Wale v Fagani [2007] SBHC 33; HCSI-CC 229 of 2006 (17 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 229 of 2006

ANTHONY WALE AND OTHERS

v

AUGUSTINE JACK FAGANI

Date of Hearing: 17th May 2007
Date of Judgment: 17th May 2007

A. Tinoni (Public Solicitor) for the Defendant
A. Radclyffe for the Plaintiff

Judgment on claim for possession of registered land and on defendants late defence

Brown, J: In the affidavit Mr. Fagani satisfies me that he has been to see a lawyer. He had an appointment after the judgment for the plaintiff was given late in 2006. It is a pity he had no opportunity to see a lawyer before he did, earlier this year. The first papers were served a very long time ago. It is clear to me that Mr. Fagani realises the importance of coming to court since this court is the appropriate place where disputes of this kind are resolved, if not by agreement between the parties then by court order.

In this case it is again clear to me that there is no possibility of agreement and consequently there must be a court order.

The court order which the plaintiff obtained on the 24 November 2006 was for the defendants to leave the land and take their building with them. Mr. Fagani by his affidavit plainly states that he does not wish to leave for he has bought the land from the plaintiff. He says he paid about 21 K of the agreed sum of 30,000K for the land.

That agreement he said was verbal.

The ownership of the land on which the home of Mr. Fagani was build has not been transferred to him.

Mr. Wale says Mr. Fagani has not kept to his agreement to pay him for the land. On Mr. Fagani’s statement this is so. There is consequently what is called a breach of the agreement for that the balance of the moneys has not been paid. Quite some time has elapsed since Mr. Fagani first went onto the land to build.

To be fair, the Parliament of the Solomon Islands has passed an Act called the Land and Titles Act which deals with Registered land. For this is not customary land and rights to the land do not accrue by possession alone. There must be a written agreement to sell or buy the land if it is Registered land. In this case there is no written agreement. Mr. Raclyffe very fairly says that on the fact of payment of some of the moneys and the erection of a home, there may be part performance of the agreement to buy, but in this case any agreement fails for it is not in writing as required by the Act

There is then no apparent defence at law, to the claim of the plaintiff for recovery of possession of his registered land.

If it was customary land, then arguments which are recited in that affidavit would be important.

In Honiara however, where the land is mostly registered, persons who occupy such land must be careful to follow the law as it applies to registered land. In this case the defendants have not followed the law and I cannot set aside the judgment for possession on the ground of this verbal agreement where money has not been paid.

So far as delay is concerned, the defendants have sought legal advice and their story in Mr. Fagani’s affidavit is before me. There is no need for me to deal with delay.

The order of the court given in November must stand.

There are no grounds on the material which I have read, to set aside that order. The application of the defendants is refused.

The defendants shall pay the plaintiff’s costs.

THE COURT