needed to complete the constructions of the building financed, by the plaintiff's loan." The Suggestion implied in that paragraph of Petueli's affidavit is that the two loan variations were agreed actions of both the defendant and plaintiff, both in his oral evidence in Court and in his affidavits.

42. The plaintiff's position with regard to the two loan variations is best captured in his affidavit of 14th March 2022 where he deposed to as follows:

1. THAT the loan officer, Mr Paul Petueli, for the defendant was mainly in charge of my loan in terms of the financial management and supervision of the overall construction ('the project') from the beginning until its completion. The project duration lasted four to five months from mid-March to mid-August 2013.
2. THAT after the project was completed, I went to the bank to collect a copy of the loan agreement and the other documents that I signed in 2012. At the office Mr Petueli told me to sign some documents, as I need to because the Project has completed. After signing the two documents, I saw Mr Petueli wrote on the paper I signed the amount of $15,051.35 and $30,443.80 then told me that those were increase to the initial loan for additional cost for the project. I told Mr Petueli that I do not understand as I do not know what were those additional costs for and why such an increased was required because the initial loan of $51,188.00 AUD should have covered the costs for the construction.
3. THAT I was not convinced that additional costs were required to complete the project. In fact, I was not happy with the fact that after signing the documents Mr Petueli inserted those figures into the paper, hence I sought legal assistance from the Office of the People's Lawyer.
4. THAT after seeking legal assistance, I was told that those documents I signed before Mr Petueli when the project completed were deeds of variation: one dated 6th March 2013 for an increase amount of $15,051.35 AUD, $30,443.80 AUD. These variations for additional costs were done without my understanding as to what they are and for what purpose.
5. THAT my lawyer confirmed that the two variations were for additional cost to complete the project, I was still not convinced that such a huge amount, approximately $100,000.00AUD, is required to build a simple wooden house, which is only twenty (20) meters in length and eight (8) meters in width. It is unrealistic that such a simple wooden house would costs approximately $100,000.00 AUD. (Annexure "S1" Architecttural design of the House)
6. THAT in 2013, few months after the project was completed, I was still perplexed with the huge cost of the construction, hence I returned again to Mr Petueli for an explanation and demand answers to my questions. At the office I was told by staffs of the defendant that Mr Petueli has taken his leave to his country Kiao, Fiji, and that I should come back if he returns. I asked for documents for the loan and house but the staffs of the defendant refused. They told me that I should come back if Mr Petueli return from Fiji.
7. THAT after obtaining my loan financial statement and checked it, I realized that the initial loan if $51,188.00 AUD does not appear in the loan statement. And I was confused with the many transaction (disbursements) in my loan statement. I have no idea what are those disbursements."

43. The defendant's position with regard to the First Loan Variation is best shown in the evidence of Petueli together with the Minutes of the defendant's Board. In paragraph 10 of Petueli's affidavit of 10th August 2017, he stated that the purpose of the loan increase was: "to accommodate for the difference between the initial project cost and the actual cost" to cover for certain items including 2 water tangs, variations in building materials, gravel and sand, variation in labour cost and custom clearance. These were overlooked by the Recovery Officer during the submission to the Board. Consequently, "These factors had forced the Management and the Recovery Unit to request for another additional loan of $15,051.35 in order to meet the difference, otherwise the project will be left, incomplete:" Exh.P7 to Petueli's affidavit of 10th August 2017-Board of Directors Meeting, 6 February 2013.

44.With regard to the second loan variation, in the sum of $30,443.83 paragraph 17 of the same affidavit of Petueli shows that the variation was required "to accommodate for additional expenses to the project" to cover further items such as two (2) more water tanks, outstanding bills for building materials, labour costs, installation and inspection fees for the two units, labour cost (electrical), transport and PF and profit margins. In their submission to the Board of Directors at its meeting on 14th August 2013, the defendant's Management explained to the Board as follows:

