MRS MARY POLOSO
(T/A - TESTIMONY MOTEL
LIMITED)
High of Solomon Islands
Before: Frank O. Kabui, J.
Hearing 18th September 2001
Judgment: 21st September 2001
Mr G.itoa for the
Plaintiff
Mr Nori for the Defendant
JUDGMENT
By Summons filed on d on 26th June 2001, the Plaintiff seeks the
following order -
1. The Plaintiff' have leave
to enter judgment hereiinst the Defendants in the the sum of SBD 488,311.34
together with
interest thereon at the rate of sixteen percent (14%) per
annum from 31st March 2001 up to and including the date of payment
and
costs;
3. No tender is to be
accepted without thet the further leave of a Judge in Chambers;
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4. The Defendants
immediately deliver to the Plaintiff' vacant possession of the property in
Parcel Number 191 - 015 -
52;
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5. The Defendants, their
servants, agents, invitees, licensees or others enterentering the land in Parcel
Number 191 -
015 - 52 under the Defendants' authority forthwith vacate the
same and forthwith remove all their chattels from the same;
6. The Defendants, their
servants, agents, invitees, lees or others entering the the land in Parcel
Number 191 - 015
- 52 under the Defendants' authority be permanently
restrained from entering the said land;
7. The Honiara City Police
mmander and all Police Officers under his direction forthwirthwith upon receipt
of any order made
pursuant to orders 4, 5 and 6 hereof shall attend and
enforce as is reasonably necessary for such purpose upon request by the
Plaintiff or its solicitor;
8. The Defendants pay the
Plffs costs of and in connection with this action including ting this
application;
9. Such further orders or
other order as this Honourable Court shall deem meet.
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The Facts
The Plaintiff is the
Development Bank of Solomon Islands (the DBSI). The Defen between 7th
April 19il 1989 and 29th, March 1994 obtained six loans from the DBSI
in different amounts. The first loan was $110,000.00. The term of that loan
was 10 years to be repaid by a monthly instalment of $1,700.00. The interest
rate was 14% per annum on reducing balance.
However, the DBSI reserved the
right to revise and review the interest rate during the term of that loan.
The second
loan was $28,230.00. The term of that loan was 3 years with a
monthly repayment instalment of $980.00. The interest rate was
14% on
reducing balance reserving the right to revise and review the interest rate
by the DBSI. The third loan was $30,585.00.
The term of the loan was 5
years. Repayment monthly instalment was $3,300.00 amortised. The interest
rate was 14% on
reducing balance. At this stage, the Defendant's total
commitment to the DBSI stood at $142,867.00. The fourth loan was $40,000.00.
The term of the loan was 10 years. Repayment arrangement per month was
$3,000.00. The interest rate was 14% at the discretion
of the DBSI. The
fifth loan was $12,000.00 thus increasing the total loan commitment to
$198,321.00. The term of the
loan was 10 years with an interest rate of 14%
on a reducing balance variable at the DBSI's discretion. The sixth loan was
$25,000.00. The term of the loan was 8 years. The interest rate was 14%
variable at the discretion of the DBSI. The repayment
instalment per month
was $4,610.00. The Defendants had not paid their loans in full and by 31St
March 2001, the Defendants
owed the DBSI $448,311.34 with interest.
The Plaintiff�s Writ of Summons
and Statement of Claim
The Plaintiffs Writ was filed on 10th May 2001. It was not indorsed. It was served on 14th May 2001. The
Defendanendants entered
an appearance on 21St May 2001. The Plaintiff filed an
Amended Writ on 20,th, June 2001. It was served on the Defendants
on 21St June 2001. The Defendants entered an appearance on 10th June 2001.
This date is clearly ante - dated. It might have been a mistake. Apart from
that, appearance was clearly entered by the Defendants
to this action.
The Plaintiffs applicaby
Summons for Orders of the Court
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The Plaintiff is seeking relief
under Order 14(1)(a) of the High Courtil Procedure) Rules 1964 (t64 (the
High Court Rules).
Whilst the Writ of Summons is in the general form, its
nature appears to be that of a specially indorsed Writ though it is
not
indorsed. This was not challenged by the Defendants. The contents of the
affidavits filed in support of the application
are not strictly in the
manner required by Order 14(1)(a) of the High Court Rules. That is to say,
verification of the
cause of action, the amount claimed and the belief that
there is no defence to the Plaintiff�s action. These are the matters
to be
covered in an affidavit. They have not, in my view, been properly covered in
the affidavit of Mr Ne'e filed on
26th June 2001. Again, these defects were
not objected by Counsel for the Defendants Mr Nori. Counsel for the DBSI, Mr
Fa'aitoa had made it clear that this application was being made under Order
14(1)(a) of the High Court Rules. The Defendants
filed their defence on 18th
June 2001. The defence is that the Defendants had paid $294,235.00 being
sufficient discharge
of all the loans. This position is based upon the
argument that the use of compound interest by the DBSI had increased the
principal instead of reducing it. That is to say, the use of compound
interest had not been part of the terms of the
loans as agreed by the
parties and so the Defendants do dispute liability as to the sum of
$448,411.34. The Defendants
did not file any affidavits but their Counsel Mr
Nori, pointed out that a defence was already apparent upon the materials
before the Court, as borne out by the Defendants' formal defence filed on
18th June 2001. There is clearly a dispute as
to facts. (see Jones v
Stone [1894] UKLawRpAC 2; [1894] AC 122). There may well be elements of the law of contract
also to be considered in determining what the true facts are in this case.
I
feel that the Defendants should be given leave to defend the Plaintiffs
action. I would dismiss the Plaintiff�s application
for this reason. I would
grant leave for the Defendants to defend the Plaintiffs action. However, the
fact is that the
Defendants had filed a defence in advance of leave. I would
treat the defence as having been properly filed in view of my having
granted
leave to defend the Plaintiff�s action. Clearly, this case is a claim for a
debt or a liquidated demand in money
payable by the Defendants to the
Plaintiffs. As such, I would treat the affidavits filed so far by the
Plaintiff and
defence filed by the Defendants as the pleadings. The
Defendants will be at liberty to file any affidavits, if any, within
14 days
and the Plaintiff to file a reply, if any, within 7 days, thereafter. The
Plaintiff will within 14 days thereafter
set the action for trial. Cost will
be in the cause.
F.O. Kabui
Judge
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