Emmett v Emmett [2012] SBHC 14; HCSI-CC 125 of 2011 (7 February 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 125 of 2011

BETWEEN:

WILLIAM RONALD EMMETT
Claimant

AND:

ANITA EMMETT
Defendant

Date of Hearing: 28 November 2011
Date of Ruling: 7 February 2012

Desmond W Nimepo for the Claimant
Dr P Tagini for the Defendant

DECISION

Mwanesalua J:

1. This is a claim filed by the Claimant on 4 April 2011 seeking: an order to evict the Defendant, her agents, employees and servants from the claimant's premises; an order restraining the Defendant, her agents, employees and servants from entering, residing and/or occupying the premises; an order for possession of the property; mesne profit at the rate of SBD5,000.00 per month from 2006 until possession is delivered up; interest thereon at the statutory rate of 5% per annum; any such further orders the Court deems fit to make; and costs.

2. The Claimant's claim is that: he was and is the sole registered owner of the land and premises situated on Fixed Term Estate in Parcel Number 192-002-93 ("the property") at Panatina, East Honiara, Solomon Islands; that the Defendant entered into possession of the property following claims as a director and shareholder of Emmett Logging (SI) Ltd ("the Company"), that she has interest over the property and that her possession of the property is valid on the basis that the property was previously owned by the Company to which she was a director; that the Defendant has never obtained the Claimant's consent and authority before taking possession of the property and therefore the Defendant is illegally occupying the Claimant's property; the Defendant has failed to make rental payments to the Claimant as owner of the property since 2006; the Claimant issued several notices to the Defendant to vacate the property; despite the Claimant's request to the Defendant and/or her employees, agents and servants to vacate the property, the Defendant and/or her employees, agents and servants: (a) still remain in possession of the property as trespassers; and (b) continuously refused and/or ignored the Claimant; the Defendant has further unlawfully prevented the Claimant as owner of the property in the manner as he deems fit, including developing and renting the property to prospective tenants; and that the fair letting of the property occupied by the Defendant is SBD5,000.00 per month.

3. The Defendant filed her defence to the Claim on 13 April 2011. That defence shows: the Defendant admits that the property is registered in the Claimant's name; The Claimant is the Defendant's son; the Defendant and the Claimant's father were married to each other until they were separated in 2003; In 2008, the Defendant and the Claimant's father were divorced; during the marriage, the company, was incorporated, where 50% of the shares were held by the Defendant and 50% of the shares were held by the Claimant's father, Ronald Douglas Emmett; the property was purchased by the company using its own funds. The Defendant and Ronald Douglas Emmett, however, agreed that the property would be registered in the Claimant's name; the Claimant impliedly or constructively holds the property in trust for the company; the Defendant and the Claimant's father lived in the property until April 2003, when they separated. The Defendant remains in occupation of the property with the knowledge of Ronald Douglas Emmett and the Claimant. The Defendant and the Claimant's father are parties to the High Court Civil Case No. 46 of 2008 which is still pending; The Defendant does not require the Claimant's consent to reside in the property; The Defendant along with her ex-husband and the Claimant moved into the house as soon as it was bought; in any event she did not need the Claimant's consent; The Defendant in her capacity as a director of and shareholder in the company is entitled to reside in the property rent-free; The Defendant admitted receiving notice to vacate the property. The Defendant has always lived in the house since it was bought by monies from the company; The Defendant filed for matrimonial property which includes this property in Civil Claim No. 46 of 2008, which is still pending before the Court. The Defendant claims that the Claimant commenced these proceedings on the instructions of or in collusion with his father, Mr Ronald Douglas Emmett as a means of putting pressure on her in Civil Case No. 46 of 2008; The Defendant says that the Claimant has also been using the company's machinery through Emco Pacific Ltd, without paying the Defendant any monies for usage of such machinery; and that the Defendant wishes to remain in occupation of the property rent-free until High Court Civil Case No. 46 of 2008 is either settled or judgment has been delivered and any appeal therefrom is disposed of. The Defendant says that in the circumstances, it would not be equitable for the Claimant to be allowed to evict her from the property or to recover mesne profit for the period claimed by the Claimant.

4. There is no dispute that the property was bought by the company, that the Defendant and Ronald Douglas Emmett held 50% shares each in the Company and that the property was registered in the name of the Claimant.

