At some stage in 1980 the
Defendant received a letter the Commissioner of Lands. nds. This pointed out
that the 24 months
would expire on 15th February, 1981 and, no doubt,
invited the Defendant to commence building. I say "no doubt" as
I have not
seen the original letter or a copy of it. This should have been produced in
court and if the matter were disputed
I have no hesitation in stating that
oral evidence of it would not have been acceptable. Even though the general
nature
of the letter was, indeed, not disputed, insofar as the Plaintiff's
counsel seeks to suggest that it contained a warning that
the premium as
well as the land might be forfeited, I am bound, in the absence of the
letter or notice to produce and
admit, to rule against that suggestion.
It is what the Defendant
decided to do after receipt of the letter that is in dispute. The case for
the Plaintiff is that
he decided to sell the land; the case for the
Defendant is that he decided to look for partners in a joint venture to
build a house on the land.
"Receipt Date 23 - 9 - 80
I agreed that the title of land
will be in my name until such time Mr J. MAEANIANI wishes to transfer it
into his own
name.
Signature: Jack Sae &nnbsp;; &bsp;
Witness: J. MAEANIANANIANI
Date: 23/9/80"
Theumstances surrounding
how that document came into existence are of fundamental importmportance to the
case and I must
return to them. There is a dispute as to whether the
Defendant returned to the Plaintiff $100.00 as part of the ground rent.
After receipt of the money the Defendant bought some equipment including a
generator and a power plane and returned with
them to Auki where he was
living. Since that time he has never been on the land nor visited it nor
made any enquiries
of the Plaintiff concerning the building on it.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
On 4th February 1981 the
Defendant, in nse to a service message from the Plaintiff, returned to
to
Honiara and executed
a charge over the land in favour of the Plaintiff's
Bank. He also signed a guarantee, guaranteeing to the Bank the Plaintiff's
debts up to $15000.00.
On asis of his earlier
credit from the Bank secured by his own house and with extended cded credit as a
result of the
documents to which reference has been made, the Plaintiff
started to erect a house on the site. In April when the roof was
on the
building the Plaintiff contacted the Defendant and asked him to complete the
transfer referred to in Exh. C. However
the Defendant did not do so. On 16th
April 1981 a letter was sent by the Plaintiff's solicitor requesting the
Defendant
to execute a transfer. Again there was no result. The Plaintiff
gives evidence of a number of other contacts with the Defendant
to get him to complete the transfer; all to no avail. Finally the Writ was
issued in this action on
14th August 1981. The present building on the land
has cost the Plaintiff in the region' of $35,000.00.
Those are the background facts
which are not in dispute. Howhe dispute about the remainemaining facts to be
framed?
As I have indicated the
substance of the dispute is whether there was an agreement between the Plaintiff and the Defendafendant
for a sale of the land to the Plaintiff or
whether there was an agreement between them for a joint venture to build a
house on the land. It is in this context that Exhibit C becomes of great
importance. The terms of that document, which was
signed by the Defendant, a
man of full legal capacity, constitute on any view a binding agreement for
sale of the land
to Plaintiff.
The geneule in law is that
where a person, who is of full legal capacity, signs a document thnt then it is
binding upon
him whether or not he has read it. The reasons for this rule
are obvious; there must be some degree of certainty in business
dealings and
a written document duly signed must be regarded as embodying certainty to
the extent that the law will regard
it as the formal acknowledgement by the
person who signs it that he accepts the contents of the document. However
there
are exceptions to this rule and one of these is when the person who
signs the document can establish that he signed the document
under a
mistaken belief as to the very nature of the document. This plea is
sometimes known as “non est factum” and is raised by the Defendant in
this case in relation to Exhibit C.
The leading modern case on the
subject is Gallie v. Lee (1970) 2 WLR 1078. In that case the older
authorities were reviewed by the House of Lords. A number of judgments were
given in which a variety
of words were used to embody the test to be
applied. Lord Wilberforce states it as follows (at page 1090 H):
"How, then, ought the
principle, on which a plea of non est factum is admissable, to be
stated? In my opinion, a document should be held to be void (as opposed to
voidable) only when the
element of consent to it is totally lacking, that
is, more concretely, when the transaction which the document purports to
effect is essentially
different in
substance or in kind from the transaction intended."
The learned Lord of Appeal said
as to the negligef the person signing the document at page 1091 H:
<
"In my opinion, the corre rule, and that which inch in fact prevailed until Bragg’s case, is that,
leaving aside negotiable instruments to which special rules may apply, a
person who signs a document,
and parts with it so that it may come into
other hands, has a responsibility, that of the normal man of prudence, to
take care what he signs, which, if neglected, prevent him from denying his
liability under the document according to its tenor.
I would add that the
onus of proof in this matter rests upon him, i.e., to prove that he acted
carefully, and not upon
the third party to prove the contrary."
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
As in this case there is a
suggestion that the Defendant is illiterate I should also refer to the
following passages in
the judgment at page 1092 C:
"The preceding paragraphs
contemplate persons who are adult and literate: thelusion as to such
per persons is that,
while there are cases in which they may successfully plead
non est factum these cases will, in modern times, be rare.
As to persons who
are illiterate, or blor blind, or lacking in understanding, the law is in a
dilemma. On the one hand, the law is traditionally,
and rightly, ready to
relieve them against hardship and imposition. On the other hand, regard has
to be paid to the position
of innocent third parties who cannot be expected,
and often would have no means, to know the condition or status of the
signer. I do not think that a defined solution can be provided for all
cases. The law ought, in my opinion, to give relief
if satisfied that
consent was truly lacking but will require of signers even in this class
that they act responsibly
and carefully according to their circumstances in
putting their signature to legal documents."
