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Kisekol v Kisekol (No 2) [2009] PGNC 191; N3803 (6 October 2009)

N3803

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 171 OF 2009
(NO. 2)

BETWEEN:

BARBARA GAWI KISEKOL
Plaintiff

AND:

BERNARD KISEKOL
First Defendant

AND:

DICKSON KISOMBO AND SERAH KISOMBO trading as CONVENIENT REAL ESTATE
Second Defendant

AND:

BANK OF SOUTH PACIFIC LIMITED
Third Defendant

Waigani: Davani .J
2009: 29th, 30th September
2nd, 6th October

MATRIMONIAL PROPERTY – application for declarations that the plaintiff holds constructive trust in property – title to the property in first defendant’s name only.

MATRIMONIAL PROPERTY – discussion of circumstances in which a constructive trust can be declared – that it can be implied or expressed.

Facts

The plaintiff and the first defendant are married but as at the date of the proceedings on 2nd April, 2009, were living separately and apart. A house was purchased, located at Section 17, Allotment 3, Guitana Avenue, Matirogo, National Capital District. The first defendant sold the house with vacant possession to the second defendant whilst the plaintiff was in occupation. The plaintiff refuses to vacate the property because she claims she holds constructive trust in the property and wants her 50% share of the proceeds of the sale of the house, before she vacates.

The plaintiff claims that the first defendant had told her that the property was jointly owned by both the first defendant and herself. He had told her that the title to the property was in his name only because he was the one repaying the loan. Believing that the property was hers also, the plaintiff made improvements to the property and also made other contributions.

The plaintiff seeks to be declared as holding constructive trust in the property after which she seeks payment of 50% share of the good value of the property.

Issues

1. Was there an express or implied agreement for the plaintiff to be joint owner of the property?

2. From that agreement, can the Court deduce that there was a common intention that the plaintiff should have a beneficial interest in the property?

3. That relying on that intention, did the plaintiff act to her detriment by contributing to improvement to the property, in one way or another?

Held

1. There were both express and implied agreements.

2. The Court deduced from the evidence, that there was a common intention that the plaintiff should have a beneficial interest in the property.

3. That relying on that intention, the plaintiff made contributions to improvements on the property and other contributions as well.

4. Therefore, the plaintiff holds a constructive trust in the property.

5. The Court orders accordingly in the terms set out further below.

Cases Cited:

Papua New Guinea Cases

Nil

Overseas Cases

Pettitt v. Pettitt [1969] UKHL 5; [1970] AC 777
Gissing v. Gissing [1970] UKHL 3; [1971] AC 886
Eves v. Eves [1975] EWCA Civ 3; [1975] 3 All ER 768, [1975] 1 WLR 1338
Grant v. Edwards [1986] EWCA Civ 4; [1986] Ch. 638, [1986] 2 All ER 426

Other References

Bromleys Family Law (Eight Edition) (1992)

Counsel

M. Kokiva, for the plaintiff
N Tenige, for the first defendant
M. Nasil, for the second defendant
A. Daniels, for the third defendant

6th October, 2009

DECISION
(NO. 2)

1. DAVANI .J – Before me is Originating Summons filed on 2nd April, 2009 by Martha & Associates Lawyers, for and on behalf of the plaintiff. The Originating Summons seeks orders, amongst others, for a Declaration that the plaintiff holds in constructive trust Section 17 Allotment 3 Matirogo, National Capital District (the ‘property’) and that she is entitled to her 50 percent share in the property. I should also point out that I have published reasons in this matter, handed down on 3rd September, 2009 where I dealt with how the named defendants should deal with the loan monies paid to them by the third defendant. As at the date of this decision, I do not know if parties have complied with my orders.

2. The orders sought in the Originating Summons are;

(i) A Declaration that pursuant to the principles and rules of common law and equity that existed in England immediately before independence adopted by Schedule 2.2 of the Constitution of Papua New Guinea, the defendant holds the property at Section 17 Allotment 3 Matirogo, National Capital District, in constructive trust for the plaintiff as co-owner of the property;

(ii) A Declaration that the plaintiff is entitled to her 50 percent share in the property;

(iii) An Order that the defendant sell the property at the best possible price and pay the plaintiff her 50 percent share of the proceeds of the sale;

(iv) That the defendant pays the plaintiffs costs of these proceedings;

(v) That the entry of the orders be abridged to the time of settlement by the Registrar which shall take place forthwith;

(vi) Any other orders the Court deems meet.

