HIGH COURT OF SOLOMON ISLANDS

Case name: 	Public Trustee v Tahuniai	
		
Citation:		
		
Date of decision: 	5 October 2023	
		
Parties: 	Public Trustee v Luke Tahuniai	
		
Date of hearing: 	6 September 2023	
		
Court file number(s): 	310 of 2017	
		
Jurisdiction: 	Civil	
		
Place of delivery: 		
		
Judge(s): 	Bird; PJ	
		
On appeal from:		
		
Order:	1. The claim of the Claimant filed on 2 July 2019 is hereby dismissed.
2. I enter judgment in favour of the Defendant as a beneficiary on constructive trust. The register in parcel number 191-131-30 must therefore be rectified in favour of the Defendant.
3. The widow and children, their relatives, friends, servants and agents are restrained from disturbing or interfering with the Defendant’s possession of the said property.
4. I order cost against the estate.	
		
Representation: 	Mr Richard Muaki for the Claimant 
Mr Steven Weago for the Defendant 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Land and Titles Act S 200 [cap 133]	
		
Cases cited:	Toliliu v Toliliu [2008] SBHC 25	

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 310 of 2017

BETWEEN 

PUBLIC TRUSTEE
(As Administrator for the estate of Joshua Pai)

V

LUKE TAHUNIAI
Defendant

Date of Hearing: 6 September 2023
Date of Decision: 5 October 2023

Mr Richard Muaki for the Claimant 
Mr Steven Weago for the Defendant 
RULING 
Bird PJ:
1. 	The deceased Joshua Pai died intestate on 17 November 2016. Letters of Administration was granted by this court to the Claimant on 11 April 2017. At the time of his death, the deceased held Fixed Term Estate over parcel number 191-131-30, situated at Mbokona, West Honiara. The Defendant is the brother of the deceased and had occupied the property since 1982 without paying rent to the deceased and the late Charles Manata who was until 11 September 2014, a joint owner of the said property. By letter dated 4 May 2017, the Defendant was requested to vacate the property and yield up vacant possession to the Administrator. The Defendant had refused to move out from the property thus the claim claimed by the Claimant in this proceeding. 
2. 	The Claimant seeks the following orders:
i) 	An order for possession of land and eviction;
ii) 	Enforcement order, authorising the High Court Sherriff to enter, repossess the land and passes vacant possession to the Claimant;
iii) 	Any orders deems fit by the Honourable court.
3. 	In the Defendant’s defence and Counterclaim, the Defendant pleads that the registered owners held title to the subject property upon the principle of constructive trust. The Defendant therefore seeks orders that:
i) 	An order that the Fixed Term Estate Register  in respect of the property in question be rectified  and the Fixed Term Estate be registered in the name of the Defendant as a surviving beneficiary owner;
ii) 	A permanent injunction restraining the widow of his late younger brother Joshua Pai, her children, relatives, friends, servants and agents from disturbing or interfering with his possession of the property in question;
iii) 	Cost; and
iv) 	Any further order may deem fit by the court in the circumstances. 
4. 	The agreed facts to this dispute are the following viz:
i	The Claimant is the appointed Administrator for the estate of Joshua Pai (the deceased).
ii	The Defendant is the brother of the deceased.
iii	The deceased and late Charles Manata were joint owners of PN 191-013-030 (the property).
iv	The Defendant and his family occupied the property since 1982.
v	The deceased is currently the registered FTE holder of the property.
vi	Ellen Pai is the widow of the deceased.
5. 	Four issues were identified by counsel for the parties and I state them as follows:
i)	Whether upon the death of late Charles Manata in 2006, deceased became the sole surviving joint owner until his death in 2016;
ii)	For the purposes of the Wills Probate and Administration Act, who are the beneficiaries of the estate of the deceased;
iii)	Whether the defendant was also responsible to repaying the loan of $8,495.97 from Solomon Islands Housing Authority; and
iv)	Whether a trust was created on the basis of the defendant’s contribution to repaying the loan. 
6. 	From my reading of the Claim by the Public Trustee, the Defendant’s Defence and Counterclaim, the Claimant’s Reply and Defence to Counterclaim and the Defendant’s Reply, the issues numbered (i) and (ii) above can be shortly disposed of by the court. Section 200 of the Land and Titles Act (cap 133) deals with such a situation. That section provides:
	s. 200 (1) Where a registered interest in land in owned jointly the joint owners shall hold on the statutory trusts.
(2)	Where two or more persons are joint owners of a registered interest in land 
(a) 	a disposition of the interest shall be made only by all the joint owners; and