"Based on the failure of the tender process, management was forced to seek an additional loan of $15,051.35 (first loan increase) to cater for water tanks, variance in building materials, gravel and sand, variation in labour cost and custom clearance. Based on this assessment, management was confidence that the project will be completed in time with no extra costs. However, the failure of the supplier to deliver all building materials in time thus causes further delay in the implementation of the project. This has caused a lot of frustration and headache despite of the many corresponding with the supplier to deliver our building materials in time. The bank so far had receive three shipments of building materials from the supplier which cost us a lot in terms of shipping agency fee, preparation of Bill of lading and transportation. The last shipment the supplier fails to deliver all the left over building material from Fiji, this has forced the management not to wait for these building materials to arrive but to use local suppliers to provide for our requirements. The management in its recent correspondence with the supplier advice RC Manubhai to reimburse the equivalence of the short supplied building materials. So far one unit from the project had been completed from materials supply by our local suppliers, with only the electricity power now left to be installed."

45. Apart from showing that it was the defendant's management that was initiating and seeking the two loan variations, the language used by the management in seeking the two additional loans shows clearly why the management sought the two variations. As for the First Loan Variation, the Management and the Recovery Unit were forced to request the additional $15,051.35 because the Recovery Officer 'overlooked' the items mentioned in the request to the Board of Directors during the submission for the initial loan of $51,188.00. As to the Second Loan Variation, that came about due to the delay in the delivery of the building materials from Fiji but to obtain building materials from the local suppliers at a higher cost, so as to complete the project.

46. My reading of the evidence, both orally in Court and in the affidavits, does not indicate that the plaintiff had any hand on the intention and requests of the two Loan Variations. The evidence points to the position that is was the defendant's Management who were managing the Project, found it necessary to further add the two Loan Variations for the reasons that I have already referred to earlier and sought the Board of Directors approval. Secondly, there appears to be no evidence at all to show any discussion or consideration given to the financial burden that the plaintiff would have to hear as a consequence of the additional two loan variations. It seems obvious from the evidence from Petueli that the defendants Management as managers of the project were very much concerned about completing the project and sought the two loan variations from the defendants Board of Directors without the need to have prior consultation and discussion with the plaintiff.

47. The argument for the defendant on these points as put by Counsel for defendant is on two fronts, the First, being statutory and secondly being contractual. As to the First argument, counsel relied on sections 4 and 32 of the Development Bank of Tuvalu Act 1990. Section 4 provides as follows:

4. Functions and powers of the Bank
1) The Bank shall:
And for the purposes of carrying out these functions the Bank may carry on general banking business, in accordance with generally accepted international banking principles and practices.
2) Without in any way limiting the generality of subsection (1), the Bank shall have the powers, in addition to any other powers conferred on it by this Act -

48. Section 32 is in the following terms:

"Execution of Contracts"
32. "Contracts on behalf of the Bank shall be made, varied or discharged in writing and any contract so made is effectual in law, and is binding on the Bank and on all other parties to the contract and their heirs successors, assigns, executors and administrators."

49. Counsel submitted that section 4 (2) of the Act authorizes the Bank to protect or recover its financial interest in any transaction and may do all things necessary alone or jointly in connection with its power and functions. This would include taking steps to recover its money owed by Kilipati Petelu. As to section 32, Counsel submits that the contract made on behalf of the Bank can be varied and it's binding on all parties to the contract, their heirs and successors. In this regard, Counsel argues, that the plaintiff is the successor of Kilipati Petelu and it is binding upon him to fulfil Kilipati's obligation to repay his loan.

50. I accept that section 4 (2) empowers that Bank to protect or recover its financial interest and that section 32 binds the plaintiff to repay Kilipati's initial loan as he agreed to do so when signed the loan of $51,188.00. I cannot, however, agree to the suggestion that the purported two loan variations bind the plaintiff even if they were made for the purpose of fulfilling his obligation under the initial loan agreement where the two subsequent loan variations were made solely at the instigation of the Bank's Management without the knowledge and agreement of the Plaintiff. The two subsequent loan variations were suggested by the Bank's Management and presented to the Board for its approval without consultation or knowledge of the plaintiff. I do not accept the suggestion made on behalf of the defendant that the plaintiff was consulted about the need for the loan variations before they were presented to the Board for its approval. The evidence from the defendant's witness, Paul Petueli including the submissions to the Board is that the Management decided on the need for the variations having realized the shortfall, omission and I might add, the mistakes on the part of the Recovery Unit and proceed to seek approval from the Board without any discussion with or knowledge of the Plaintiff.

51. The evidence also shows that the plaintiff was merely asked to sign the loan variations documents after the variations were already approved by the Board. There was no consideration given by the Management as to the need to invite the plaintiff for his input into them. There was also no consideration given to the financial obligation and the financial capacity of the plaintiff to bear the additional financial burden, which the plaintiff would carry as a consequence of the additional two loans. Such a lending practice clearly benefit the lender (defendant) and is detrimental to the borrower (plaintiff) as it ignored the burden and the ability of the plaintiff to repay the loan. It can only be presumed that the gloss which the defendant hopes to rely on for its subsequent unilateral actions is the plaintiff's initial loan agreement of $51,188.00 and that the two subsequent loan variation were just some addenda to that initial loan. If that was the case, then it can only be turned a bad- lending practice.

52. Sections 4 (2) and 32 of the Act can never have the applications as Counsel argued for. The underlying principle implied in the two provisions is that there must be a binding effect on all the parties to the contract and that binding effect can only come about the meeting of the minds of all parties to the agreement. On the evidence before the Court, that was missing in so far as the two loan variations is concerned.

53. There is also a further matter, which the defendant heavily relied on in this case, namely, the plaintiff's land which it now depends on as security for the loan granted to the plaintiff. The recovery strategy now agreed with the plaintiff, presents a grand plan for the defendant to secure the repayment of the plaintiff's loan as well as that of Kilipati's outstanding principal loan. With the additional two loans now virtually imposed upon the plaintiff any default by the plaintiff to shoulder the financial burden on loan repayment runs the risk of losing his land. As such, since the two loan variations took no account of the plaintiff's ability to shoulder the additional financial burden on the plaintiff it can only be concluded that the defendant knew of or was indifferent to the plaintiff's financial inability to repay the loan since its lending is secured by the plaintiff's asset (land and building). This is akin to willful blindness on the part of the defendant.

54. In sum, the defendant's conduct in arranging and securing the two loan variations can properly be described as "unconscientious exploitation", in the language used by the High Court of Australia in Jeffrey William stubbings -v-JAMS 2 Pty Ltd & Ors [2022] HCA 6 which was a case involving a loan based on asset-based lending.

55. The facts of Stubbings -v- JAMS 2 Pty Ltd are as follows: The appellant was unemployed and had no regular income, but he owned two houses in Narre Warren, both of which were mortgaged to the Commonwealth Bank of Australia. He then wanted to purchase another property so that he could live in it at Mornington Peninsula. He was introduced to one Mr Zourkas, a consultant, whose business was to introduced potential borrowers to "AJ Lawyers" who in turn provide services to clients such as the respondents. AJ Lawyers never dealt directly with the appellant. At their first meeting, the appellant indicated to Mr Zourkas that he wanted to purchase a small house, which he could live in. Mr Zourkas responded that there would be no problem and that it would be better to get something bigger with the land. Encouraged by Mr Zourka words, the appellant found a five-acre property with 2 houses on it in Fingal at the value approximately $900,00. Mr Zourkas told the appellant that he could borrow a sum sufficient to pay off his existing mortgages, purchase the five-acre property at Fingal, and have left over (approximately $53,000) to go towards payment of the first three months interest on the loan. On behalf of their clients (respondents), AJ Lawyers offered to the appellant the loan and refinancing of his two previous mortgages conditional on the appellant acting as "guarantor" and with mortgages on the three properties as security.