Background facts

3. The plaintiff and the first defendant were married on 3rd September, 1995 according to the rites of the United Pentecostal Church. Customary bride price was also exchanged.

4. The parties separated in or about April 2006 when the first defendant left the property, also to be described as the matrimonial home in these proceedings.

5. The application now before the Court by the plaintiff is to be declared as holding a constructive trust in the property because the first defendant, who is the registered proprietor of the property, intends to sell or has sold the property to the second defendant.

6. The Bank of South Pacific who are named as the third defendant, are the mortgagee, having given a loan to the second defendant to purchase the property.

7. The plaintiff claims she has constructive trust in the property because she has contributed a lot to the purchase and the development of that property, even though the first defendant holds sole title to the property. I set out these details further below.

8. The second defendants only wish is to take possession of the property because they claim to have paid the full purchase price to the first defendant and are now in the process of repaying the loan.

9. Also brought to the Court’s attention is the existence of proceedings WS 813 of 2008 between one Edwin Acosta as the plaintiff, the first defendant, named as the first defendant and the second defendant named as the second defendant. On those proceedings is Court Order/default judgment of 5th November, 2008 where the National Court ordered specific performance of a written agreement dated 27th December, 2006 between Edwin Acosta as purchaser and the first and second defendants as vendors. The Court also ordered that general damages be assessed.

10. The allegations in the Statement of Claim filed in those proceedings are that the plaintiff paid to the first and second defendants, the sum of K23,000.00 and K12,000.00 respectively, a total sum of K35,000.00, as deposit for the purchase price of the property and that this was done pursuant to the said written agreement made between the plaintiff Edwin Acosta and the first defendant where the first defendant agreed to sell to Edwin Acosta, the property, the subject of these proceedings.

11. The plaintiff in WS 813 of 2008 pleaded in the Statement of Claim that he also took out a loan on 15th January, 2007 to pay the deposit for the property and that he is still repaying the loan, although he is not residing on the property.

This application

12. To fully comprehend and understand the events in relation to the multiple sale of the property, I set out below a chronology of the events in relation to this property;

(i) a transfer to Bernard Kisekol was registered on the Title Deed to the property, produced on 7th July, 2000 and entered on 26th July, 2000;

(ii) a mortgage to Papua New Guinea Banking Corporation entered on the Title Deed was produced on 7th July, 2000 and entered on 26th July, 2000;

(iii) According to proceedings WS 813 of 2008, by Contract for Sale dated 27th December, 2006, the first defendant agreed to sell the property to Edwin Acosta and Elena Acosta. According to the entries on the copy Title Deed before me, the latest entry is the Mortgage to the Papua New Guinea Banking Corporation referred to in (ii) above. There is no entry in the folio to the Title Deed, of the alleged transfer to Edwin Acosta; (my emphasis)

(iv) On Or about January and February 2009, the first defendant entered into negotiations with the second defendants to sell the property to the second defendants;

(v) On 6th March, 2009, the first and second defendants signed the Contract for Sale and Transfer Instrument relating to the property. The second defendants took out a loan from the third defendant to purchase that property. The loan repayment was agreed at K6,500.00 per month to be effective on 9th June, 2009 (referred to in Dickson Kisombo’s affidavit sworn on 30th June, 2009);

(vi) On 17th April, 2009, the plaintiff in these proceedings, obtained an order restraining the first defendant from selling the property until the substantive matter is heard and determined. The further orders were that the first defendant be restrained from evicting, harassing, threatening or intimidating the plaintiff and her children from the property until the hearing of the substantive matter. The orders were also that the Court give a date for the hearing of the Originating Summons.

13. In my 3rd September, 2009 decision, I raised various concerns as to why the first defendant sold the property on two occasions knowing full well that the property was always occupied by the plaintiff. The most disturbing is that both the Bank of South Pacific (‘third defendant’), and the second defendant executed Contracts which were "subject to vacant possession" when the plaintiff has always been resident on the property. As a result, the second defendant has committed himself to a loan which he is presently repaying and is unable to rent out the property because the plaintiff is still resident on the property. As I mentioned in Court and in my 3rd September decision, that is a risk he took when he, through his lawyers and with the Bank, entered into the sale, knowing full well there was a tenant on it. Somebody is responsible for the serious predicament the second defendant is in. That somebody is answerable to the second defendant for whatever loss he presently suffers. In my view, it is not the plaintiff because she has always been resident on the property and is not aware of the first defendant’s actions in selling and reselling the property. If the second defendant had a lawyer acting for him, then he has a claim against that lawyer for professional negligence. Again, as I intimated to Counsel in Court, lawyers through the defendants including the Bank’s lawyers are responsible for the mess that the second defendant is now in. And I must add, the second defendant should also assume some responsibility for the predicament he now faces. Additionally, the Court Orders in WS 813 of 2008 are also a matter of concern. Although, the Court ordered the specific performance of the Contract of Sale between the plaintiff in that matter and the first and second defendants in this case, the both have not complied with these orders, a clear blatant breach of those orders. Their inaction has seen Edwin Acosta paying off a loan for a property he is not resident on. Another factor I note is that the same bank that gave a loan to the second defendant in this case, also gave a loan to the same defendants in WS 813 of 2008. How did that same bank, being the Bank of South Pacific, assess the loan application from the same defendants and approve it, when the first sale still fell through and there are existing court proceedings over the same property? These are serious concerns indeed and that the Court in WS 813 of 2008, must deal with. But one can ask why this Court is proceeding to deal with this matter when there is already an order for specific performance of a Contract for Sale in relation to the same property. Both counsel have not addressed on this aspect focusing largely on the OS now before this Court. I, sitting as the Court, proceeded to deal with the application because of existing facts set out above. That the issue of constructive trust must be determined before the matter is taken any further. As I said above, the Court in WS 813 of 2008 will ultimately deal with the aspect of damages so I need not dwell on this anymore.

14. To assist in alleviating the issues faced by the parties in these proceedings, I issued the orders of 3rd September, 2009 to ensure that the funds were returned to either the Bank or they were frozen pending the completion of the substantive hearing. Also these orders were directed to the Bank not to exercise its powers of default as against the second defendant until after the substantive matter is heard and determined.

15. Mr Nasil for the second defendant, did not file any affidavit material to demonstrate the actions he has taken, in compliance with my orders of 3rd September, 2009. I should say that all parties did not file affidavits to show the steps they had taken in relation to the loan monies given by the Bank and the Bank’s mortgages, and to demonstrate their compliance with my orders. That is normal practise. The only evidence that throws some light into compliance or not with my orders are the affidavits from the bank officers which depose that the sale is settled and complete.

Analysis of evidence and the law

16. The plaintiff relies on the following affidavits in support of her application;

(i) her affidavit sworn on 9th September, 2009 and filed on 10th September, 2009;

(ii) her affidavit sworn on 7th July, 2009 and filed on 8th July, 2009;

(iii) her further affidavit sworn on 7th July, 2009 and filed on 8th July, 2009;

(iv) her affidavit sworn on 19th June, 2009 and filed on 22nd June, 2009.

17. The first defendant relies on the following affidavits;

(i) his affidavit sworn on 18th June, 2009 and filed on 19th June, 2009;

(ii) his affidavit sworn and filed on 14th September, 2009.

18. The second defendant relies on his affidavit sworn on 30th June, 2009 and filed on 2nd July, 2009.

19. The evidence is that the first defendant entered into the sale of the property with Edwin Acosta and Elena Acosta, knowing full well that the plaintiff was still resident on the property.

20. The affidavit material put before the Court by the plaintiff and the first defendant demonstrates that the plaintiffs intention was always to remain in that house. The evidence is also that if the house were to be sold, that it must be done with the plaintiffs consent because she wants her 50 percent share from the sale of the property. For the Court to determine whether she is entitled to her 50 percent share, I will consider the law on constructive trusts.

21. Megarry’s Manual of Real Property at pg.312 states;

"A constructive trust arises where there is an express or implied agreement that the legal owner’s ‘partner’ is to have a distinct interest in the land and the ‘partner’ has acted to his own detriment on the faith of such agreement so that it would be unconscionable for the legal owner to deny the existence of the ‘partner’s interest".

