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Public Trustee v Objectors [2017] SBHC 68; HCSI-CC 539 of 2015 (4 September 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 539 of 2015

IN THE MATTER OF ESTATE OF JOACHIM BAEANISIA, LATE OF MALA’AFE, LANGALANGA, MALAITA PROVINCE, DECEASED INTESTATE.

IN THE MATTER OF THE PUBLIC TRUSTEE ACT (CAP 31).

IN THE MATTER OF AN APPLICATION FOR LETTERS OF ADMINISTRATION BY THE PUBLIC TRUSTEE.

IN THE MATTER OF A CLAIM IN THE ESTATE BY CATHY POLOSO.

AND:

IN THE MATTER OF OBJECTIONS BY JANE BAEANISIA AND OTHERS.

BETWEEN: PUBLIC TRUSTEE - Applicant

AND: OBJECTORS - Three Objector Groups

Date of Hearing: 15^th August 2017.
Date of Judgment: 4^th September 2017.

Mr. R. S. Muaki; Public Trustee for the Applicants (Wife and Children of Joachim Baeanisia).
Mr. D. Marahare for Objector Group 1 (Jane Baeanisia; Sibling of Abraham Baeanisia).
Mr. R. Firigeni for Objector Group 2 (Donald, Audrey, Clive and Pio; all Abraham Baeanisia Siblings).
Mr. B. Upwe for Objector Group 3 (Ms. Cathy Poloso - Third Party Purchaser).

KENIAPISIA; PJ:

JUDGMENT ON GRANT OF LETTERS OF ADMINISTRATION

Introduction

1. Public Trustee is applying for letters of administration over the estates of deceased, Joachim Baeanisia (“JB”), on behalf of the wife and children of JB. JB died intestate. The estate of JB are primarily Fixed Term Estates (“FTE”) in various parcels of registered lands in the White River Kakabona area, West of Honiara. There are thirty four (34) parcels altogether, if you take away the parcel that Cathy Poloso (third objector) bought from JB in 2015, Counsel Marahare says in oral submissions. Counsel Muaki says there are 36 parcels in written submission. Discrepancy will be settled at the relevant offices. Court will use the number 35 FTE parcels. According to Exhibit JB 1 of Jane Baeanisia statement filed 29/02/2016; there are 35 FTE parcels in JB’s name.
   
2. The 35 FTE parcels are a result of a sub-division made to the original Parcel Number 191-046-20 (“PN 20”). Savino Laugana and his group transferred the Perpetual Estate (“PE”) in the original PN 20, to Abraham Baeanisia and Joachim Baeanisia, on or around 15^th June 1994^[1]. Abraham Baeanisia and JB became joint owners of the PE since June 1994 and PE jointly registered in their names in 1995^[2]. Abraham Baeanisia (“AB”) is the father of JB. AB and JB are now deceased. Five other siblings of AB together with JB (the first born son) are in the order of seniority: Jane Baeanisia, Donald Baeanisia, Audrey Baeanisia, Clive Baeanisia and Pio Baeanisia.
   
3. The original PE in PN 20 was subsequently sub-divided, so that FTE parcels could be used to develop PN 20, into housing estate for rental and to share amongst the siblings of AB equally. This is why we now have 35 FTE parcels. The resulting 35 FTE parcels are disclosed in evidence, in Jane’s statement. AB died in June of 2015. JB died in August 2015. Both died intestate. Court found as a fact that AB own the original PE that resulted in the 35 FTE parcels as a father originally. JB own the original PE and the resulting FTEs as a son. AB as father of JB and 5 other siblings. JB as a son of AB, together with 5 other siblings. Court will state at the outset that whatever belong to JB will go to benefit JB’s wife and children. Similarly whatever belong to AB will go to benefit AB’s wife and children. With that, Court will now dig to see what the law says.
   

Material back ground facts not contested by Counsels at commencement of oral submissions

4. The starting point before discussing the law is, the PE in PN 20, the original parcel. Original parcel, the PE, was held in the joint names of AB (Father) and JB (First Born Son). It was subsequently sub-divided and, all the sub-divided plots, the FTE’s are now registered in the sole name of JB. Court has no evidence that JB bought all these FTEs from AB, his father. On the other hand, Court has evidence that in 2012, AB had intended and gave clear instructions, that the PE, be jointly retained; but be sub-divided and registered as FTEs in the sole name of JB for two reasons^[3]. Firstly to develop the FTE into housing estate. Secondly to share the sub-divided FTE parcels equally between the siblings of AB. The sub-divided FTE parcels are now registered in the sole name of JB; consistent with AB’s intention. The PE in PN 20 was originally a family property. In possession of the FTEs, JB had already sold one FTE parcel to Cathy Poloso, a transaction that will eventually go through to the end, whatever the outcome of this case. Applicants; Objector Group 1 and Objector Group 2 did not object the transaction. The origin of the 35 FTE parcels registered in the sole name of JB, is the PE in PN 20. The origin is the foundation. The origin must set the guideline for what transpired subsequently. The origin was in June 1994. The origin must guide what happens in 2017. The origin speaks of the following uncontested material facts; either impliedly or as agreed to by Counsels at commencement of submissions:-
   