56. The appellant Stubbing was the guarantor of a loan made by the respondents to a company called Victoria Boat Clinic Pty Ltd, owned by the appellant. The loan was secured by mortgages over three properties owned by the appellant. The company had no assets and had never traded. The appellant had no income or means to meet his obligations to the respondents. Nevertheless, the respondents, especially those responsible for securing the loan and executing the mortgage on behalf of the respondent lender, knew of the vulnerability and the "disaster waiting", the appellant when they executed the mortgages over the appellant's properties. Such a conduct on the part of the respondent was found to be unconscientious. Although the facts of the present case are not the same as those in Stubbings -v- JAMS 2, I find the principles enunciated in that case are very much applicable to the present case.

57. It is also argued for the defendant that the loan disbursements were all made to complete the building for which the plaintiff will have a value for money in the end and in such case it cannot be said to enrich the defendant. In support of that argument, reference was made to the case of FSM Development Bank -v- Gimete [2017] FMSC 8; 21 FSM R 159 (Pon. 2017) (27 February 2017) where in reference to a claim of undue influence, the Court stated:

"When there is nothing unnatural, oppressive, or grossly one-sided in the construction contract between the owner and the builder, it was not an unnatural transaction enriching one party at the other's expense through undue influence, since the owner received a well- built house and the builder adequate compensation for its construction work. The contract did not result in the builder's enrichment at the owner's expense because the owner got value for money he got a well-built house"

58. Like in the Gilmete case, the plaintiff in the present case agreed to and did sign the initial loan agreement for $51,188.00 with the defendant bank. I have already found him to be bound by it. He cannot now complain about the loan agreement as being unnatural, oppressive or grossly one-sided contract. He cannot approbate and reprobate in so far as that initial loan agreement is concerned.

59. However, the evidence relating to the two loan variation Agreements in the present case puts the relationship between the plaintiff and the defendant outside the ambit of FSM Development Bank -v- Gilmete since the circumstances surrounding for the two loan variation bear the features of one-sided agreements. FSM Development Bank -v­ Gilmete is therefore distinguishable.

60. I feel that I need to mention a further aspect of this case which on the evidence shows the manner in which the defendant took upon itself solely to initiate, prepare and execute the two Loan Variations with the plaintiff simply being asked to sign them. Both Loan variations carrying higher interest rates of 12% where as the initial loan of $51,188.00 carries only 10% interest on repayment. The defendant knew that the plaintiff has very limited means of repaying the loan, let alone the two additional loan variations.

Unmindful of the Plaintiff's financial position, the defendant proceeded with burdening the plaintiff with the two additional loan variations, well knowing that the loan had the security of the plaintiff real property. That I feel is not only an "unconscionable conduct" but one that is akin to predatory lending.

61. While I do not hold that the defendant's action on the two loan variations amount to predatory lending, I am firmly of the view that the conduct of the defendant in preparing and executing the two loan variation are unconscionable conduct. See Commercial Bank of Australia Ltd -v- Amalio [1983] HCA 14, see also Stubbings -v- JAMS 2 Pty Ltd [2022] HCA 6.

62. Having observed the two DEEDS OF VARIATION TO LOAN AGREEMENT, the recital paragraphs of both Deeds stated "WHEREAS the Borrower has requested that the Bank vary the terms of the Loan Agreement for the benefit of the Borrower ( and the Guarantor, by execution of this Deed has requested that the Bank agree to that variation)". This is a form of recital in a standardized loan document used by the defendant bank, sometimes referred to as "boilerplate" documents.

63.These boilerplate documents were exhibited to the affidavits filed on behalf of the defendant to support the argument that the loan variations were the work of both the defendant and plaintiff and that the plaintiff agreed to them. As I have already found that, on the evidence before the Court it was the defendant who initiated and prepared the loan variations documents and that the plaintiff was only asked to sign the documents much later after they were prepared, these boilerplate languages in the documents cannot shield the defendant from their unconscionable conduct with regard to the two loan variations agreement. See Stubbing -v- JAMS 2 Pty Ltd (above).

64. On the evidence before the Court and in the light of what I have stated above, I find that the two Loan variations Agreements for the sum of $15,052.35 and $30,443.80 were procured by unconscionable conduct and are therefore unenforceable.

