Isihanua v Kohia [2023] SBHC 28; HCSI-CC 316 of 2021 (5 June 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Isihanua v Kohia
Citation:
Date of decision:	5 June 2023
Parties:	Ruth Isihanua v Nelson Kohia
Date of hearing:	14 November 2022, 16 November 2022 (Claimant’s Submission), 20 February 2023 (Defendant’s Submission) 21 February 2023 (Claimant’s Submission in reply)
Court file number(s):	316 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona, DCJ
On appeal from:
Order:	1. Order that Defendant pay damages to Claimant in the sum of $100,000.00 for trespassing into Parcel No. 191-008-75. 2. Order for possession of the property thereof. 3. Order that Defendant and members of his family occupying the property vacate the same immediately and do not re-enter. 4. Order for cost of this proceeding be paid by the Defendant to the Claimant on standard basis if not agreed upon.
Representation:	Mr. A Radclyffe for the Claimant Mr. C. Rarumae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles S 117 (2), Limitation Act S 47
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 316 of 2021

BETWEEN

RUTH ISIHANUA
Claimant

AND:

NELSON KOHIA
Defendant

Date of Hearing: 14 November 2022, 16 November 2022 (Claimant’s Submission), 20 February 2023 (Defendant’s Submission)
21 February 2023 (Claimant’s Submission in reply)
Date of Judgment: 5 June 2023

Mr. A Radclyffe for the Claimant
Mr. C Rarumae for the Defendant

Judgment of the Trial

Faukona, DCJ: The claim in this case was filed by the Claimant on 15^th June 2021. Later it was amended on 30^th July 2021.

2. The Defendant filed his amended defence on 2^nd September 2021.
3. The subject matter of dispute concerns Crown land Parcel No. 191-008-75 located at Tasahe, Honiara.

The Claimant’s case

4. The Claimant claims from the Defendant the following reliefs; damages for trespass limited to $100,000.00 to the Claimant’s Parcel No. 191-008-75, an order for possession thereof, and an order that the Defendant and members of his family occupying the property vacate the same immediately and not to re-enter, and with costs.
5. The Claimant as appeared in the fixed term estate register was the owner of the FTE in Parcel No. 191-008-75, situated at Tasahe, West Honiara (called “the Property”).
6. The Claimant further states that she and her late husband purchased the property as joint owners from the late Paul Yee for $85,000.00. The payment was made by her late husband to Paul Yee over a period from 2002 to 2004.
7. Paul Yee died on 6^th March 2008. The property was transferred to the Claimant and her late husband (Neil Isihanua) by the administrator of Paul Yee’s estate on or about 2^nd March 2012, and was registered in their joint names on or about 28^th March 2012. The property is charged to BSP Financial Group Ltd.
8. The Defendant is the husband of a sister of the late Isihanua. The Defendant and his wife and adult children are residing in the property and are not paying any rent to the Claimant. The Defendant and his family have been given notice to vacate the property but they refused to do.

The Defendant’s case.

9. The Defendant relies on some sort of arrangement or understanding between late Paul Yee, late Isihanua and the Defendant for the Defendant to purchase one of the houses PN: 191-008-75 owned by the late Paul Yee.
10. It came to pass on 10^th December 2002, the three men met for discussions. Ultimately it was resolved that the Defendant was to pay the property and that the first instalment should be $20,000.00, and later monthly instalments.
11. The sum of $20,000.00 was paid probably on or after 10^th December 2002. The monthly instalment of $2,500.00 was agreed upon by the late Yee was conveyed to the Defendant on 17^th December 2002. The first monthly instalment payment was made in March 2003, three months after the amount was agreed upon.
12. During the negotiation period the Defendant had already undergoing some initial repair and renovation work on the property.
13. According to the Defendant the instalment payments continued to be paid to the late Mr. Yee through late Mr. Isihanua, and this continued until 2004 when the instalment payments should have ended. By then there was no feedback from late Isihanua.
14. Because of that period of silence the Defendant sent his wife to see her brother late Isihanua in 2006 for updates. The late Isihanua told her not to worry. In 2007 the delay was exposed. The reason was as stated in the sworn statement of the Claimant. Since then the relationship between the families were deteriorating. The defendant admitted there is no legal right available to him, except equitable rights in the principle of constructive trust.

Analysis of evidence.

15. On 10^th December 2002 when the three men met and subsequently agreed that PN: 191-008-75 be purchased by the Defendant, there was no mention of any sales agreement to be endorsed by the late Yee and the Defendant. All that was in existence was verbal conversation and verbal agreement.
16. It could have been better if there was a written sales agreement endorsed by the Defendant and the late Yee. The effect of such will provide obligations as to the manner in which the deposit be paid and when to pay, and through whom, including all the monthly instalments. Very significant are official receipts which must be issued upon receipt of each payment and records kept by all parties.
17. It would appear the Defendant was treating the verbal agreement and all the payments made through his brother in law as trust embodied in traditional respect because he married the late Isihanua’s sister.
18. That may not work when you deal with Crown registered land located in Honiara. Section 117 (2) of the Land and Titles Act makes it clear that any verbal contract for the purchase of registered land is not enforceable.
19. This simply mean the Defendant cannot sue on verbal agreement or rely on it to invoke the jurisdiction of the Court. There are exception to it. One exception is part performance. Notably after agreement concluded the amount of $20,000.00 deposit was paid. There is no evidence when it was paid. No receipt was issued by the late Yee or the late Isihanua himself to protect his integrity.
20. This had left speculation whether the late Yee had received the $20,000.00 deposit or not. If receipts were issued it would assistance the Defendant as to conformity that payment was made and received and affirm in terms of part performance.
21. Whilst at the negotiation stage the Claimant started work on reparation and renovation to the property. That is not part performance, no payment had yet been received at that time. The Defendant may have found himself trespassing on late Yee’s property.
22. All the monthly instalments paid later are treated the same. They are not part performance because the question whether the late Yee received those payment or not. The fact that there was no receipt issued manifested otherwise.
23. In the early stages when information was conveyed to the wife of the Defendant about the sale of the two properties, between 15^th October 2002 and 23^rd October 2002 that was after the two meetings were concluded.
24. Before the third meeting on 10^th November 2002, the Claimant and her late husband, on 28^th October 2002 executed a contract for sale of the current property in dispute, for a consideration price of $85,000.00.
25. If that sales contract had been endorsed on 28^th October 2002, why not the late Isihanua told her sister in their next meeting at the Central market on 10^th November 2002. But told her that they should buy the other property for $75,000.00.
26. It would appear from the sales agreement the late Isihanua was talking about PN: 191-008-75 which valued at a cost of $85,000.00 and the other property was $75,000.00. In any event that cannot easily be reconciled. Or that the Defendant was mistakenly belief of what the late Isihanua conveyed to the Defendant and wife initially.
27. In any respect, the Claimant and her late husband should have informed the Defendant and wife in clear term, that they had endorsed a sales agreement to purchase PN: 191-008-75 for $85,000.00 on 28^th October 2002. On this date the Defendant had yet to expend money on repair and renovation which commenced on 1^st December 2002.
28. Out of excitement the Defendant expended money on repair. Ideally he should have prolonged any spending until concrete agreement was made and the property is fully purchased. Apparently, the Defendant was too rush to act whilst even in the negotiation stage and expended money unnecessarily.
29. Eventually there is affirmation from the Claimant that her late husband had received the $20,000.00 deposited and paid to the late Yee for the purpose the Defendant intended to be. But there was no receipt issued
30. However, she agreed the payments the Defendant may have made to her late husband were for the rent of the property, and not a part payment of the property. The question to pause is, has the Defendant aware that monthly instalments were payment for rent and not for the property. If rent was there any tenancy agreement?
31. There is no reason why the Claimant or her late husband should inform the Defendant concisely. But then the issue of cost of reparation of the property is hanging on. There is no challenge to the Defendant’s evidence that the property was in a very bad stage when they saw it at first sight. Would the cost of repair be treated as rental as well, it can’t be.
32. According to the sworn statement of the Defendant he spent about a total of $33,321.25 to repair and renovate the property – see annexure “NK2”.
33. I noted that the Defendant’s family moved into the property on 1^st March 2003 and occupied it. From that date to the date this claim was filed on 15^th June 2021, is about eighteen (18) years or two hundred and sixteen months of occupation.
34. In search for a legal solution on the sum expended on renovation, one possible reason is that the Defendant was repairing somebody’s property and he was rushed to do so. Expectedly, his excuse would be that he was not aware of the sales agreement endorsed by the Claimant and late husband with the vendor.
35. According to the sworn statement of the Defendant, payment for the house should be completed by December 2004. From December 2004 to 4^th March 2006 there was nothing heard from the Claimant’s late husband, in terms of update and the issue of transferring the property?
36. With heaviness in his heart, the Defendant sent his wife to her brother the late Isihanua. They met at the shipping office and the late Isihanua told his sister that everything was ok. That did resolve the Defendant’s suspicion.
37. Finally on 24^th August 2007 the Claimant arrived at the Defendant’s house. She told him that the late Yee had sent her to inform him (Defendant) that he had never paid anything after the deposit of $20,000.00 was paid. Now it seems clear that the $20,000.00 deposited was received by the vendor but no receipt was issued and received by the Defendant.
38. The Defendant in reply said if you (Claimant) and husband had misused his money, or use it to pay for their own house then they should refund his monies.
39. On 24^th August 2007, the Defendant was aware of where all his monies went except for the $20,000.00 deposit, but without a receipt.
40. By then, it would be wise if the Defendant filed a law suit for the recovery of monthly instalment payments of $2,500.00 and all the money he expended in repairing the property. Rather than waiting for the Claimant and late husband to refund all his money so that he would pay the vendor.
41. Now the Court has no jurisdiction to make any order in respect of an issue that has been time barred under the limitation Act S.47. The Defendant had sat on his rights for 14 years after the limitation period runs from 24^th August 2007, the date the cause of action accrues.
42. Further anomaly befell the Defendant when he withdrew his counter-claim to rectify the title.
43. Now as it stands, the view expressed in his final submissions, admitting he has no legal title to the property. In the circumstances, it warrants the Defendant to divert to adopt the equitable remedy of constructive trust. This issue has taken more space in his final submissions.
44. Unfortunately the equitable principal of constructive trust was not pleaded in the defence. One party cannot ambush another without notice should he wish to raise an issue. The other party must be notified by way of pleadings so that it would have the opportunity to file a reply. This does not happen in this case. Therefore I cannot accept considering the entire submissions by the Defendant concerning constructive trust.
45. From all that I say and narrated as above, as reasons for decision, I must therefore grant all the relief sought in the claim.

Orders.

1. Order that Defendant pay damages to Claimant in the sum of $100,000.00 for trespassing into Parcel No. 191-008-75.
2. Order for possession of the property thereof.
3. Order that Defendant and members of his family occupying the property vacate the same immediately and do not re-enter.
4. Order for cost of this proceeding be paid by the Defendant to the Claimant on standard basis if not agreed upon.

The Court.
Hon Justice Rex Faukona.
DEPUTY CHIEF JUSTICE.