22. Ms Kokiva provided extensive written submissions on this subject which I set out in full below.

23. There are two issues that must be addressed before it is determined that a constructive trust exists. First, it must be established that there is an agreement between the legal owner and the ‘partner’ that the land or property is to be jointly owned; that the partner is to have a distinct interest in the property. That agreement can be either express or implied. Secondly, once an agreement of the sort is established, it must be shown that the partner acted on the belief of that agreement to his or her detriment. The legal owner, is then said to become constructive trustee for the partner and holds the property in trust for the partner. The legal owner must then give effect to the partner’s share of the property. For instance, in Dessham [1975] 1 W.L.R. 1519, the husband and wife agreed that a house would be put in their joint names. The husband however deceived the wife and had the property put in his name alone. The Court assumed that the wife acted to her own detriment and so it ruled that the husband became constructive trustee to give effect to the wife’s share.

24. It is vital that there must be an agreement. In Pettitt v. Pettitt [1969] UKHL 5; [1970] AC 777, legal title to the matrimonial home was vested in the wife alone and the husband made substantial improvements. However, there was no evidence of an agreement and the House of Lords held that the husband had no interest. In Gissing v. Gissing [1970] UKHL 3; [1971] AC 886, the house was conveyed to the husband’s name alone, the husband and wife had been married for 16 years and the wife had contributed substantially towards furniture and the laying of a lawn. There was however no evidence of an agreement that the wife would have an interest in the property. The House of Lords held that she had no interest.

25. The agreement can be implied from the statement of the legal owner before or at the time of the purchase of the property. The statement would be evidence of "a common intention" that the partner would have a beneficial interest in the property, regardless of what the legal owner’s hidden intention was. For instance, in the case of Eves v. Eves [1975] EWCA Civ 3; [1975] 3 All ER 768, [1975] 1 WLR 1338, husband and wife purchased a house in which it was intended that both should live. The husband provided all of the purchase money and conveyed the house into his name alone. He told his wife that if she was over the age of 21 years, he would have conveyed the house to both his name and hers. However, because she was under the age of 21 years, the house had to be put in his name alone. She believed him. The house was in a very bad state. In reliance on the husband’s statement, she did a lot of heavy work to do the house up. Four and half years later, the relationship broke down and the husband told her that his statement was an excuse and that he never intended for her to have a share in the property. The wife successfully sued claiming that a constructive trust existed. The Court of Appeal held that the husband held the legal estate in trust for sale for himself and for his wife.

26. Once it is established that there was a common intention that the partner had a beneficial interest in the property and that the partner relied on that common intention or statement to her detriment, it is immaterial that the partner did not contribute financially to the purchase price of the property. For instance, in Eves v. Eves (supra), the husband provided all of the purchase money and the wife did not make any financial contributions to the purchase price. What she did was a lot of heavy work to do the house up.

27. The principles are the same regardless of whether the legal owner and the partner are married or not. The Court of Appeal in Grant v. Edwards [1986] EWCA Civ 4; [1986] Ch. 638, [1986] 2 All ER 426, followed the case of Eves v. Eves (supra). In Grant v. Edwards, the relationship was a de facto one between George Edwards and Mrs Linda Grant, who was married to someone else and had matrimonial proceedings pending between herself and her husband. A house was bought in the name of Mr Edwards and his brother for Mr Edwards and Mrs Grant to live in. Edwards told Grant that her name would not go on the title for the time being because it would cause prejudice in the pending matrimonial proceedings. In reality, he had no intention of conveying any legal title to her. He paid the deposit on the house and most of the repayment on the mortgages. She relied on his statement and contributed towards general household expenses, provided housekeeping and brought up the children. Eleven years later, the couple separated. The Court held that Edwards’ statement that Grant’s name would have appeared on the title except that it could cause prejudice to her matrimonial proceedings was evidence of a common intention that Grant would have an interest (a half share) in the property, and Grant had relied on the common intention to her detriment. A constructive trust was held to exist and she was entitled to her half share in the property.

28. Eves v. Eves (supra) was cited in the PNG case of Wendy Bulage v. Cassy Ben (supra) by Brunton .J, as he then was when he mentioned the principle of constructive trusts briefly;

"A more modern example is Eves v. Eves [1975] EWCA Civ 3; [1975] 1 WLR 1338... It was said to be part of the bargain between the parties, expressed or to be implied that the women should contribute her labour towards repairing the house and get a beneficial interest in the house. The arrangement was held to be enforceable by way of either a contract or constructive trust. The essence of the modern cases seem to be that there was some sort of an agreement, either express or implied between the parties in relation to some property, either express or implied between the parties in relation to some property, and that one of the parties acted in reliance on the promise (either express or implied)."