(iii) Unlawful Occupation of the Land

65. I now turn to the next complaint by Plaintiff of unlawful occupation of the Land. I can dispose of this point very briefly.

66. The Plaintiff's case in this issue in that the initial borrower, Petelu Kilipati and the defendant bank did not have thesanction of the Kaitasi (Landowners) to use the land in question. In addition, there was no lease on the land for the purpose of securing the loan. Counsel for the plaintiff relied the case of Taukatea Soaliki -v- Iopu Iupasi (2016) Civil case No.7 of 2015 (Judgement given on 1st February 2016) which stands for the proposition of law that any attempt to transfer, transmit or otherwise deal with native land without the sanction of the Kaitasi shall be null and void. See Section 13 of the Native Lands Act.

67. However the more relevant provision here is Section 56(1) of the same Act which makes it clear, as submitted by Ms Kausea, that any complaint of unlawful occupation of the land must be dealt with by the Lands Court (now Magistrate's Court). Section 56(1) provides:

56. Unlawful Occupation
(1) "Complaints concerning unlawful occupation on native land may be lodged with the registrar of the court who shall issue a summons for the appearance before him of the party or parties so informed against and of any other person or persons whom it may be necessary or proper to examine as a witness or witnesses on the hearing of such information; and the court shall in the presence of the parties proceed to hear and determine such information and being satisfied of the truth thereof shall issue a warrant addressed to any police officer requiring him forthwith to disposes and remove from such land any person in unlawful occupation of such land and the officer to whom to such warrant is addressed shall forthwith carry the same into execution"

68. This Court, in Tui -v- Iakopo [2011] TVHC 4; Civil Appeal No.02 of 2010, laid down the application of the above provision where CJ stated:

"As the Jurisdiction to determine ownership of native land in exclusively vested at first instance in the Lands Court (now Magistrate Court), involving, as it will, the need to establish the question of ownership, must be brought in the Land's Court."

69. Constrained by the above provision and case law authorities, this Court does not possess the Jurisdiction to determine in the first instance, the claim raised by the plaintiff that the defendant had unlawfully occupied the land in question. It is a non-starter and I decline to deed with this part of the Plaintiff's ground of his claim against the defendant.

(iv) Illegal Tenancy Agreement

70. The fourth ground of Complaint in the plaintiff's case against the defendant is that the two Tenancy Agreements between the Plaintiff and the Tenants are illegal because they were prepared by the defendant without the knowledge of the parties to the Tenancy Agreement and that they contained provisions directing the payment of rent to the Bank Account of the defendant. The case for the defendant is that the defendant prepared the Tenancy Agreement with the knowledge of the Plaintiff and the tenant. Both the plaintiff and the tenant signed the Agreement.

71. The answer to this part of the plaintiff's claim turns on the evidence before the court. I have to say that having considered the evidence on the point, I accept the defendant's argument that the plaintiff agreed to the defendant's proposal on the terms of the Tenancy Agreement, including the arrangement that the rent be paid directly to the defendant's National Bank of Tuvalu Account. In cross-examination, the plaintiff was asked if he agreed to the Bank's proposal on the Tenancy Agreement, he answered: "yes". He was asked why he was now challenging the Bank's position on the Tenancy Agreement, hesitated that he agreed to sign the Tenancy Agreement to take effect when the people arrived to rent the house. Asked if he knew that the rental payments were to be paid directly to the defendant's National Bank Account, the Plaintiff answered "yes".

72. It appears from the evidence of the plaintiff that his concern was that he is not given the latitude of having clients of his choice to rent the house so, as to enable him to make some gain from the rents of his house. Instead the defendant selected the tenants and have all rental payment made directly into the defendant's National Bank Account. That, of course, did not make the Tenancy Agreement Illegal. It might be inconvenient to the Plaintiff but the Tenancy Agreement certainly, is not illegal.

73. It must be said also that the defendant were not a party to the Tenancy Agreement. The defendants facilitated that Tenancy Agreement but the parties were the plaintiff and the tenant. The defendant 's part in the Agreement was to facilitate the arrangements so that the Plaintiffs obligation of repayment of the loan was effected. Any claim of illegality of the Tenancy Agreement therefore have to involve bringing the notice of such claim served on the other party to the Agreement that has not been done here.

