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Pan Oceanic Bank v Nagive [2023] SBHC 15; HCSI-CC 194 of 2017 (10 February 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 194 of 2017

BETWEEN

PAN OCEANIC BANK
Claimant

AND:

JOHN ROSS NAGIVE
(Trading as the Ultimate Logistic & General Service)
Defendant

Date of Hearing: 15 December 2022
Date of Judgment: 10 February 2023

Mr Fakari’i for Claimant
No Appearance by Counsel Mr Rarumae for the Defendant

Keniapisia; PJ

JUDGMENT ON CLAIM TO RECOVER MONIES WRONGLY PAID INTO CLIENT’S ACCOUNT

Introduction

1. Defendant nor his/its legal representative turned up at trial. Counsel Fakari’i told the Court that defence Counsel Mr Rarumae contacted him to advise of his withdrawal due to lack of instructions. A filed notice of withdrawal was seen on file after trial.
2. The trial proceeded one sided, with leave of the Court granted under Rule 12.24 (b). Claimant proceeded to call its lone witness, without any foundational setting, as in an opening speech. The witness came late to Court. The witness prepared a sworn statement, but was not sworn and filed. Counsel was not in full court attire and had to seek leave. What’s worst is the witness was not acquainted with the issues in this particular account, because he only became a Loans Officer most recently. Later I discovered from my questioning that there are senior officers, who are not available to come to Court. I must be right to start thinking that claimant did not prepare its case properly for trial. Yet this is a 2017 matter.

Court’s understanding of the allegations from pleadings

3. Court’s understanding of this case is all based on the pleadings (Claim filed 10/05/2017 and Defence filed 18/08/2017). For there is no properly adduced or no evidence at all, produced to verify what is alleged in the Claim. There was no prior sworn statement filed. And the evidence produced orally at trial failed due to incompetent witness. The witness is not familiar with the issues in this account. Court’s understanding of the case based on pleadings (Claim and Defence) are: -
   • (i) Defendant has an account with the claimant bank. Account number is 011501000211. This was a savings account. It was opened on 30/10/2014 (paragraph 2 of Claim). On 24/12/2014, defendant deposited $185,000.00 into his/its account. Due to error in entry, the bank recorded that amount as double deposit. So, the total sum credited to defendant’s account was $370,000.00 instead of $185,000.00 (paragraph 4 of Claim).
   • (ii) Between December 2014 – October 2015, defendant used up all the monies in the account - meaning he also used the $185,000.00 the bank wrongly entered twice into his account (paragraph 5 of Claim). Claimant closed the account because defendant used up the bank’s money wrongly credited into the account. Claimant notified defendant of its closure action. Defendant was honest about the reasons for closure of its account - first account. In efforts to recover its money, claimant agreed with the defendant that it will open a second account for the defendant to be called an overdraft account (“OD”) whereby the $185,000.00 would appear as defendant’s debt to the claimant. A new contract on this second account, OD/debt arrangement was signed on or around 8/4/2016.
   • (iii) Defendant started making repayments into the second account - $5,000.00, $4,850.00, $95,000.00, $100.00 and $26, 000.00 (paragraphs 10 & 11 Claim). Defendant failed to continue making debt payments into the second account. So, claimant closed the OD (second account) and credited into the OD account the sum of $177, 015.95 (balance of the $185,000.00) with interest accumulating as normal (paragraphs 13 and 14 Claim). Claimant took court action to recover the $177, 015.95, plus interest daily on 10/5/2017, claiming for what was allegedly owing to it as of August 31^st 2016.