29. As to the evidence on constructive trust, the plaintiff and the first defendant were cross-examined at length on the contents of their affidavits.

30. Upon hearing evidence from both parties, the conclusion I reached was as to whom I should believe. The plaintiff insists that she was the one who arranged for the house to be purchased by the first defendant. In her evidence, she also claims that she made some contributions to the purchase of the house which contributions are set out in her affidavit sworn on 7th September, 2009 and filed on 8th July, 2009. Those alleged contributions the first defendant vehemently denies. Throughout cross-examination by first defendant’s counsel, the plaintiff maintained that the contributions she made were to go towards the purchase of the house whilst the first defendant maintains they were not.

31. The plaintiffs affidavit sworn on 7th July, 2008 and filed on 8th July, 2008, deposes to her contributions to the property. I have set out in full the full text of that affidavit in my decision of 3rd September, 2009. The "contributions" that I can immediately and with no difficulty, decide on, are the following;

(i) Item 8. – airline tickets at K18,000.00. The plaintiff claims these monies were airline tickets for her and two children for the period 2005 to 2008 from Port Moresby/Manus/Port Moresby which the first defendant claimed but never passed onto her and the children. The first defendant says that because they were no longer living together, that he need not claim them. I accept that. I also do not see how they can be a contribution to the purchase price of the property.

(ii) Item 7 – The plaintiff claims the sum of K300,000.00 which she alleges is savings for the price of K350,000.00 from K650,000.00, a difference of K300,000.00, being purchase price for the property. The plaintiff claims to have stopped a sale to an early buyer, of K650,000.00 which was reduced to K350,000.00, hence a savings of K300,000.00. I do not consider that to be a contribution to the purchase price of the property.

(iii) Item 6 – The plaintiff left work to care for the baby upon the first defendant’s request. She claims to have sacrificed earnings of K11,700.00 per year from 2001, total sum of K23,400.00. I do not consider that to be a contribution to the purchase price of the property.

32. In relation to the other claims of contributions, I accept that the plaintiff made some contribution in one way or another towards assisting her husband purchase the house. In terms of the monetary amount she claims to have made, she does not have any documentary evidence to prove that. But the fact is that she has always been resident on that property and has always refused to move, despite her husband’s insistence on her moving out, even to the extent of exhibiting violence upon her, as demonstrated in her affidavits and which is the reason why she took out restraining orders restraining the first defendant and his accomplices from terrorising her in her home.

33. The first defendant’s lawyer submits that the plaintiff does not come to Court with clean hands because she has been renting the property and benefitting from the rental proceeds. He submits that this fact was not made known in her affidavit material. However, it is not as if the first defendant was not aware of the fact that the plaintiff was renting the property and which monies were used for the care and upkeep of the two children and herself because she is presently unemployed. The property is rented at K500.00 per week, a total of K2,338.53 per month. The first defendant is aware of this because on one occasion, the plaintiff gave him about K2,300.00 from the rental proceeds. The plaintiffs evidence is also that there have been several tenants because the first defendant is not in agreement with what she is doing and that the tenants have always moved on.

34. I find that the plaintiff has had to put the property up for rent, then rent it, for her survival and for the survival of the two children of the marriage. The first defendant has not financially maintained them anymore, although he claims to give lunch monies to the two children on their requests, which I see is his responsibility and which he must do whether they request or not. Therefore, I find that the rental monies that is put to the maintenance of the plaintiff and the two children, are monies put to good use.

35. As to parties coming to Court with clean hands, I note the plaintiffs affidavit of 7th July, 2009 in which she deposes that even as at 2nd, 4th and 5th March, 2009, when she, together with her lawyer and the first defendant’s lawyer, met to negotiate an amicable agreement, that the first defendant never told her about the impending sale by himself of the property to the second defendant. The plaintiff claims that the first defendant was selling the property and had no intention of advising her. That I see is obvious from the evidence.