74. I find and hold that the Tenancy Agreements signed between the plaintiff and Tuvalu Aviation Investment Project on 4th March 2014 and 6th March 2014 and between the plaintiff and Ministry of Communication and Transport on 1st January 2016 were not illegal.

Counter -Claim and Relief

75. By its Counter- Claim, the defendant claims the following:

(a) The plaintiff as the principal contractual party to the loan agreement to complete the outstanding loan repayment in the amount of $35,509.00 to be amortized with interest to the amount of $59,789.16 within 3 years from 31st January 2022;
(b) The Plaintiff to repay as part of the conditions of his loan, the principal (SIL) loan of Kilipati Petelu in the amount of $37,090.00;
(c) The plaintiff to compensate the airfare incurred to bring the defendant's witness from Fiji in the amount of $2,000 inclusive of interest;
(d) The plaintiff to pay legal costs to be filed in Court if the Court orders;
(e) Any other orders as the Court deems fit.

76. I have already set out the relief sought by the plaintiff at the beginning of this judgement and I need not repeat them here. I need, however, to say that the Court's role is to assess damages based on the evidence before the Court on what actually is the damage that is claimed, the nature of the damage and the circumstances under which the damage is said to have been caused. An instance of this is the present case in the claim by the plaintiff of $80,400.00 reimbursement for overpaid loan repayment.

77. There is no evidence to show how the $80,400.00 came about. In response to that claim, Counsel for the defendant stated that the plaintiff's claim of $80,400 is the difference between the plaintiff's intended loan of $47,000 and the total loan repayment made by the plaintiff as of 31st January 2022 in the amount of $131,400.12. However the defendant's assertion has no support on the evidence. In any case, it is for the plaintiff to establish his claim and not for the defendant to lend support to the plaintiff to prove his claim. The Plaintiff must succeed on the strength of his case, not on the weakness of his opponent's argument.

78. The Plaintiff's claim of reimbursement in the sum of $80,400 for overpaid loan repayments cannot be sustained it is rejected.

79. The plaintiff next relief is for compensation in the sum of $57,495.15. This amount comprises the two loan variations of $15,051.35 and $30,443.80 together with $12,000.00 being for one year rent (2013-2014) during which the defendant refused to allow the Plaintiff's tenants to occupy the vacant rent space in the house in question.

80. First, as regard the amounts representing the two loan variation, the Court has already found both loan variations to be illegally made. However, the amounts of the two loan variations ($15,051.35 and $30,443.80) had been added to the initial loan of $51,188.00. The total loan which the plaintiff has been subjected to repay comprises the three amounts totaling $96,683.15. It is not possible to say how much of the repayments made by the plaintiff was in respect in respect of $51,188.00 loan and which repayments were the for the two loan variation amounts.

81. However, it can be ascertained that the validly executed loan of $51,188.00 repayable at 10% per annum for a period of 10 years comes to about $102,376.00. Taking that figure of $102,376.00 from the total loan repayments made by the plaintiff as of 31st January 2022 in the amount of $131,400.12, leaves a balance of $29,014.12 which can only be said to be part repayments made in respect of the two illegal executed loan variation amounts. That being the case, the amount of $29,024.12 must be repaid to the plaintiff and not the amount of $57,495.15 as claimed by the plaintiff. As to the plaintiff's claim for $12,000 for one year's rent (2013-2014) there is no basis for that claim. It is rejected..

82. I therefore find that the plaintiff is entitled to be compensated under this Head of his claim in the sum of $29,024.12.

83. The plaintiff next relief sought is for the sum of $50,000 to be paid to him for deceit, hardship, distress and inconvenience. The Court has does not find any evidence of fraud or deceit on the part of the defendant in this case. The Court has, however, found the conduct of the defendant's team as "unconscionable", in particular, in preparing and executing the two loan variation agreements in the amount of $15,051.35 and $30,443.80.