5. The Claimant's main submission is that the property was initially purchased and specifically intended to be his personal property. He subsequently explained that he had never been formally paid by the company since it was incorporated and during company's operation. Based on that, the Defendant and his father decided that the property would be used to offset any outstanding money not being paid towards his salary and other entitlements during the course of his employment with the Company.

6. The Defendant's submissions are that: The Claimant merely holds the property in trust for the Company. The Defendant explains that this property was registered in the Claimant's name in order to protect it from litigation in Australia affecting properties held in Solomon Islands by the Company. The property was treated as a family home and that she moved into it as soon as it was acquired. Her occupation of the property never caused any problem until Mr Ronald Douglas Emmett and herself divorced. It was then that the Claimant took sides with his father and thus this claim to take the house from her.

7. The Register of Fixed Term Estate shows that the interest in Parcel Number 192-002-93 was registered by the Registrar of Titles on 5 May 2002 on a transfer consideration of $180,000.00.

8. The Register of this property also shows that the company used this property as security for two loans from the Bank. This claim was filed on 4 April 2011. That was more than 10 years after this property was registered in the name of the Claimant. That confirms the Defendant's evidence that she moved into the property with the family since it was bought. And that she has been living there to date. This case and the issue of unlawful possession of the property were merely filed in court last year.

9. The Defendant's defence as referred to above, is that the Claimant merely holds title to the property on trust for the company to protect it from litigation in Australia affecting the properties held in Solomon by the company. It appears from the Ruling in Anita Emmett –v- Ronald Douglas Emmett, Civil Case No. 46 of 2011, delivered on 21 December 2011, that the properties of Emmett Logging (Australia) Pty Ltd were brought to Solomon Islands. Those properties include logging equipment and machines.

10. In ANITA EMMETT –V- RONALD DOUGLAS EMMETT - Civil Case No. 158 of 2003, the Court found that the Claimant (the Defendant in this Case) did not prove any legal basis to override the present Claimant's right of ownership of the house. The present claimant was not a party to that case. In that case, the Court decided that the property is owned by the Claimant in this case.

11. The main issue in this case is whether or not the Claimant merely holds the property in trust for the company. The Court will now consider that issue.

12. There seem to be evidence of a resulting trust in this case. "A resulting trust may arise solely by operations of law, as where, upon purchase of land, one person provides the purchase money and conveyance is taken in the name of another. There is then a resulting trust in favour of the person providing the money, unless from the relation between the two, or from other circumstances, it appears that a gift was intended. (16 Halbury's Laws (4th edn) para 1453)".

13. "A resulting trust is a trust arising by operation of law:

(1) ....................

(2) ......................

(3) Where property is purchased in the name of or placed in the possession of a person without any intimation that he is to hold it in trust, but the retention of the beneficial interest by the purchaser or disposer is presumed to have been intended". (48 Halsbury's Laws (4th edn) para 597)

14. In Shepard –v- Cartwright-House of Lords (1954) [1954] UKHL 2; [1955] A.C. 431, a case on resulting trust with regard to the purchase and registration of shares, His Lordship Viscount Simonds stated: "My Lords, I do not distinguish between the purchase of shares and the acquisition of shares upon allotment, and I think the law is clear that on the one hand where a man purchases shares and if they are registered in the name of a stranger, there is a resulting trust in favour of the purchaser; on the other hand, if they are registered in the name of a child or one of whom the purchaser then stood in loco parentis, there is no resulting trust but a presumption of advancement."

15. I hold the view that that principle of law also applies in purchase and registration of land.

16. The property, in this case, was not registered in the name of the Defendant and Ronald Douglas Emmett, so that the property could be regarded as an advancement to their son, the Claimant. The property was registered in the name of the Claimant, who is a stranger. There is a resulting trust in favour of the company. The Claimant merely holds the property in trust for the company. The Claimant has not satisfied this Court that he does not hold the property in trust for the company. In the circumstances, the Court will not grant the orders sought in this claim. The claim is dismissed.

ORDER:

(1) Refuse orders sought in this claim.

(2) Claim dismissed.

(3) The Claimant is to pay the Defendant's costs.

(4) The Claimant holds the property in trust for the company.

THE COURT