What becomes abundantly
apparent as one reads the speeches in case is that the burden is n is on the
person relying upon
the plea of non est factum to make out a "clear
and satisfactory case" (Per Lord Wilberforce at P. 1092 E) or produce "clear
and
positive evidence" (per Lord Hodson at p.1084 E) before the plea can
succeed. As this is a civil case the test to be applied
is whether the plea
is made out on the balance of probabilities.
In deference to the submissions
of counsel I should say something aboe application of the plea olea of
non est factum in Solomon Islands. At the early stage of development to
which we have attained we still have many people who are not familiar
with
the written word or with the implications of signing documents. Nevertheless
the words with which Lord Wilberforce
ends the passages cited above remain
entirely apt to our circumstances. On the facts of an individual case a
court may
be more ready in Solomon Islands to conclude that the consent of a
man from, for example, a rural area was truly lacking and
that nevertheless
he acted responsibly and carefully according to his own circumstances in
signing or affixing his mark
to the document. But the test remains the same;
it is the evidence and circumstances which differ. I venture to suggest that
a Solomon Islands Court would always approach the evidence as befits this
nation rather than as befits a country at a
different stage of development.
To return now to the facts of
the present case. The Defendant is a man of 42 years of age. He is a
carpenter and builder
at present living in Malaita although from 1954 to
1979 he lived in Honiara and was employed here on building work. He also,
as
I have said, is the operator of a number, of taxis in Honiara. The Defendant
says he is uneducated and able only to
read a small amount written in
language and to write. his own name. Otherwise he says he is
totally illiterate and must rely upon others to read letters to him and to
write
his letters for him. I must say that I treat this claim, as did the
Plaintiff, with a degree of scepticism. The Defendant is an
articulate and intelligent man who is, in the broader sense a
business man. He carries around with him an attached case containing
documents a diary and a calculator. When he showed
these items to me in
court and gave various explanations for them I was of at all convinced by
those explanations or
the manner of the Defendant that he was telling the
truth. I am not prepared to accept that the Defendant is as illiterate
as he
claims. Even accepting a degree of illiteracy I am satisfied that the
Defendant is a man of intelligence and acumen
who would be most unlikely to
put his name to a document, even at the behest of a relative, which he did
not understand.
The Plaintiff is, indeed,
related to the Defendant. He is an educated man holding a post as a
cartographer in the Lands
Department. It is suggested that this work would
give him access to information concerning the Defendant's difficulties over
the land but this has not been established. The Plaintiff struck me as a
straightforward man. He made a good impression
in the witnessbox.
The Defendant's case as to
hibit C is that it was signed at the Plaintiff's house afte after the two of
them had been to
the bank and withdrawn $2000.00. At the Trading Company
Snack Bar the sum of $1316.00 was handed by the Plaintiff to the Defendant
but this, says the Defendant, was for him to buy tools and equipment to work
on the house. The document was explained
to the Defendant by the Plaintiff
as a document to show, to the Bank how the $2000.00 had been spent if the
Bank asked
about it. The Defendant did not read the document but signed it
on this basis. It was, he said, not in his mind at all that
it was a receipt
for purchase price of the land.
The Plaintiff on the other hand
say document (which was written by him and signed at the SnackSnack Bar) was
explained
word for word to the Defendant who appeared to read it and then
signed it. There was absolutely no question of the purchase
of tools and the
sum handed over was the agreed purchase price for the land and the document
accurately reflected the
terms of the purchase.
How do thases fit
respectively against other facts? Clearly what was said at the initial
meeting in Auki would be
of importance. As to this we have the independent
evidence of Mr DILIANIANI. Despite some differences as to who came with whom
he was adamant that it was the Defendant who said he wanted to sell the land
and was prepared to do so to the Plaintiff.
This accords with the
Plaintiff's account.
The amount of money handed over
at the Trading Company, too, accordh the Plaintiff's account ount of a price
reached to
clear the Defendant's outgoings on the land.
The Defendant's account of the
purchase of tools and equipment and his immediate return with them to Auki
is inconsistent
even with his own evidence that the tools were to be used to
build a house on the land. Indeed the Defendant's conduct after
signature of
Exh. C has been of a man who has lost all interest in the land; he failed
even to visit it, let alone to
enquire of the progress of the building ,and
the cost of it.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Plaintiff on the other hand
has expended a considerable amount of money on the building, he now lives in
part and
receives rent for the other part. He has acted entirely as a man
who purchased the land.
There are two possible matters
which may be said to go against the Plaintiff. One is the failure to take an
immediate
transfer of the interest in the land on signature of Exh. C.
However this is explicable by the refusal of the Commissioner
of Lands to
consent to such transfer until there was a building with a roof on it on the
land; a refusal confirmed by
the Lands Officer who gave evidence. On this
basis, as the Defendant remained title holder of the land, the Defendant had
to sign the charge to the Bank. The other matter is that the Defendant also
signed a substantial guarantee of the Plaintiff's
debts to the Bank and this
could suggest that he must have retained an interest in the land and
building.
I have considered all these
matters and the evidence in the case. I have also observedheard the two
partiesrties. I have
no hesitation whatsoever in coming to the conclusion that
the transaction between the Plaintiff and the Defendant has always,
to the
knowledge of both of them, been one by which the title in the land would be
sold by the Defendant to the Plaintiff.
I therefore find that Exhibit C
expressed the agreement which the parties had reached. The Defendant was, in
my judgment,
well aware of what he was signing when he signed Exhibit C. He
has therefore failed to establish his plea of non est factum and is
bound by the terms of that document.
It follows that the Plaintiff
is entitled to an order for specific performancrmance requiring the Defendant to
execute
a transfer of his interest in the land to the Plaintiff.
The Plaintiff is entitled to
c
Daly CJ.
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