84. Apart from the illegality if these two loan variation, these variations added financial anxiety, burden, stress and inconvenience to the plaintiff and his Family. The evidence on this claim came from the plaintiff and Naginisi Siketi who is the the plaintiff's wife. Her evidence, both in her affidavit of 3rd November 2022 and her oral evidence in Court, shows that because of the loan situation, she observed changes in her husband's behavior and worried that the defendant would seize their land. She observed also that her husband's health became "more at risk" due to the worries over the loan.

85. I have observed the Plaintiff in Court during the trial and I formed the expression that the loan situation has some effect on him personally. The added stress on the family was borne-out from evidence from his wife. Claim for damages for hardship, stress and anxiety and inconvenience can be claimed by a party and the Court has the power to award damages or compensation in such claim. The Court in Tuvalu have recognized this as a number of cases including Lamese -v- Nanumaga [2008] TVHC 7; Civil Case 03 of 2006 (27 August 2008); Katea -v- Kaupule [2007] TVHC 1; Civil case 2 of 2006 ( 26 October 2007); Konelio and ORS -v- Kaupule of Nanumaga [2010] TVHC 9; case 13 of 2008 (23 March 2010). Those Tuvalu case have applied the general principle laid down in Rookes -v- Barnard [1964] UKHL 1 regarding damages.

86. I feel that the sum of $29,024.12 awarded to compensate the plaintiff for wrongful inclusion as loan repayments in respect of the two unlawful loan variations is sufficient to cover the plaintiff's claim for compensation or general damages for hardship, stress and inconvenience caused to the plaintiff. In addition to that general damages, there must be added a sum to reflect the aggravating factors as shown by the "unconscionable" conduct of the defendant in executing the two loan variations. In Lamese -v- Nanumaga the court awarded 50% of the general damages as aggravated damages. I do the same in this case and order 50% of the $29,024.12 which comes to $14,512.00 as aggravated damages against the defendant. The plaintiff is entitled to be paid $14,512.00 as aggravated damages in the present case.

87. I feel the plaintiff in the present case is entitled to a measure of punitive damages also. The purpose of punitive damages is to punish the defendant for its conduct or the conduct of its officer or servants for which a corporate defendant is liable. The conducts of the Officers concern in this case in preparing and executing the two illegal loan variations are not only unconscionable but they are also contumelious as well as aimed at profiteering for the defendant. The damages is in the discretion of the court and in the exercise of the Court's discretion, I feel the appropriate amount should be one of $10,000. It is so ordered.

88. The plaintiff's next relief is for an order that he is not liable to repay Kilipati's loan. The evidence before the Court is that the plaintiff has agreed with the defendant that as part of the condition or his loan to be granted was for him to repay Kilipati's principal loan of $37,090.00. Kilipati's total outstanding loan balance as of 2012 was $104,309.00. However the plaintiff and the defendant agreed that the plaintiff was to repay only the principal amount of $37,090.00 of Kilipati's loan. The plaintiff is not responsible to repay any amount beyond $37,090.00 of Kilipati's loan.

89. The plaintiff also ask for costs. Normally, costs follows the event. However, the award of costs is always in the discretion of the Court. I shall deal with this issue after I deal with the defendant's counter-claim.

Defendant Counter-Claim

90. In its counter- claim, the defendant seeks an order that the plaintiff complete the outstanding loan repayment in the amount of $35,509.00 to be amortized with interest to the amount of $59,786.16 within 3 years as from 31st January 2022. The defendant has not specified as to whether the $35,509.00 is the outstanding amount for the three loans that is the initial loan of $51,188.00 plus the two loan variations. If it is for the repayment of the loan of $51,188.00, then on the evidence before the Court, it has been fully repaid as at 31st January 2022. If the outstanding amount includes the repayment of the two loan variation amounts, then the plaintiff cannot be legally responsible to repay that outstanding amount and I so find.

91. The next counter-claim by the defendant is for the plaintiff to repay the principal amount of $37,090.00 of Kilipati's loan. I have already found that the plaintiff is clearly bound to repay Kilipati's principal loan amount of $37,090.00. An order to that effect must be issued.

