Wa'etara v Awaoli [2016] SBHC 148; HCSI-CC 400 of 2012 (19 September 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: JANE MUGAFALU KABUI WA’ETARA - Claimant/Applicant

AND: EDWIN AWAOLI - Defendant/Respondent

Date of Hearing: 7 September 2016
Date of Judgment: 19 September 2016

Mr. G. Fa’aitoa for claimants
No appearance of defendant.

Application for assessment of damages for unlawful occupation of premises about Honiara

Brown J:

On the 16^th May 2012 this court granted letter of administration in respect of the Estate of the late Mrs. Joycelyn Koromako, also known as Joycelyn Mugama’ama Kabui, who died intestate on 22^nd February 2009 in Honiara, to Heingdee Ngeno Koromako, Garry Koromako and Jane Mugafalu Kabui Wa’etara.

On the 26^th October 2012 Jane Mugafalu Kabui Wa’etara instituted these proceeding on behalf of the Estate claiming possession of a property of the Estate in parcel 191-033-16 situate in Mbua Valley Central Honiara, then occupied by the defendant, Edwin Awaoli. As well, the claimant sought damages, unpaid rentals and interest.

The claimant is the Aunty of the other two named administrators of the estate, who are the sons of the deceased. When these proceedings were instituted, the defendant was represented by Messrs. Bird and Hiele Legal Services. Then ANH Legal Services filed a conditional response after a default judgment for possession was given 26 February 2015, after the defendant had vacated the property. The order of the court also found damages in the claimant’s favour to be assessed. A reply to the claimant’s statement of case for damages was filed on the 18 November 2013 but despite notices sent ANH Legal Services by the Registrar of the Court, there has been no appearance of the defendant or his legal representatives at this court at the pre-trial conference or the trial.

The defendant came into occupation of the house property after the owner, Joycelyn Koromako had died. He had dealt with the widower of the deceased and took possession of the house in accordance with an arrangement with the widower. The widower never had authority to deal with the house property which was an asset of the intestate Estate, for he was not to become an administrator of the Estate. Until letters of Administration were granted, no person had legal power to deal with the assets of Estate. The fact that the defendant acted upon an arrangement with a person never imbued with administrative powers gives the defendant no standing or right to claim an interest as de facto purchaser of the house property. He was but dealing with a stranger and cannot claim any right, legal or equitable, in the house property apart from a right of possession.

He was however, in occupation since 2011, sometime after the deceased’s passing in 2010. The claimant wrote on the 11^th June 2012 advising Mr. Awaoli of the grant of administration and seeking rental moneys from January 2011 to June 2012 and also offering a formal tenancy agreement. Failing execution of a formal tenancy agreement (preferably at a month rental of $ 3,000, claimed for the earlier period), the defendant was told to vacate the premises by the 30 June 2012.

The defendant failed to sign any tenancy agreement not did he vacate until July 2014. The house was in a bad state of repair. The claimant has filed in proof an assessment by Wantok Architecture Ltd that $ 73,319.72 was needed for repair work to the premises to put it on a proper state of repair for leasing.

In the course of these proceedings, the defendant filed material to show he had spent money on the house premises. He claimed impliedly that the property was in an improper state of repair at the time of his occupation. I prefer the evidence of the property surveyor. Whether the claimant is entitled to that sum of $ 73,319.72 is another question, for the benefit of that money, if spent on maintenance and repairs, remains with the house and consequently benefits the estate. For there was no lease agreement with perhaps a clause to the effect the tenant would keep the premises in good repair obligating the tenant to maintain the property.

The fact that the administrator and her husband had, by agreement with the beneficiaries of the estate purchased the property and incurred loan costs as a consequent is solely a matter for the estate and cannot be attributed to any act or failure on the part of the defendant.

Of course delay in vacating the property will go to the question of damages if the defendant is found to be obliged to vacate in accordance with the request in that letter of the 11 June 2012. Certainly there was no contractual basis for the occupancy, since the widower had no actual or ostensible right to lease.

But has the defendant a right to remain in occupation once his continued possession is denied?
For there can be no demise of an estate, leasehold, for instance to the defendant. There has been no oral letting by the administrator for the terms of the letter are clear. Enter into a lease (for there was none before) or vacate.

It is the law that a person in possession is entitled to maintain it against all but a person having a better right to possession. By that letter of the 11^th June 2012, the administrator impliedly claims a better right to possession. For until appointment as the administrator, she had no claim or power over the estate what-so-ever and until the claim in the letter, disputing possession by the occupier, the defendant’s actual possession, implicitly was good against all others.

It follows that until the 11 June 2012, the defendant’s right of occupation was by possession in fact and that fact alone negates any claim for damages by the administrator, whose rights and powers only arose when appointed on the 16 May 2012 and despite her wish, had no contractual right to rent. Different considerations apply after demand by that letter of the 11 June 2012.

Nowhere in the pleading does the claimant base any claim of right to have the defendant dispossessed. Before dealing further with this issue, it is worthwhile reminding that no incidents, whether statutory or at common law, of the landlord or tenant relationship, can possibly operate. For any such incident may arise from the estate of the landlord, for instance who may create another estate as tenant or licensee perhaps, to benefit others. But since this is land registered in the name of the deceased at the time of occupation by the defendant, there was no-one able to deal with the land in accordance with the Land & Titles Act until the time of the appointment and then only in accordance with the statutory provisions. For by S. 127, a husband & wife shall, for all purposes of any transaction affecting or concerning an interest, be treated as separate persons. So dealings with the widower of the deceased cannot help the defendant for the property was registered land in the wife’s name. Any dealing with registered land with a stranger to the land (the husband in this case) cannot give this defendant an inchoate title, relying perhaps on some customary right in a husband to deal with his wife’s property on her passing.

By S. 209(2) and (4) of the Land Title Act, the administrators of the intestate estate may become registered on the title by transmission as owner in the place of the deceased. This occurred on 3 June, 2013 where-upon, pursuant to S. 215 of the Act, the registration of administrators shall relate back to and take effect from the date of death of the deceased owner, “ subject to any liabilities rights or interests which are unregistered but never the less enforceable and subject to which the deceased owner held the title.”

The occupation of the defendant took place after the death. But the section does not retrospectively give the registered administrators of the estate power to take moneys for occupation unless the occupation took place before the death and could stand as a liability of the estate provided for in S. 215.

The equitable interest of the administrators once appointed by grant, and entitled by transmission to become a registered owner of the property, is a better right to possession, when claimed, than the defendants right to remain. And I have shown, the defendant’s right to remain ceased when faced with someone with a better right. There existed the equitable right to ownership, although not stated, in the letter of 11 June, 2012.

Adverse possession in these circumstances cannot give rise to rights under the Land & Titles Act once the administrator claims possession. By s. 110 the owner shall have rights not liable to be defeated except as provided for by the Act [and subject to those rights in S. 114.] Any rights of a “squatter” envisaged in the circumstances of St. Marylebone Property Co. Ltd v Fairweather^[1] are not rights recognized in this jurisdiction.
Consequently, the claimants are entitled to damages for loss of benefit of occupation of the house property from the end of June when the defendant was in wrongful occupation until he did vacate the property in early July 2014. At that time any rights he may have had to possession were lost. As best as can be ascertained from the statements of the claimant, the defendant entered into occupation in about April 2010, although the defendant in the Reply, claims to have taken possession in January, 2011. I prefer the evidence of the claimant since it is supported.

An appropriate method to assess such damages for wrongful possession since June 2012 would be to look at a fair “rental” for that period from April 2010 until the end of June 2014 and I find the approach by the claimant reasonable. But it is a mistake to continually allude to the damages as rental since no rental agreement was ever concluded. It is because of this continuing mistake that the claimant has presumed to claim costs perhaps associated with breach of contract but not tort.

I accept the evidence of a previous rental of the property as affording the court basis for finding $3000 per month as a reasonable amount for the loss of the use of the premises. [See annexure JW 2-6 to the statement of the claimant filed on the 20 July 2016.] The total amount is $111,000. The claimant seeks some $5000 per month for the market rentals had improved since the earlier period. That may be so but the premises were not in good condition and I would be unable to guess what effect that would have on a market rental.

The claimant was obliged to proceed to judgment for possession since the defendant sought to have the widower appointed joint administrator of the estate and a defendant in these proceedings. Neither application was successful although the adverse occupation continued through-out this period until the finding against his appointment as joint administrator. The claimant also claims $48,000 for administration costs connected with the other proceedings the Estate had to defend to enable it to obtain the order for possession. Whilst the claim has not been well particularized I am willing to allow an amount of $25,000 for aggravated damages attributable to the administrators lost time dealing with these other proceedings. The administrator was put to unnecessary expense and wasted time travelling about Honiara in connection with these failed proceedings of the defendant and kept the Estate from dealing with the house property as it saw fit whilst the defendant remained in adverse possession. This claim is part of the damages claimed but may be categorized, as well as administration costs, separately to the actual loss occasioned by the defendant’s failure to pay a reasonable fee for continued occupation.

So far as the claim for costs of loan moneys are concerned, the claims are refused for the defendant is not to see to the administrators financial circumstances nor is he responsible for the manner in which the Estate deals with Estate property, whether by raising loans or not. Nor is the defendant liable for interest on moneys borrowed by the administrator or her husband.

The cost of repairs are claimed in the sum of $120,000. As I have said, there is no agreement about maintenance nor is there evidence to prove any damage to the property from that state in 2010 at the date of death, least of all damage beyond failure to maintain caused by the defendant.

The earlier judgment unfortunately referred to rent unpaid. Rent relates to a rental agreement and is not available in these proceedings. The rental to be expected may sound in damages and I have so determined but the earlier award of interest, predicated on an agreement, is consequently unfounded.

Claims were made for valuations of property and architects fees but they relate to the Estates’ interest in the property and cannot be attributed to acts of the defendant nor do they necessarily directly flow from the administrators claim for possession. They are not allowed.

An amount of $34,145 is claimed for legal fees and disbursements to the 6 October 2015. These fees are not disputed by the defendant. Since then the claimant has incurred additional fees to date of and including trial. These fees are estimated to be $2,000 I award these costs in favour of the claimant against the defendant.

Orders.

I award damages for wrongful possession in favour of the claimant against the defendant in an amount of $136,000.

I award costs in the sum of $ 36,145

By the Court.

__________________
BROWN J

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^[1] [1962] UKHL 1; [1963] A.C. 510 at 536