36. The first defendant’s evidence is always that at no time, did he intend that the property will be held in joint tenancy. The first defendant’s main concern is that he believes the plaintiff is presently having an affair and is often seen with a particular man. He does not believe that any monies he gives her will be applied towards the care and up-keep of the two children of their marriage but will be used by the plaintiff on her new partner. As mentioned above, he claims that the children are affected by this behaviour in that Elizah does not regularly attend school and Elaine often has no bus fares and lunch money, when she then approaches the first defendant for assistance.

37. The situation is such that the plaintiff is presently unemployed. She needs financial assistance to care for the two children and herself until such time she secures employment. At the present time, she relies on the rental proceeds from the house. Also at the present time, she firmly believes that the house that she resides in is property that she owns jointly with the first defendant. It was not until this year (2009) that she learnt that not to be the case. She has all along believed the house to be hers together with the first defendant.

38. Again, going back to the legal position, the claimant must show two things;

(i) That the parties had a common intention that she should have a beneficial interest in the property acquired; and

(ii) That she has acted to her detriment on the basis of, or in reliance on, that intention.

39. Equity will not allow the other party to deny that the claimant has an interest and will construct a trust to give effect to it (see Bromleys Family Law (Eight Edition) (1992) pg.591).

40. The common intention can either be expressed or it can be inferred from the party’s conduct. What is important is what one party leads the other to believe that he intends, whether this represents his true intention or not, as opposed to an express agreement which is rare (see Eves v. Eves (supra)).

41. This then takes me to the plaintiffs earlier evidence, her affidavit sworn on 1st April, 2009. There, she deposes that in September, 1998, the first defendant was a Pastor of their Church. At that time, they were residing in a rented flat at Henao Drive, Gordons. Prior to that, they had rented several other homes. They always held Christian gatherings or fellowships at their places of residence.

42. She deposes that in mid 1999, the first defendant and her talked about renting a house rather than a flat to give them more freedom and privacy for their fellowships. She said she located the property through an advertisement in the Post Courier, then contacted the then landlord, Mrs Mary Onzem. She rang the first defendant and told him about it and he said he would have a look at the property. That was when she went there with one other female to inspect the property. She said the owner of the property and her then telephoned the first defendant and told him that she was happy with the property and she liked it. She said after about six months of renting, Mrs Mary Onzem told them that they wanted to sell the property. She said she negotiated with Mr and Mrs Onzem to purchase the property. She deposes that the first defendant said that he would purchase the property as joint tenants but that the purchase would be in his name alone to make it easier for mortgage payments through his salary deduction. She said the first defendant then took out a loan to purchase the property, over which the Bank had a mortgage. She said all the time her knowledge and understanding was that the first defendant and her were equal co-owners of the property even though it was registered in his name alone. This was because he always referred to that property as "their home". Her evidence is also that after she learnt that he had purchased the house as a sole tenant, she questioned him and he said "The Bank would not allow that because I am paying the mortgage and not you." He then said "The bottom line is that it’s ours and you’ve got to be happy that you own a house." (See par.5 of plaintiffs affidavit sworn on 9th September, 2009 and filed on 10th September, 2009). Before that he told her "At last you have your own home mum and thank God". (See par.4 of same affidavit).

43. She said she also purchased palm trees and other flowers and planted them on the property to beautify the premises.

44. To this, the first defendant by his affidavit of 14th September, 2009, denies all that. He raises other allegations in there which are not supported by independent evidence. In family cases involving children, often there are serious allegations by either party of abuse against children. Usually, these allegations are not supported by evidence. It is a case of the plaintiffs word against the first defendant’s word, as in this case.

45. In my view, the evidence in relation to joint purchase would have been the evidence before purchase, at the time of purchase, and soon after. I accept the evidence that when the first defendant was a Pastor, that his wife and him had agreed to purchase the house in joint names. At that time, the relationship was a happy amicable relationship and the purchase of the property in joint names would have been their intention then. It was much later that the plaintiff and the first defendant began experiencing matrimonial disharmony. But that does not change the position taken earlier, which is that the property was to be purchased for the family. The first defendant, being a Pastor then, would have been a man of his word. In fact the plaintiff said in evidence that she believed and accepted his explanation and that "his word was good enough for her." (See pars. 2 to 5 of plaintiffs affidavit sworn on 9th September, 2009 and filed on 10th September, 2009 and her verbal evidence). Paras. 2 to 6 of that affidavit reads;

"2. At the time of the purchase of the property at Section 176 Allotment 3, Matirogo, I told Bernard Kisekol," Have the house registered under both our names as a joint title." Bernard answered, "Yes, I will arrange that."