92. The defendant's next relief sought is for the plaintiff to compensate the defendant for the cost of bringing the defendant witness from Fiji to Tuvalu in the sum of $2,000 AUD, together with interest. The evidence before the Court in support of this claim is a copy of the Receipt for the amount of $1,425.10 paid on 4th August 2017 for Paul Petueli' s airfares from Fiji to Tuvalu to attend Court when the matter first came before the Senior Magistrate Court. (See Paragraph 12 of Petueli's affidavit of 20th September 2022 and Annex 21) the case was subsequently transferred to this Court.

93. At the first hearing before the Court as on 8th November 2022, Mr Petueli was in Tuvalu and he left for Fiji after giving his evidence. The claim for $2,000 as costs of Petueli's airfares plus interest can only be for the airfares paid in August 2017 plus interest. There is, however, no evidence to show how the $2,000 came about. The Court is not to guess. However, the defendant is entitled to be reimbursed the expenses of bringing the witness to attend court on behalf of the defendant. In this case, the Court can only order that the defendant is entitled to be reimbursed the sum of $1,425.10 paid to bringing Mr Petueli from Fiji to Tuvalu for the purpose of attending Court as a witness for the defendant when this case first came before the Court. Although no interest rate is shown accompanying the claim the court exercise its discretion and awarded 5% interest per annual on the amount claimed. The defendant also claimed costs in this case. I will consider costs, claimed by both parties shortly.

Conclusion

94. Having considered the evidence, submissions by Counsel for both parties and for the reasons set out in this Judgment, the Court comes to the Conclusion that the Plaintiff has succeeded only in part in his claim against the defendant in this case. In the same vein, the defendant has also succeeded in part in its counter-claim against the plaintiff. The Conclusion by the Court is now reflected as Follows:

1. The Plaintiff's claim of fraudulent misrepresentation by the defendant fails and it is rejected.
2. a). The Loan Agreement in the sum of $51,188.00 signed on 25th September 2012 between the defendant and plaintiff is valid and enforceable against the plaintiff.
b). The first Loan Variation Agreement signed between the defendant and the plaintiff on 6th March 2013 in the amount of $15,051.35 is invalid and therefore unenforceable against the plaintiff.
c). The Second Loan Variation Agreement signed between the defendant and plaintiff on 19th August 2013 in the sum of $30,443.83 is invalid and therefore unenforceable against the Plaintiff.
3. The Plaintiff's claim of unlawful occupation of the Plaintiff's land by the defendant fails and it is rejected.
4. The Plaintiff's claim of Illegal Tenancy Agreement drawn up by the Defendant fails and it is rejected.
5. The Plaintiff's claim of reimbursement in the sum of $80,400.00 being for overpaid loan repayments fails and it is rejected.
6. The Plaintiff is entitled to be paid $29,024.12 as general damages arising out of the two Loan Variation Agreements which the Court has found to be illegal. The plaintiffs claim of $57,495.15 as pecuniary damages is rejected.
7. The plaintiff is entitled to $14,512.00 as aggravated damages arising out of the unconscionable conduct of the defendant.
8. The Plaintiff is entitled to punitive damages in this case in the sum of $10,000.00.
9.The Plaintiff is legally obliged to repay to the defendant the sum of $37,090.00 being the principal amount of Petelu Kilipati's loan.
Defendant's Relief.
10. The Defendant's counter- claim of $35,509.00 fails and it is rejected.
11. The Defendant's counter-claim that the plaintiff is legally obliged to repay Petelu Kilipati's principal loan of $37,090.00 succeeds.
12. The Plaintiff is to reimburse the airfares paid by the defendant for its witness, Paul Petueli from Fiji to Tuvalu in the sum of $1,425.10 plus interest of 5% per annum making it $1,852.63 (for 6 years since it was paid).

The formal Order After Trial has been separately issued to the parties, following this Judgment.

Dated 4th October 2023

Hon Sir John Muria
High Court Judge

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