Pitubangara v Boyers [2023] SBHC 105; HCSI-CC 263 of 2019 (9 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Pitubangara v Boyers
Citation:
Date of decision:	9 October 2023
Parties:	Russell Edolo Pitubangara v Peter James Boyers, Umi Kabani Company Limited, Attorney General
Date of hearing:	8 September 2023
Court file number(s):	263 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	E. Kouhota; PJ
On appeal from:
Order:
Representation:	Abe for the Claimant Afeau P for the First & Second Defendants Fakarii F for the Third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 229 (2)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil case No. 263 of 2019

BETWEEN

RUSSELL EDOLO PITUBANGARA
(Beneficiary of Parcel Number: 098-011-62
Claimant

AND:

PETER JAMES BOYERS
(Trustee to Parcel number: 098-011-62)
First Defendant

AND:

UMI KABANA COMPANY LIMITED
(Current Title Holder to parcel number: 098-011-62)
Second Defendant

AND:

ATTORNEY GENERAL
(Representing the Registrar of Titles)
Third Defendant

Date of Hearing: 8 September 2023
Date of Ruling: 9 October 2023

Abe for the Claimant
Afeau P for the First & Second Defendants
Fakarii F for the third Defendant

JUDGMENT

E. Kouhota PJ

The Claimant on 29^th May 2019 filed a category (A) claim against the Defendants seeking the following relief;

1. An order for rectification of the register in respect of Parcel No. 098-0011-62
2. An order that the Claimant in these proceedings become the registered owner over parcel number 098-011-62
3. Cost of and incidental to this action be borne by the First and Second Defendants
4. Such other orders as the Court thinks fit to make in the circumstances.

The events leading up to this proceeding are long and can not be fully stated in this Judgment but I think Counsel for the First Defendant clearly summarised the facts of claimant’s claim in his final submission. Counsel for the First Defendant summary is as follows;

“The Claimants case is that although the fix term estate of the Land was registered in the name of the First Defendant, he held it in trust for himself (Claimant) emphasis mine. He relied on a statutory Declaration supposedly signed by himself and the First Defendant. In the Declaration the First Defendant is said to have declare that – parcel 098-011-62 Noro, Western Province to transfer to Russell Edolo Pitubangara (Claimant) (emphasis mine) upon any event of sudden death or transfer when the loan is paid in full.”
“The Claimant seems to assert that the Declaration constituted a trust between them where the First Defendant held the land in trust for him until the First Defendant is dead or the loan with CCL is fully paid when the land should then transferred back to him. He therefore claims that the First Defendant breached his trust when he transferred the land to the Second Defendant without his consent. The Claimant therefore seeks to have the register rectified and the land title returned to him on the grounds of mistake and fraud under section 229 of the Lands and Title Act”. I consider this is a correct summary of the claim.

The agreed facts and issues seem to be in line with the Counsel for the First Defendant’s summary. I had considered that the evidence adduce in the trial and there seem to be no conflicting evidence but the evidence confirm the agreed facts and issues in this case. This means the only question remaining is a question of law and the question is whether the First Defendant held the property in Trust for the Claimant.

Counsel for the Claimant submit, that even the property has an existing charge by Credit Corporation and is at risk of being sold by Credit Corporation, the First Defendant as Trustee has a fiduciary duty to get the consent from the Claimant how the property will be disposed and his consent to have it sold to the Second Defendant or other potential buyers or even considering options suggested to the First Defendant to service the loan and secure the property for the Claimant. He further submit that the Second Defendant cannot be said to have acquire the interest over the property for valuable consideration thus not protected under section 229 (2) of the Lands and Titles Act.

Counsel also submit that the Third Defendant relied on a false misrepresentation by the First defendant that he is the absolute owner of the property thus failing to disclose the statutory declaration at the time when the application to transfer title to him ( (First Defendant) was made to confirm his status as trustee to the property.

Counsel for the First Defendant submit that the Claimant himself said that the arrangement in the statutory declaration was a good will gesture from the First Defendant based on their long standing friendship. There is also no evidence to show that when the land was transfer by the Claimant to the First Defendant there was an agreement that the First Defendant was to hold the land in trust for the Claimant.

For the Claimant’s claim to succeed depends on whether the First Defendant hold the property in trust for him. The validity of the trust is based on the conditions agreed to by the Parties.

The Claimant based his claim that the property was held in trust for him by the First Defendant was based on a declaration made by the First Defendant on 19^th December 2014, Exhibit Annexure 4 to the sworn statement of Russell Edolo Pitubangara filed on 19^th May 2019. The declaration reads “ I Peter James Boyce of Honiara, Solomon Islands do hereby solemnly and sincerity declare that Parcel 098-011-62 Noro, Western Province to transfer to Russell Edolo Pitubangara upon any event of sudden death or transfer when the loan is paid in full.”

While the Claimant based his claim on the declaration by the First Defendant that the First Defendant hold the property in trust for him, there is no mention in the declaration that the First Defendant held the property in trust for him or that the declaration created or confirm a trust. All that the First Defendant declare is that the property will be transferred to the claimant in the even of sudden death or when the loan is paid in full.

The Third defendant also base their action on the basis that there is no evidence that the property was held in trust by the First Defendant for the Claimant.

After considering the materials before the Court, I consider there is nothing in the declaration that says the First Defendant held the property in trust for the Claimant no was there anything in the declaration on which it can reasonable be inferred that First Defendant held the property in trust for the Claimant. The property will only be transfer to him when any of the events specified in the declaration occurred but he can not claim a declaration in respect of future events amounts to the First Defendant saying he hold the property in trust for him. He is only entitle for the property to be transferred to him when any of the events occurred but the events never occurred. In that respect before any of the events occurred the First Defendant is at liberty to deal with the property without the consent of the Claimant. Credit Cooperation also has a charge over the property and they are entitled to sell or deal with the property if their loan is unpaid. That is what happened in present case.

I therefore, find that there is no evidence of fraud or mistake in the sale of the property. For these reasons the orders sought by the Claimant are refused and the claim is dismissed with cause against the Claimant to assed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge