Tito v Lazarus [2021] SBHC 138; HCSI-CC 68 of 2021 (29 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tito v Lazarus
Citation:
Date of decision:	29 October 20221
Parties:	Lyndah Tito and Salana Kalu v Hellen Lazarus
Date of hearing:	8 October 2021
Court file number(s):	68 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	(i) Specific performance is issued compelling the defendant to transfer the PE in PN 137 to the claimants. (ii) The PE in PN 137 shall be transferred and registered to Lyndah Tito and or Salana Kalu and the relevant land administration offices shall facilitate these orders. (iii) The Commissioner of Lands and Registrar of Titles are joined as parties to this proceeding for the limited purposes of orders (i) and (ii) above. (iv) Cost against the defendant to be assessed, if not agreed.
Representation:	Mr. Lagobe for the Claimants/Applicants Mr. Fakari’i for the Defendant/Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133] S 229 (1) and (2), Stamp and Duties Act Cap 126 S 9
Cases cited:	Austree Enterprises Pty Ltd v Gua [2012] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 68 of 2021

BETWEEN

LYNDAH TITO AND SALANA KALU
Claimant

AND:

HELLEN LAZARUS
Defendant

Date of Hearing: 8 October 2021
Date of Ruling: 29 October 2021

Mr. Lagobe for the Claimants/Applicants
Mr. Fakari’i for the Defendant/ Respondent

Keniapisia; PJ

RULING ON APPLICATION FOR SUMMARY JUDGMENT

1. Claimants seek specific performance against the defendant. Defendant is refusing to transfer the Perpetual Estate (“PE”) title in Parcel Number 192-016-137 (“PN 137”) to claimants. Claimants averred they have already paid for PN 137 to the defendant. Claimants have produced clear evidence of their allegation that they have paid for PN 137, as per the applicable agreement.

Agreement in respect of PN 137, is the lone subject of dispute in this claim

2. The applicable agreement for purchase of PN 137 was executed on 30/07/2015^[1]. Defence does not directly dispute the agreement. The crucial or condition terms of the agreement are: -
   • (i) Parties are Lyndah Tito (buyer) and Hellen Lazarus (seller).
   • (ii) Property under transaction is PN 137.
   • (iii) Consideration for the transaction is $150,000.00.
3. Claimants produced clear evidence to verify their claim that they have paid the consideration. Receipt of payment was dated and signed by Hellen Lazarus (seller) on 28/07/2015^[2], two days before the execution of the agreement on 30/07/2015. Defence does not dispute this through clear contrary sworn evidence. Claimants have not been successful in convincing defendant to transfer PN 137 to them. The PE register for PN 137 is still in Hellen Lazarus’s name^[3]. So claimants have filed this claim, seeking specific performance, to enforce the contract.

Defence alleged claimants are entitled to the PE title in Parcel Number 192-016-138 (PN 138) only

4. Defence says that, defendant agreed to give the PE in PN 138 to claimants as guarantee for the PE in PN 137. When sub-division is completed, claimants will take PN 138, instead of PN 137. At that time there was no sub-division. So PN 137 was not in existence. Defence is saying claimants paid for and got one parcel already (PN 138). Claimants did not pay for and cannot get two parcels (PN 138 and PN 137). So claiming for PN 137 in this claim, is unjust enrichment and cannot be enforced. This is false because the clear evidence claimants produced showed that they paid a total of $350,000.00 to Hellen Lazarus on 28/07/2015. Claimants’ evidence overwhelmingly shows $150,000.00^[4] was paid in respect of PN 137. And $200,000.00^[5] was paid for PN 138. Claimants have produced clear evidence to verify their claim in the application for summary judgment^[6]. On the other hand, defendant failed to give clear explanation in pleadings or in evidence, why she received $350,000.00 from claimants. This is not a small amount of money. And defendant is obliged to give a clear explanation. Defendant explained in defence that claimant Lyndah Tito lent to her $150,000.00 in respect of an arrangement for PN 138, but she was offering PN 137 as guarantee, pending sub-division.^[7] This explanation has no basis from any clear evidence, unlike claimants’ clear evidence explaining the $150,000.00, they paid to defendant, for PN 137. Defendant did not file sworn statement evidence setting out reasons to verify that she has an arguable defence^[8].

