Fraser v Ritaleven Investments Ltd [2007] SBHC 20; HCSI-CC 598 of 2005 (19 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 598 of 2005

RODNEY MAURICE FRASER & ALLAN FRASER

-v-

RITALEVEN INVESTMENTS LIMITED, WEST WOOD ENTERPRISES LIMITED
(Trading Under The Name Westwood Enterprises Company Ltd)

Date of Hearing: 19 April 2007
Date of Ruling: 19 April 2007

J. Sullivan QC with R. Kingmele for the Plaintiffs
P. Lavery for the 1st Defendant
W. Rano for the 2nd Defendant.

RULING

Summons for declaratory orders for ownership of registered land and for possession.

Brown, J: I’ve heard what Mr. Lavery & Mr. Rano say, and am concerned that the cross claim, (stood over for trial at a late date), raises issues it would seem, which reflect adversely on lawyers not present today. That will not affect the plaintiffs’ right to proceed since such issues solely affect the two defendants named in the cross-claim proceeding which can without prejudice be excised from the plaintiff’s claim today. The 1st defendant, by its draft defence and Indemnity notice (cross-claim) (which I treated as the defendant’s submissions for that the defence is out of time and leave was refused to allow it to be filed in non-compliance with the Rules in any event) effectively conceded the plaintiff’s case against it for the reasons argued on the evidence of the plaintiff. Its claim for indemnity then will need to be properly pleaded if the matter should go to trial.

I propose to make orders on the plaintiff’s claim today since I am satisfied on the material read and counsel’s argument that the plaintiffs’ claim to declarations and consequential orders are proper, supported by the law and should be made. I said I would give my written reasons at a later date and elucidated reasons have been consolidated in this judgment.

The plaintiffs claim declaratory orders to enable them to be registered as proprietors of "registered land" (in terms of the Land and Titles Act) for that the 1st defendants had agreed to sell and had completed a form of transfer of the property sold for value in 1998 to the plaintiffs but through circumstances without fault of the plaintiffs, the transfer document was lost and the subject land was purportedly again sold to the 2nd defendant much later. The plaintiffs also seek possession of the land since the 2nd defendant refuses to leave pending order.

Clearly the 1st defendant admits the plaintiff is entitled to become the registered proprietor of the property in issue. The equitable interest shown on the various documents clearly satisfies me that the plaintiff should succeed against the 1st and 2nd defendants.

The 2nd defendant has filed a defence and while that has no affidavit verifying I have listened to Mr. Rano’s argument. I am not satisfied however there is any serious issue to be tried in that case for the 2nd defendant was clearly on notice of the caveat registered on the title by the plaintiff at the very least and the plaintiffs’ equity was first in time to any supposed equity of the 2nd defendant.

The plaintiff is entitled to judgment by default against the 1st defendant.

They are entitled to summary judgment against the 2nd defendant.

I also order the plaintiff shall have costs against both defendants.

I make consequential orders in terms of para’s 3 to 5 of the claim for relief in the summons.

I stand the 2nd defendants cross claim over generally with liberty to restore on 14 days notice.

THE COURT