Tolule v Pego [1992] SBHC 45; HCSI-CC 27 of 1991 (13 November 1992)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 27 of 1991

TOLULE

-v-

PEGO AND LABASENI

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 27 of 1991

Hearing: 1 October 1992
Judgment: 13 November 1992

C. Tagaraniana for the Plaintiff
L. Peqo appeared in person
T. Labaseni did not appear

PALMER J: This is an application under Summons for judgment for specific performance of a contract of sale of land by Martin Tolule (the Plaintiff) against Leone Pego (First Defendant) and Tobias Labaseni (Second Defendant).

The facts briefly are as follows. On the 1st of May 1990 a sale and purchase agreement was signed between the Plaintiff and the First Defendant witnessed by the Second Defendant. On the 11th of May 1990 another sale and purchase agreement was executed and payment duly acknowledged in the presence of the Public Solicitor then John Muria Esq.

The Plaintiff then began extensive work on the land and expended an approximate total of $14,800.00. This included the construction of a house and establishment of a poultry farm.

The Plaintiff then realised that something was not in order. In his affidavit filed on the 27 June 1991 at paragraph 7, he stated and I quote:

“After having made the purchase in good faith, I later learnt the land subject to the purchase was already sold by the First Defendant to the Second Defendant and that the Second Defendant had sold it to another person from Malaita. This transaction between the First, Second and the third person was never disclosed or communicated to me by any of the parties involved.”

Paragraph 8:

“The First and Second Defendants deliberately and fraudulently induced me into entering the purchase agreement of the land.”

The basis of this application stems from the allegations of fraud against the First and the Second Defendants.

It is not known when the land was sold to the Second Defendant. There is no evidence of the date.

It is also not known when the land was subsequently sold by the Second Defendant to the third party. What is quite clear from the affidavit evidence of the Plaintiff is that the sale transactions between the First and Second Defendants and the third party occurred prior to the purported sale of the property by the First Defendant to the Plaintiff in May of 1990.

There is no dispute as to the description of the land. It is called VERAMAMALA LAND.

The First Defendant confirmed that he had sold the land to the Second Defendant. The sale and purchase agreement made with the Plaintiff he said was all done and arranged by the Second Defendant. He did not know what was going on. He merely appended his signature to the agreement because he was asked to by the Second Defendant.

The Second Defendant was not present at the hearing, and so it could not be ascertained when the sale to the third party took place.

What is clear however, is that title had validly passed from the First Defendant to the Second Defendant, and validly passed from the Second Defendant to the third party, well before the transactions of the 11th May 1990.

Title therefore to the land had validly transferred to the third party and vested in him, when the transaction with the Plaintiff was entered into.

On the 11th of May 1990 therefore, the First and Second Defendants had no right in law whatsoever to execute a sale and purchase agreement with the Plaintiff. They had no title to the property to pass or transfer to the Plaintiff. There was clearly fraud involved in their part.

Accordingly, if the First Defendant had no rights or title over Veramamala land, then no valid title could ever pass to the Plaintiff in spite of the agreement.

Subsequently, no decree for specific performance can ever be validly and justifiably made by this Court. The agreement is a nullity from the start. No claim can be made against the bona fide purchaser for value of the land from the First and Second Defendants.

The Plaintiff’s action against the Defendants is one founded only in damages.

The status of the Second Defendant needs to be clarified before any award for damages are made.

The Second Defendant was present at the first signing of the agreement for sale and purchase dated 1 May 1990. He appended his signature as a witness to the signatures of the Plaintiff and the First Defendant.

On the 11 May 1990, the Second Defendant again witnessed the signing of the sale and purchase agreement.

During those times, he did not inform the Plaintiff that he had bought the land from the First Defendant and that subsequently he had sold it to a third party. He was clearly a party therefore to the fraud effected against the Plaintiff.

In fact the statement of the First Defendant seemed to point a finger at the Second Defendant as the person masterminding the fraud.

It is quite obvious to me that both Defendants had conspired together to deal fraudulently with the Plaintiff out of greed and selfishness.

The appropriate remedy for the Plaintiff here is damages. I am satisfied he has expended a lot of money in reliance on the sale of the land. He lists his claim as follows:

Consideration: $1,000.00

Capital Expenses on Poultry and House: 11,510.00

Running Expenses: 2,344.70

TOTAL $14.854.92

The assessment is not disputed I consider it to be reasonable. I am aware that no claim for punitive damages has been asked and so I will not consider that though it could very well have been justified from the way the fraud was perpetrated.

Judgment is given against both Defendants for the sum of $14,854.92 plus court fees of $100.00, payable in 28 days.

(A. R. Palmer)
JUDGE