Valekegolomo v Jama [2021] SBHC 169; HCSI-CC 664 of 2019 (28 January 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Valekegolomo v Jama
Citation:
Date of decision:	28 January 2021
Parties:	Ephrem Valekegolomo and Rose Valekegolomo v Kili Jama, Resili Island and Richard Zama
Date of hearing:	28 January 2021
Court file number(s):	664 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	I. The Claimants are entitled to possession of the Fixed Term Estate in Parcel No 192-018-61 including any permanent building on the land. II. The Defendants together with their family members, relatives, tribal members, servants and/or agents and associates are evicted from the land evicted from the land being the Fixed Term Estate in Parcel No 192-018-61. III. The Defendants together with their family members, relatives, tribal members, servants and/or agents and associates are permanently restrained from entering onto or otherwise trespassing on the Fixed Term Estate in Parcel No 192-018-61 as from 11.59pm on 5 February 2021. IV. The Defendants have until 11.59pm on Friday 5 February 2021 to remove any personal property or buildings or other fixtures belonging to them from the land. Any property, buildings or other fixtures left on the land after 11.59pm on 5 February 2021 shall at that time be the property of the Claimants. V. A penal notice is to attach to orders I, II, III and IV so that in the event of a breach of one or more of those orders, the Sheriff and the Police are to assist the Claimants recover possession of the Claimants’ property. VI. The Sheriff is authorized to enter on to the land being the Fixed Term Estate in Parcel No 192-018-61 to deliver possession of the land to the Claimants after 11.59pm on 5 February 2021. This enforcement order is to be displayed at the entrance to the property no later than 11.59pm on Friday 29 January 2021. VII. The Defendants are to pay the Claimants Costs on the standard basis as provided in Rule 24.8.
Representation:	J Iroga for the Claimants M Tahu for the Defendant
Catchwords:
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 664 of 2019

BETWEEN

EPHREM VALEKEGOLOMO AND ROSE VALEKEGOLOMO
Claimant

AND:

KILI JAMA, RESILI ISLAND AND RICHARD ZAMA
Defendant

Date of Hearing: 28 January 2021
Date of Decision: 28 January 2021

J Iroga for the Claimants
M Tahu for the Defendant

Lawry; PJ

DECISION

Introduction

1. On 11 September 2019 the Claimants entered into an agreement to purchase the Fixed term Estate in Parcel Number 192-018-61 [“the land”].
2. Paragraph 6.1 of that agreement required the sellers of the land to give vacant possession of the land to the Claimants within 14 days of settlement. Paragraph 7.1 contains a warranty from the sellers that at the time of execution of the agreement they had no knowledge of any easements, liabilities and rights existing that would affect the interest in the land except those shown in the certificate.
3. The certificate shows no interest in the land that may be enjoyed by the Defendants.
4. The purchase was settled and on 13 September 2019 the title to the land was transferred to the Claimants.
5. On 24 September 2019 the Claimants found that the Defendants were residing on the land. They were residing on the land without the permission of the sellers.
6. On or about 4 October 2019 the Claimants served a notice to vacate the land on the Defendants. The Defendants did not vacate the land.
7. On 21 November the Claimants filed the Claim which is before the Court. That Claim was served on the Defendants on 22 November 2019. The Defendants have not filed any response nor any defence.

Application

8. On 23 January 2020 the Claimants filed an application for Default Judgment pursuant to Rule 9.17. The application was listed for hearing before Justice Higgins on 9 March 2020. The application was not heard on that date. It appears that the reason was because the defendants had instructed counsel. The case has been called on a number of occasions since 9 March 2020 and still no response nor defence has been filed.
9. Counsel confirmed that as at today’s date the Defendants have still not vacated the land. No explanation has been put forward as to why the Defendants continue to occupy the land.
10. In these circumstances, having heard counsel for the Claimants and counsel for the Defendants and having read the application for a default judgment together with the sworn statement of George Leamana proving service of the claim on 22 November 2019 and recording that the Defendants have filed no response nor defence to the claim filed on 21 November 2019, the Court orders:
    1. The Claimants are entitled to possession of the Fixed Term Estate in Parcel No 192-018-61 including any permanent building on the land.
    2. The Defendants together with their family members, relatives, tribal members, servants and/or agents and associates are evicted from the land evicted from the land being the Fixed Term Estate in Parcel No 192-018-61.
    3. The Defendants together with their family members, relatives, tribal members, servants and/or agents and associates are permanently restrained from entering onto or otherwise trespassing on the Fixed Term Estate in Parcel No 192-018-61 as from 11.59pm on 5 February 2021.
    4. The Defendants have until 11.59pm on Friday 5 February 2021 to remove any personal property or buildings or other fixtures belonging to them from the land. Any property, buildings or other fixtures left on the land after 11.59pm on 5 February 2021 shall at that time be the property of the Claimants.
    5. A penal notice is to attach to orders I, II, III and IV so that in the event of a breach of one or more of those orders, the Sheriff and the Police are to assist the Claimants recover possession of the Claimants’ property.
    6. The Sheriff is authorized to enter on to the land being the Fixed Term Estate in Parcel No 192-018-61 to deliver possession of the land to the Claimants after 11.59pm on 5 February 2021. This enforcement order is to be displayed at the entrance to the property no later than 11.59pm on Friday 29 January 2021.
    7. The Defendants are to pay the Claimants Costs on the standard basis as provided in Rule 24.8.

By the Court
Justice Howard Lawry
Puisne Judge