4.1. The original PN 20, the PE, was a family property jointly registered in AB and JB names. The head or leader of that family property is AB, father of JB, firstborn son and joint owner. If AB was the father and JB was the son, then one would not be wrong to conclude that AB played a major role in acquiring the PE in the joint property, from the vendors here on Guadalcanal. It is public knowledge that AB was a prominent public figure and leader in Solomon Islands, having worked with the village people, through the SIDT^[4]. The PE in PN 20 and the original vendors are from Guadalcanal. To have sold PE in what appear to be big plot of land takes more than just money. I wonder if any AB relationship and friendship with the original vendors, had influenced AB and his son’s acquiring of the original PE?

4.2. What occurred originally is the usual and common thing to have happened when a family owns a big tangible property like land. That title would vest in the leader (father) and the next leader of the family (the first born son) – reasonable ordinary Malaitan/Solomon Islander - (objective test).

4.3. There is evidence before this Court that the original property (the PE in PN 20) was a joint family owned property.

4.4. The subsequent sub-divisions into FTEs were consistent with one of the original joint owners or may I say the original family leader’s intentions contained in the 2 letters referred to in Jane’s statement at Exhibit JB 5. Intention was to develop housing estates and to equally, share the FTE parcels amongst AB’s off springs.

4.5. A father having care, love and concern for all of his off springs is the accepted fatherly behaviour. A father having care, love and concern for the first born child at the detriment of the other off-springs would be an unconceivable fatherly behaviour, certainly not in a Malaitan culture or Solomon Islands culture that I know of – reasonable ordinary Malaitan /Solomon Islander - (objective test).

5. From the evidence, it is not clear how much money each joint owner contributed towards the $15,000.00 original purchase price (consideration) for the PE in PN 20. Court will nevertheless imply that both deceased made monetary contributions. Particularly Court will imply that AB had made substantial monetary contribution to the original consideration. It is public knowledge that AB was working in SIDT, as the most senior figure, the director. He would no doubt have access to finance. What is clear from the circumstantial evidence is, there was a common understanding that it was a joint family property to benefit equally all the off-springs of AB.
   
6. What transpired later leading to the legal title of the resulting FTE parcels registered in the sole name of JB was consistent with AB’s intentions. This will most probably explain the absence of any evidence that JB bought the resulting FTE parcels in the 35 parcels from AB. Court will now turn to the submissions on the law.
   

The Law – submissions by Public Trustee and other Counsels

7. Court concur with submissions by Public Trustee (PT), that the Registrar of Titles dispensed with the requirement of Section 195 (3) of the Lands and Titles Act (Cap 133) – (“the LTA”) being satisfied, that both AB and JB are the only beneficiaries of the PE in PN 20, in accordance with the proviso contained in that section. The cases on statutory trusts cited by Counsel for the PT can be distinguished and do not apply to the facts of this case. In Kuve^[5] case, the subject land was crown land; being returned to the original owners in custom. The Perogolo^[6] case was a customary land registered and held by trustees for and on behalf of customary owners as beneficiaries. Also a case on specific performance to enforce a contract to transfer part of the customary registered land. This case is about a joint family property. Court is of the view that statutory trust on the basis of cases cited by PT do not apply to the estates herein. Statutory trust apply in situations where an estate is subject to sale (Kuve and Perogolo case). For a different reason; statutory trusts submissions by Counsel Marahare in relation to sole owner being a “beneficiary” or alternatively a “trustee” under Section 212 (1) of the LTA, would apply in this case, under constructive trust, not as statutory trust stand alone.
   
8. Counsel for the PT is essentially saying that because there was no joint statutory declarations by AB and JB as required by Section 195 (3) of LTA, the properties pass automatically to the surviving joint owner (JB) in June 2015; after AB died in June 2015. JB died later in August 2015. Therefore only JB was the sole owner of the FTE parcels. The estate of JB (intestate) should accordingly passed onto his off springs and letters of administration held by PT on their behalf. Would the law serve justice and fairness to allow a joint family property; to end up in the hands of one family member of the AB family only?
   