3. However when he arranged and signed the sale documents, he left my name out and just had his name in the documents as the Purchaser.

4. After the completion of the sale, he brought the documents to me at the house and announced to me and the children, "At last you have your own home, mum, and thank God."

5. However, when I saw the documents I noticed that the property was transferred to him in his sole name. I asked him, "Why is my name not in the title as a joint account?" Bernard replied, "The Bank wouldn’t allow that because I’m paying the mortgage and not you." I said, "Is that so!", then he said, "The bottom line is that it’s ours and you’ve got to be happy that you own a house."

6. I believed him because he was my husband and Pastor and his word was good enough for me. I did not worry about the title being in his name only as I was assured by him that I was co-owner. We prayed and thanked God for the property that very afternoon."

46. The plaintiff says that by the first defendant’s statements to her, there was an oral agreement between him and herself that she was part owner of the property. She said that she relied on his statements and their oral agreement and therefore made contributions towards her interest in the property, in cash and kind, on the belief that she was part-owner of the property. These are summarised in her affidavit sworn on 7th July, 2009 (plaintiffs exhibit 4, para 2-3, plaintiffs oral evidence).

47. The first defendant admits that he had private discussions with the plaintiff before the purchase of the property in 2000, but denies that those allegations had anything to do with joint ownership of the property. He chose not to elaborate on those discussions but merely said that they were normal husband and wife discussions. He says that he never intended that the plaintiff would be part owner with him, and that he never said that he would include her name to be a joint purchaser/owner with him. He says that is why he purchased the property in his name alone. He reasons that if there was any such statements and agreement, then as they are both educated persons, they would have said so, and the property would have been purchased in both their names.

48. When asked in examination-in-chief if he recalled the plaintiff asking him to put her name on the title, he answered, "I don’t recall." When his lawyer, Mr. Tenige asked him, "You don’t recall because she did not say that or you don’t recall?" The first defendant said, "I don’t recall. She may have said it but I don’t recall".

49. He admitted that the plaintiff gave him cash after the purchase of the property at various times but disagreed with the amounts she claims. He admitted that she contributed to maintaining the property, designing and contributing to the extensions of the property, maintaining the family, resigning from her job at SP Brewery, but he says that she did those because she was his wife, not because she was part owner of the property. He says that he paid for all maintenance and kept the receipts himself, but did not produce any receipts at the trial.

50. Based on all the evidence above, I find that the common intention at that time was for the purchase of the house for the family, to be held in joint names. The intention was both express and implied.

51. As to costs, the plaintiff is the innocent party in all these. She was forced into filing these court proceedings because of the actions taken by the first, second and third defendants. They will pay her costs of these proceedings.

Formal orders

52. I therefore make the following orders;

1. That the first defendant hold the property located at Section 17 Allotment 03 Matirogo, National Capital District, in constructive trust for the plaintiff as co-owner of the property;

2. That the plaintiff is entitled to a 50 percent share in the property;

3. That the first defendant pays the plaintiff her 50 percent share of the proceeds of the sale of the property to the second defendant;

4. That the first defendant arrange for these monies to be paid to the plaintiff, which monies are presently held in either the first defendant’s bank account with the third defendant or the second defendants’ account no. 100545992, held at the third defendant’s Waigani Branch and that this must be done, forthwith;

5. That the restraining orders of 17th April, 2009, will continue until such time the monies referred to in pars.3 and 4 herein are paid;

6. That the Court Order of 24th June, 2009 freezing the second defendants’ account referred to in par. 4 hereof, will lapse, after payment to the plaintiff of the monies referred to in paras.3 and 4 herein;

7. That the plaintiff will continue to reside on the property until the monies referred to in paras.3 and 4 herein are paid to her;

8. Upon compliance with the order to pay, all court orders will automatically lapse;

9. The first, second and third defendants shall pay the plaintiffs costs of the proceedings, to be taxed if not agreed.

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Martha & Associates Lawyers: Lawyers for the Plaintiff
Tenige Lawyers: Lawyers for the First Defendant
Nasil Lawyers: Lawyers for the Second Defendant
Bank South Pacific Ltd In-House Lawyer: Lawyers for the Third Defendant