(b) 	on the death of a joint owner the interest shall vest in the surviving owner or owners.
7. 	As to issue (ii), the Wills Probate Administration Act (WPAA) provides for the circumstances of this case. There is a surviving spouse and children of the deceased who are the beneficiaries under the Act. So in relation to issues (i) and (ii), the court is minded to say that at the time of his death, the deceased was the sole owner of the property in PN 191-031-30. The widow Ellen Pai and her children are beneficiaries under the provision of the WPAA.
8. 	The contentious issues are (iii) and (iv) respectively. It is the case for the Claimant that in relation to issue (iii), the Defendant has not shown any receipts of repayment of the housing loan of SBD$8,495.97 to SIHA. It is further the case for the Claimant that since the said loan was taken out in the joint names of the deceased and late Charles Manata, the Defendant had no part of it in any way.
9. 	On behalf of the Defendant, it is submitted by Mr Weago of counsel that the plan to purchase the said property was the combined intention of the deceased, the late Charles Manata and the Defendant. The deceased and the Defendant were blood brothers and the late Charles Manata was their cousin. They initially planned to purchase the property for their family use. The late Charles Manata and the Defendant tried to get a housing loan with the Solomon Islands Housing Authority (SIHA) but their combined salary could not entitle them to get the required loan of SBD$8,495.97. They were advised to get another person to assist with their loan application. The Defendant consulted with his younger brother (the deceased) to assist them with their loan application. The deceased agreed and the three individuals lodged a joint application for a housing loan with SIHA. 
10. 	It is the case for the Defendant that when the joint application was approved by the SIHA Board, the property in parcel number 191-131-30 was purchased through that joint loan. That due to work commitment, the Defendant was unable to execute the relevant documents. He nonetheless gave to the late Charles Manata the sum of $240.00 to be paid to SIHA before execution of the said documents with SIHA. The three individuals have agreed with each other to equally repay the sum of $77.00 per month as loan repayment. It is further the case for the Defendant that when the joint loan fell into arrears in early 1982, they were informed through letter by SIHA to settle the arrears. That situation led the three individuals to hold a meeting whereby it was resolved that the Defendant shall occupy the house and repay the housing loan through his housing allowance of SBD$100.00 per month. From that time onwards, the Defendant lived in the house and paid off the joint housing loan with SIHA. The late Charles Manata and the deceased did not contribute to pay off the housing loan. The Defendant had been living in the said property from April 1982 to date. He paid off the joint housing loan with SIHA in 1994.
11. 	It is obvious from the FTE register that the Defendant is not a registered title holder of the said property but it is rather the case for the Defendant that upon the facts alluded to above, the late Charles Manata and the deceased held the said property in trust also on his behalf by virtue of the principle of constructive trust. It is submitted that during the life time of the late Charles Manata and the deceased, they have never interfered with and or disturbed the Defendant in his occupation of the said property.
12. 	In the sworn statement of Baddley Amasia on pages 47 to 48 of the ‘not agreed’ book filed on 25 July 2023, he confirmed the housing loan arrangement alluded to by the Defendant. He confirmed that he could recall that the late Charles Manata, the deceased and the Defendant made a joint housing loan application with SIHA. He had been working with SIHA since 1975 as an Accounts Clerk, as an Accountant in 1977 and later promoted to Financial Controller in 1986. He knew about the joint housing loan of the three individuals and he also knows that the Defendant was responsible to pay off the joint housing loan with SIHA. It is submitted that the sworn statement of Mr Amasia confirms the information provided by the Defendant in his sworn statements filed in this case.
13. 	It is therefore submitted on behalf of the Defendant that subject to the right of the deceased over parcel number 191-131-30, the Defendant also possess a right over the said property by constructive trust. Mr Weago of counsel relies on the case of Toliliu v Toliliu [2008] SBHC 25; HCSI-CC 248 of 2004. In that case the court stated as follows and I quote: “In a constructive trust, the court imposes a trust by law based on good conscience and justice. It is a process founded in the principles of equity and is to be applied in cases where the party cannot conscientiously keep the property to himself alone but ought to allow another to have a share in it. It is a remedy by which the court can enable an aggrieved party to obtain restitution. An example would be where one person contributes to the purchase price of the house. The owner holds it on a constructive trust for him, proportionate to his contribution even though there is no agreement between them, no declaration of a trust or no evidence of any intention to create a trust….”
14. 	Upon the above legal principles it is submitted on behalf of the Defendant that notwithstanding the fact that the deceased is the registered surviving owner of parcel number 191-131-30, the said property is held in trust for the Defendant by constructive trust and upon his contribution to the repayment of the joint housing loan of the late Charles Manata, the deceased and himself. By counterclaim, the Defendant seeks orders that the registration in parcel number 191-131-30 be rectified and that the title be registered in his name as a beneficiary under the principle of constructive trust. He also seeks restraining orders against the widow and children of the deceased as well as cost.
Discussion
15. 	This is claim for repossession and eviction of the Defendant in parcel number 191-131-30. The Claimant was granted Letters of administration by this court on 11 April 2017 in respect of the estate of Joshua Pai. One of the properties that was alleged to be part of the deceased estate was the property contained in parcel number 191-131-30. The FTE title is vested in the name of the deceased. At the time of the orders for Letters of Administration, the Defendant was in occupation of the said property. He was in continuous occupation of the said property since early 1982 to this present time. That period of time would be more than forty one (41) years.
16. 	According to the sworn statements of the Defendants filed in this case, he was an active party to the purchase and repayment of housing loan to the SIHA for the purchase of the said property in about 1981. He was in actual occupation of the property since April 1982 to date. He had contributed substantially to the repayment of the joint housing loan with SIHA.
17. 	The sworn statement of Mr Amasia discussed above also confirmed in every material facts the information contained in the Defendant’s sworn statements. I have noted that the Claimant did not file any response sworn statements to the sworn statement of the Defendant and the sworn statement of Baddley Amasia both filed on 12 October 2020. The two deponents were also not called to be cross-examined by Mr Muaki of counsel for the Claimant. On that basis, I can therefore hold that the evidence in those respective sworn statements are unchallenged and have formed part of the evidence in this case.
18. 	Upon the evidence contained in those two sworn statements, I am able to say that the Defendant possesses an equitable right over the property contained in parcel number 191-131-30. Also from the evidence before me, I am also able to say that the Defendant has paid off a substantial part of or may be all of the purchase price of the said property through his monthly repayment of the joint housing loan to SIHA.
19. 	There is no evidence to the contrary to suggest that the deceased or the late Charles Manata had in fact paid off the joint housing loan with SIHA. I have noted that no receipts of repayment to SIHA was produced by any of the parties to this case. It could be because of lapse of time in this case and the said documents could have been destroyed. In any case, the Defendant’s evidence is supported by the evidence of Mr Amasia on the issue of the joint housing loan and the repayments. I am therefore satisfied on the balance of probabilities that the Defendant had substantially paid off the housing loan in respect of the property in parcel number 191-131-30 to the SIHA from 1981 to 1994.
20. 	Having said that, I am also satisfied that the late Charles Manata and the deceased held the title over parcel number 191-131-30 upon the principle of constructive trust for the benefit of the Defendant. I hereby refuse the claim of the Claimant for possession and eviction of the Defendant. I will grant the orders sought in the Defendant’s counterclaim.
Orders of the court
1.	The claim of the Claimant filed on 2 July 2019 is hereby dismissed.
2.	I enter judgment in favour of the Defendant as a beneficiary on constructive trust. The register in parcel number 191-131-30 must therefore be rectified in favour of the Defendant.
3.	The widow and children, their relatives, friends, servants and agents are restrained from disturbing or interfering with the Defendant’s possession of the said property.
4.	I order cost against the estate.
THE COURT
Justice Maelyn Bird
Puisne Judge