Constructive trust; as an equitable intervention

9. Where the arms of the law cannot do justice to the case, then equity will step in to aid the law attain justice. This is where I turn to constructive trust as an equitable remedy. The remedial objective of constructive trust in “righting a wrong” positively apply to the circumstances of this case (repeat and reaffirm facts in paragraphs 2, 3, 4, 5 and 6 above). A fair and just conduct (equity) should be the focus, based on the merit of each case, rather than the rigid general application of the law, which may not attain justice to all the varying contexts, in which issues may arise. The “wrong” I am talking about here is the “unjust enrichment” from a family property by the first born son (JB) at the detriment of the other 5 siblings. Court has evidence of that unjust enrichment - sale to third objector herein, of one of the FTE parcels. Substantive part of the money paid by Cathy Poloso has benefited JB and or his wife or children. Balance of the money now awaits the outcome of this case. AB’s intention was equal share of the 35 FTE parcels between all his siblings.
   
10. Constructive trust as an equitable remedy has been recognised and applied in this Court in Ilabae^[7] and Toliliu^[8]. Constructive trust is judicially construed where the court feels, that the individual circumstances justify its imposition. Court will do this where the circumstances meant that “good conscience” require the court to do so.
    
11. Court’s respectful view is that the circumstances of this case (repeat and reaffirm facts in paragraphs 2, 3, 4, 5 and 6 above) have created a constructive trust, whereby the holder of the legal title in the FTEs (Mr JB), was a trustee for the beneficiaries (AB’s siblings – JB included) of the trust properties (35 FTE parcels). The settlor is AB and JP jointly. The circumstances meant that by “good conscience”, constructive trust is highly likely to protect the preservation of blood ties, family connectivity and togetherness of the AB family. This is doing justice and fairness to AB family.
    

Can the PT be given letters of administration in the circumstances?

12. The next issue is whether the PT should be given letters of administration in respect of the FTE parcels registered in the name of JB. Again “good conscience” require that an independent person like the PT should administer the estate of JB for the benefit of all of AB’s children as beneficiaries of the trust properties. Court has evidence that there is break down^[9] of relationship between the off-springs of AB; in relation to the 35 FTE parcels. Court also take notice of the instructions given to the PT in this application, acting for the children of JB and arguing that the 35 FTE parcels belong to JB only. Circumstances have revealed that the 35 FTE parcels are family owned properties; belonging to the AB family as beneficiaries. Therefore the PT can administer JB properties/estates for the benefit of AB children; JB’s children included. The PT is now the trustee of the trust properties in line with Section 19 (1) (b) and (d) of the Public Trustee Act (Cap 31). This fits perfectly well with Section 5 (2) of this Act. That is to say, Court can grant letters of administration to the PT; if circumstances justify and the Court sees fit; even though there are persons, who in the ordinary course, would be legally entitled to administer the estate of a deceased in preference to the PT.
    

Conclusion and Orders

13. In conclusion Court will make the following remarks in passing. It must be made clear to parties, that this Court maintains an ongoing role in the administration of estates. The administration by the appointed administrator (PT) is carried out by authority of this Court. And if any beneficiary is unhappy about the administration and distribution of the deceased’s estate, they are entitled to come to this Court, to ensure the administration is being conducted in accordance with the law. And the law, inter alia, require that, the purpose of a proper administration of a deceased’s property, is to ensure the property benefits the deceased’s dependants. Applicants, Objector Group 1 and Objector Group 2 in my respectful view qualify as dependants for the purpose of proper administration of JB’s estate, who died intestate. Objector Group 3, the transaction will see through to the end and money shared equally between all of AB’s siblings accounting for the share JB already obtained and used.
    
14. The orders of this Court are:-
    

14.1 Grant Letters of Administration to the Applicant, Public Trustee.

14.2 Public Trustee is duty bound to administer the estate of the deceased in accordance to the law.

14.3 No order on costs.

THE COURT

-----------------------------
JOHN A KENIAPISIA
PUISNE JUDGE

^[1] See Exhibit JB 4 of Jane’s statement filed 29/02/2016.
^[2] See Exhibit JB 4 of Jane’s statement filed 29/02/2016.

^[3] See the 2 letters in Jane’s statement at Exhibit JB 5.
^[4] Solomon Islands Development Trust.

^[5] Kuve –v- Ragoso (2002) SBHC 90; HC-CC 232 of 1999 (25^th October 2002).
^[6] Perogolo –v- Laugana (2011) BHC 103; HCSI-CC 152 of 2009 (3^rd October 2011).

^[7] Ilabae –v- Sifoni (2014) SBHC 144; HCSI-CC 196 of 2010 (29^th September 2014); not over-turned on appeal in the Court of Appeal – Sifoni –v- Ilabae (2015) SBCA 19; SICOA-CRAC 32 of 2014 (9^th October 2015).
^[8] Toliliu –v- Toliliu (2008) SBHC 25; HCSI-CC 248 of 2004 (9^th June 2008).

^[9] See Exhibit JB 2 of Jane’s statement - letter from Public Solicitor on behalf of JB to his other AB siblings.