Wales v Feratelia [2005] SBHC 56; HCSI-CC 120 of 2005 (7 April 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 048 of 2004

MIRIAM WALES
Applicant

-v-

BOB FERATELIA
Respondent

Honiara:

Date of Hearing: 23 March, 7 April 2005
Date of Judgment: 7 April 2005

Miriam Wales in person
Bob Feratelia in person

Originating summons seeking leave for grant of Wit of Possession of house property

REASONS FOR DECISION

Brown PJ: Order 49 r 1 of the High Court Rules provides:

1. (1) A judgment or order that a party do recover possession of any land may by leave obtained on ex parte application to the Court supported by affidavit, be enforced by writ of possession in accordance with Form 4 in Appendix G.

The material relied upon by the applicant, one of the joint owners, Miriam Feratelia Wales is that affidavit of hers, sworn on the 2 March 2005.

On the hearing of this ex parte motion, in open court, the Respondent Mr. Bob Feratelia was in court and appeared on his own account. He was appraised of all the matters which the court had before it and I am satisfied, had a copy of all the material filed by Miriam Feratelia Wales (the sister in law of the respondent). I adjourned the matter, since the other registered proprietor of the house the subject of this application for an order for eviction of the said respondent, had not joined in the application.

Subsequently on the 4 April 2004 an affidavit of Robert Wales, the other joint owner of the house, (and the brother of the respondent) in no uncertain terms, gave his full support and consent to his spouse, Miriam Wales’s (the applicant) application for a writ of possession of the property.

Put shortly, the owners had entered into a tenancy agreement with the Commissioner of Lands on behalf of the SI Government, to lease their house property at Parcel 191-024-18 for a period of 6 months commencing on the 1 July 2004 and determining on the 30 December 2004. It appears the respondent, an employee of the Government and a clerk in this High Court was allowed into possession of the premises under an arrangement with the Government, as “occupier” in terms of the Agreement.

Since the determination of the lease on the 30 December 2004, the respondent “occupier” has remained in possession despite the various attempts of the house owners to have him and his family leaves for he has no agreement with the owners to remain and the rental previously paid by the Government has ceased.

I am satisfied the respondent has no doubt his sister in law and brother want him out. He has refused to move and, despite various attempts, the owners have, quite properly come to this court seeking an order under the empowering provisions of O49.

The respondent says he is entitled to remain for he has an interest in a “part share of $86,000 as part payment over a family Registered Family Fishing Vessel that was damaged during the tension at Marau that are held by Robert.”.

It would seem that money had been paid to the DBSI Bank Loan since the house property had been secured by mortgage given by the owners to the Bank. The respondent Bob Feratelia says “our family does not consent to this” but none of these family disputes can detract from the issues before me.

The owners of the registered house property Miriam Wales and Robert Wales had a tenancy agreement with the Commissioner of Lands by which the “occupier” had possession of the property. There was no agreement for the continued occupation of the respondent since the expiration of the Tenancy Agreement.

There is no implied agreement for the occupier has not paid rent, accepted by the owners in terms of any such arrangement for the tenor of the letters and notices clearly shows the owners want the respondent out of the premises. No implied tenancy can be found on these facts.

The owners are in a very difficult financial circumstance since they had no rent from the occupation of the premises since the end of the Agreement in December 2004. The Bank holding the mortgage is not concerned about any supposed family dispute; its agreement in the mortgage requires the Wales to meet their repayments.

I am further satisfied in terms of O49 (2) that notice of the Wales intention to recover possession has been given all those in actual possession of the property; the respondent Bob Feratelia and his family.

I note that the applicant’s claim for relief does not include a claim for loss of profits. I should say that I have listened to all the parties in these proceedings and read the later affidavit of Bob Feratelia, filed on the 6 April 2005 ( notwithstanding that the applicant had not been served with a copy before the hearing in breach of the Rules of Court) and his written submissions. His argument about family affairs and a fishing boat loan are separate matters to his right if any, to remain in these premises. He sought to argue about the state of the premises when he was lawfully in occupation, an argument perhaps relevant to his agreement with the Commissioner of Lands (for he was a licensee under the Commissioner) but irrelevant again to these proceedings.

For the reasons that I have given, I am satisfied he has no right to remain.

I consequently order the respondent Bob Feratelia his family and any other persons residing in the premises with his permission at Mbokonavera No. 1, Honiara more particularly described as property comprised in Parcel 191-024-18, deliver up possession of such house property and appurtenances on such land (and vacate such land and house property) to Miriam Wales and Robert Wales, forthwith and that the applicants have the costs of this application.

I further order that, in terms of 0.49 1.2, the applicants prosecuting these orders shall be entitled to sue out a writ of possession on filing an affidavit showing due service of these such orders, on Bob Feratelia and stating that these orders have not been obeyed.

BY THE COURT