Claimants have a separate agreement for PN 138, and is not the subject of dispute in this claim

5. Claimants produced clear evidence to verify their claim that they have a separate agreement for PN 138^[9]. The said agreement was executed on 27/05/2015. The condition or crucial terms of the agreement are: -
   • (i) Parties are Lyndah Tito (buyer) and Hellen Lazarus (seller).
   • (ii) Property under transaction is PN 138.
   • (iii) Consideration for the transaction is $200,000.00.
6. Claimants produced clear evidence of completion of payment for PN 138. Receipt of payment was dated and signed by Hellen Lazarus (seller) on 28/07/2015^[10]. Claimants have succeeded in transferring the PE in PN 138 to them in year 2016. Hence claimants have not sought any relief for PN 138 in their Category C claim filed on 19/02/2021. The PE register for PN 138 shows Lyndah Tito’s name is currently registered as owner. Lydah’s name was registered on 21/03/2016^[11]. Court will not entertain any pleadings (claim or defence - that relates to PN 138). The register is conclusive evidence of ownership, under the Torrens System mirrored in our Land and Titles Act (Cap 133), as amended in 2014 – (“the LTA”). Effective from 21/03/2016, Lyndah Tito will enjoy indefeasibility of title, guaranteed under the LTA, in respect of PN 138, unless there is cancellation or rectification under Section 229 (1) and (2) of the LTA. I am satisfied this claim is not about PN 138. It is about PN 137.

Claimants produced clear evidence to verify their claim in respect of PN 137

7. Coming back to PN 137, I alluded to above that claimants produced clear evidence in support of their claim as discussed in paragraphs 1, 2 and 3. So claimants believe that the defendant does not have any real prospect of defending their claim^[12] in respect of PN 137. Claimants have paid for PN 137. The outstanding task is for the defendant to transfer PN 137 to claimants. This was not forthcoming, since July 2015. Hence the filing of this Category C claim for specific performance in respect of PN 137.

Is stamp duty an issue in this claim?

8. Counsel Fakari’i submitted that claimants faced a problem with their evidence. Statute required claimants to produce evidence that the purchase agreement, was stamped. Under Section 9 of the Stamp Duties Act (Cap 126) it is a mandatory requirement that, every agreement document, executed in Solomon Islands, will not be used as evidence, in a civil proceeding, unless it is duly stamped, at the time of first execution. For transfer of properties, you must pay tax on the transaction agreement. By stamping, it means the purchaser had paid for tax on the property transacted under the stamped executed agreement. Counsel Fakari’i cited a binding Court of Appeal authority in Austree^[13] to say that the agreement must be stamped, before a proceeding is commenced. This proceeding was filed on 19/02/2021. The stamp duty for PN 137 was paid on 27/08/2021^[14]. This is unlawful under the ratio decidendi in Austree.
9. Counsel Fakari’i faced a problem with his authoritative submissions. For the defence he filed on 6/07/2021, did not raise stamp duty, as an issue. Hence stamp duty will not become issue for trial in this matter. For the purpose of the application for summary judgment, the said defence does not have any real prospect of defending the claimants’ claim, in respect of PN 137. Court will only proceed to trial, if there are contentious issues between the parties about a material fact^[15]. But where the defence does not plead stamp duty issue, stamp duty, does not become a material fact in dispute, to warrant lengthy investigation at trial.

Conclusion and Orders on the Application for Summary Judgment

10. In view of the foregoing, Court will enter summary judgment on the reliefs sought in the claim, because the defendant has no arguable defence^[16] to the claim in respect of PN 137. Court will grant the reliefs sought as follows: -
    • (i) Specific performance is issued compelling the defendant to transfer the PE in PN 137 to the claimants.
    • (ii) The PE in PN 137 shall be transferred and registered to Lyndah Tito and or Salana Kalu and the relevant land administration offices shall facilitate these orders.

(iii) The Commissioner of Lands and Registrar of Titles are joined as parties to this proceeding for the limited purposes of orders (i) and (ii) above^[17].
(iv) Cost against the defendant to be assessed, if not agreed.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See statement by Lyndah Tito filed 26/02/2021, at Exhibit LT 1.
^[2] See same statement by Lyndah Tito, at Exhibit LT 2.
^[3] See same statement by Lyndah, Tito at Exhibit LT 3.
^[4] See same statement by Lyndah Tito, at Exhibit LT 2.
^[5] See responsive sworn statement of Lyndah Tito, filed 16/08/2021, at Exhibit LT 1.
^[6] Rule 9.59 (a).
^[7] See paragraph 2 (d) (i) (iv) and 2 (e) of the defence.
^[8] Rule 9. 62 (a)
^[9] See responsive sworn statement by Lyndah filed 16/08/2021, at Exhibit LT 1, first page.
^[10] See responsive sworn statement by Lyndah filed 16/08/2021, at Exhibit LT1, second page.
^[11] See responsive sworn statement by Lyndah filed 16/08/2021, at Exhibit LT 1, fourth (last) page.
^[12] Rule 9.57 read with Rule 9.59 (b).
^[13] Austree Enterprises Pty Limited v Guo [2012] SBCA 19; SICOA CAC 7 of 2021 (2^nd November 2021).
^[14] See further sworn statement of Lyndah Tito filed 6/10/2021, at Exhibit LT 1.
^[15] Rule 9.66.
^[16] Rule 9.64 (a).
^[17] This order is made pursuant to relief number 5 of the claim – “such further order as the court deemed fit”.