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Magu v Tipaika [2018] SBHC 108; HCSI-CC 412 of 2014 (6 December 2018)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 412 of 2014

FELIX MAGU
(As owner of Fixed Term Estate in parcel No. 191-008-249, Lot 1674)
Claimant

V

TINA TIPAIKA
(Representing herself and those occupant residing in parcel No.191-008-249)
Defendant

TINA TIPAIKA
(Representing herself and the Occupants Residing on parcel No. 191-008-249)
Cross-Claimant

FELIX MAGU
(As owner of the Fixed Term Estate in parcel No. 191-008-449, Lot 1674)
First Defendant

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Second Defendant

ATTORNEY GENERAL
(Representing the Registrar of Title)

Date of Submission: 8 May 2018 and 24 September 2018
Date of Judgment: 6 December 2018

Mr D. Marahare for the Claimant and First Defendant
No one for the Defendant/Cross-Claimant
Mrs V. Muaki for the Second and Third Defendants in Cross-Claimant

JUDGMENT

1. This is a case where Mr. Wale from Wale and Associates represented the Defendant initially. Since Mr. Wale had departed from being a private law practitioner the file was handed over to Mr. Tagini of Global Lawyers.
2. Mr. Wale had filed a defence with counter-claim and cross-claim.
3. Since Mr. Wale’s departure, it would seem Mr. Tagini was taking over the case. On 17^th August 2017 Mr. Tagini affirmed he was taking over the file. Since then he had absent himself until 8^th March 2018 when he was present at the mention date. He informed the court that he was yet to file a notice for change of advocate. Until today no notice for change was ever filed by Mr. Tagini. Therefore was never part or involved in filing of any written submissions.
4. Surely his client must suffer legal consequence because of that failure to administer the case and serve the defendant diligently. If Mr. Tagini found extra load on, he should not have accepted taken up the file from Mr. Wale and let others do. From the beginning Mr. Tagini had displayed a none active role participating in moving the case forward for hearing.
5. Because of his failure to defend the claim and prosecuted his client’s counter-claimed and cross claim, therefore must be dismissed accordingly. Other issues raised by the Claimant and the second and third Defendants are not necessary to be dealt with because of none participation by the Defendant or her Counsel. In other words, by the inadvertent act manifested, the Defendant is taken as accepting the entire claim.
6. The Attorney General who represent the second and the third Defendants in the counter claim and cross claim must therefore fully benefit out from Counsel Tagini’s behavior hence dismiss any liability against them.
7. It therefore must create a similar legal beneficiary to the Claimant in the original claim. The Defendants’ defence, counter-claim and cross claim against the Claimant must also be dismissed.
8. Without hesitation I must accept the Claimant’s case and grant the orders prayed for. That conclusion does not come easy. I am obliged to expose the claimant’s case which I have accepted as a true position of the current case.
9. I noted from the submissions that this case concern a state land Parcel N0. 191-008-249 located at Ngossi area, Honiara. The Claimant acquired the title to the property from or Commissioner of Lands after 1^st October 2012, for a term of 50 years.
10. The following facts directly manifest activities done which led to the registration of the title. On 16^th August 2012, the Commissioner of Lands made an offer by way of a letter to the Claimant for the purchase of the property. The claimant accepted the offer by conduct, making payment of the required amount of $ 6,562.50 in or around 28^th August 2012.
11. The Defendant then entered the land and erected a dwelling house and continued to occupy the property without the knowledge of the Claimant and the Commissioner of Lands.
12. The Claimant became aware of the Defendant’s occupation of the property later in 2014; see annexure “9” being a letter from the Public Solicitor Office dated 10^th February 2014.
13. The counter-Claimant’s case is that she relies on the purchase agreement she made with KK Real Estate Properties Ltd who was duly appointed agent of the Commissioner of Lands, for the purchase of Lot NO.1532/X/h.
14. There are two significant things to be noted. One is the Defendant’s counter-claim filed on 3^th March 2015, paragraph (1) that KK Real Estate Proprietors Ltd was described as an agent of the Commissioner of Lands. Secondly in paragraph (B) of the purchase agreement KK Real Estate Proprietors was realized as a legal owner of the property.
15. If KK Real Estate Proprietors was an agent of the Commissioner of Land then there must evidence by way of document of such “agency agreement” attach to any sworn statement? There must also be evidence to show how the agency relationship works. Mr. Likaveke’s sworn statement denied any such agency existed.
16. If KK Estate Proprietors was the legal owner of the properties then there must be legal instruments affirming such assertion. There is nothing available in evidence.
17. Those issues are pertinent to validate any purchase agreement executed by the Defendant and KK Real Estate Proprietors Ltd on 1^st July 2004.
18. In the absence of Mr. Tagini, questions related to the legal relationship between the Commissioner of Lands and KK Estate Proprietors Ltd cannot be verified neither is explained. However, one conclusion which can be drawn is that, if KK Estate Proprietors Ltd was the legal owner of the land, therefore the sales agreement was a direct purchase transaction which cannot be at the same time, KK Real Estate Proprietors acting as agent for the Commissioner Lands. And the purchase transaction was far from being promoting such relationship.
19. Whilst the case for the Defendant/Counter-claimant remains dwindles, the Claimant stood firm. His application for the land was dated 23^rd November 2010. The Physical Planning Office by letter dated 27^th November 2012 made recommendation after inspection, the site is physically clear without any development.
20. On 23^rd November 2010 the Claimant applied for the land. On 4^th May 2012 the Claimant’s application was approved. On 22^nd May a survey initiation form was submitted. Valuation assessment was conducted and was done on 9^th July 2012. A formal letter of offer was then made to the Claimant on 16^th August 2012.
21. I do not seem to perceive any validity in the sales agreement relied on by the Defendant. The involvement of KK Real Estate Proprietors Ltd in Crown land would have better explanation if Mr. Tagini fully participated in this case. He chose not to.
22. As per see, the agreement does not have a stamp duty; hence bear a status contrary to requirement under S.9 of the Stamp Duties Act (cap 136).
23. In all, I am not satisfied that this is a case where the register can be rectified and the name of the Claimant as a registered owner to be substituted with the name of the Defendant.
24. I must therefore grant the reliefs sought by the Claimant and dismissed the counter-claim and cross-claim filed by the Defendant against the Claimant and the second and third Defendants.

ORDERS:

1. Grant order for eviction of the Defendant with her family, relatives, servant and or agents and vacant possession of Fixed Term Estate in PN 191-008-249, and be given to the Claimant forthwith.
2. Permanent injunction is granted restraining the Defendant by herself, her relatives, friends and invites from re-entering the said property or any parts thereof, for any purpose whatsoever, unless by express consent of the Claimant, or otherwise by order of this court.
3. Order for damages for trespass to be assessed or mesne profit with interest at 5% from the date of this order for eviction until such time of eviction.
4. The Defendant’s counter-claim and cross-claim be dismissed as against the Claimant and the first and second Defendants.
5. Costs incidental to this action be paid to the Claimant and the second and the third Defendants.
6. Case adjourns to 7^th February for mention.

THE COURT.