Lack of evidence to support the allegations made in the pleadings

4. The next question to ask is - Where is the evidence(s) to support the allegations? Let me look at the brief evidence adduced orally through claimant’s single witness at trial. Mr. Randwick Kinivava is a Loans Officer/Credit & Loans Officer/Compliance Officer, recently assuming this position in December 2022. Claimant’s Counsel led oral evidence in chief as follows: -
   • (i) Counsel showed to the witness a document and asked what the document is - witness explained it is Ultimate Logistic’s account. The account was opened on 11/12/2014. I understood that this was the print out or transaction history of defendant’s first account – Exhibit 1.
   • (ii) Counsel asked about the transactions that took place on 24/12/2014. What transaction are those or what was happening there (highlighted with pink and red highlighter on the account print out). Counsel asked the witness about the transaction in the sum of $370,000.26. Witness explained in evidence that “...this transaction is a manual entry transaction. And this transaction is-date deposited this money in this wrong account. The account is the Ultimate Logistics. But in order for the Ultimate Logistics to change this money he has to take an OD”. Witness continued “This account at 24 December 2014 is a manual entry transaction they credited to this account $370.00. But this account is a wrong account”. Counsel stop his examination in chief about the first account.
   • (iii) Counsel asked about another account, that he gave a copy to the witness. And asked what that document is. Witness replied, that that was another account, belonging to Ultimate Logistics, its second account (Exhibit 2), opened with an opening balance of $100.00. Counsel continued to ask what transaction took place on 29/07/2016. Witness says there is a fund transfer credited into the account. Witness answer was “On 29 July 2016 there is a bank transfer debit to the account. The $170.00 has been debited the subtract sign is the minus. It has been deducted from the recoveries account. This is an OD. OD is an overdraft limit that banks was usually given to customer”. And then Counsel stopped his examination in chief. At this point, I formed the view that this evidence was very brief and not helpful for me to proof the allegations, as I understood from the pleadings. So, I wanted to clarify from the witness.
   • (iv) Court’s questions – First I wanted to understand the general story behind the problem account before I came to seek specific answers to help me interpret the transactions on the account print outs (Exhibits 1 and 2) and connect to the allegations. Witness answer was, this case is taking too long as far back as 2014 - 2016. That he just came into his current role in December 2022. This case is about “mismatch of deposits”. Court asked witness to explain what is meant by “mismatch of deposits”. The witness was taking too long to answer what should have been a simple question about what he meant by “mismatch”. I was waiting. I understood what the pleadings alleged as “error of entry”. Now I was looking for evidences. The more I waited for answers, the more I begun to doubt the competency of the witness. So, I asked Counsel if the witness was prepared/briefed, so that he could assist the Court. Counsel Fakari’i said there are knowledgeable senior officers, who are not available to come. This witness only came on board recently. I was not willing to carry on asking questions of the witness. I had a suspicion that claimant did not prepare this matter well for trial. There was no opening speech to help me know what the frame work for the trial is (allegations, issues to resolve and evidence to proof allegations). The witness came late. Counsel was not in full attire. The sworn statement was prepared but not sworn and filed. So, cannot be used. Even the sworn statement is very brief not covering all the major allegations raised in the Claim. The briefly prepared unsworn statement has 2 main exhibits – Exhibits 1 and 2 - first and second account, admitted through witness in Court. I cannot interpret the 2 accounts (2 Exhibits), because I am not an expert. An expert, senior officer with knowledge about the 2 accounts must explain to me what can be seen in the account print outs, interpret it and connect to the allegations made against the defendant in the Claim. There are 2 accounts alleged. So, the evidence must tell me, what the 2 accounts are and relate to the allegations. Nothing was given to me in evidence. I cannot rely on what I read in the allegations (Claim). Claimant has the onus to produce the evidence to support the allegations made in the Claim.
5. Claim seeks relief to recover from the defendant the sum of $177, 015.95 together with interests (repeat and reaffirm paragraph 3 (iii)). In a nutshell, claimant did not produce sufficient evidence or no evidence at all to support the allegations made in the Claim. Consequently, I am not satisfied on the balance of probability that claimant wrongly entered $185,000.00 into defendant’s first account. The evidence did not tell me why recovery of $177,015.95 was pursued in this Claim, instead of the $185,000.00 initial entry alleged as error in the first account. As to the second account there is no evidence at all before me to explain the circumstances surrounding the opening of the second account. Where is the agreement for the second account? I do not understand what the second account was. There is no evidence to verify what is alleged about the second account in the Claim.

Conclusion and Orders

6. There is lack of evidence to support the allegations made in the Claim. Counsel Fakari’i submitted that the bank’s file on this account went missing. Counsel commenced his client’s case by submitting that the defendant admitted to the Claim. But that is not entirely correct. Defendant pleaded that only $185,000.00 belonged to him/it. The other half ($185,000.00) wrongly deposited, he did not know about it and regard it as a trap by the bank to lure it to pay extra money to the bank and have him caught off guard.
7. Accordingly, I dismissed the Claim for lack of evidence. I make no cost order.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE