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High Court of Solomon Islands |
HIGH COURT OF THE SOLOMON ISLANDS
Civil Case No. 282 of 1995
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BRIAN TABA'A
HYUNDAI TIMBER COMPANY LIMITLIMITED
Before: Lungole-Awich, J
Hearing: 3rd - 6th February 1997 - Judgment: 20th February, 1997
Counsel: A Nori for the Plaintiff - a for the Defendant
>JUDGMENT
AWICH, J:
The Plaintiff Brian Taba'a claims, by his writ of summons dated 12th September 1995 and amended on 1st February 1996, "damages for breach of contract", interests and costs. The plaintiff was represented by learned counsel Mr. Andrew Nori. He particularised and quantified the damages at $30, 178 The claim is against the defendant, Hyundai Timber Corporation Limited to whom the plaintiff let his premises parcel 191-019-198-888 at Skyline Ridge in Honiara in 1990. The defendant is represented by learned counsel Mr. Thomas Kama. The damages are for, (a) value of furniture belonging to the plaintiff, removed by the defendant when it vacated the premises let, (b) value of 2 units of air conditioners brought onto the premises by the defendant and removed by it on vacating and (c) value of, "Missing or Removed" furniture, part of the furniture that the plaintiff said he provided.
Basis for Claim
The plaintiff based his claim on what he says were agreed in discussions with senior employees of the defendant verbally and later partly written. His claim is therefore based on express terms. Much of the oral agreement was denied by the defendant. It admitted the written agreement dated 27th day of August 1993 and signed by the plaintiff and Mr. B.Y. Yoo for the defendant. The plaintiff's case, therefore had to depend on facts he was able to prove as having been expressly agreed upon.
In June to August 1990, the plaintiff engaged in discussions with the defendant; first, through Mr. and Mrs. Lee on site, parcel 191-019-198-888 , Honiara on which he was constructing a dwelling house, and later in the office of the defendant with Mr. Kim, the Administration Manager. Mr. Lee was the General Manager of the defendant. He and his wife wanted a house to live in. The house was to be rented by the defendant. The plaintiff said that several terms on which he would let the dwelling house were discussed. They included a three year lease period, rental of $1,800 per month, furniture, air conditioning, fencing, and enclosed laundry and store. The defendant did not deny that there has been discussions. It said that the discussions came about when the plaintiff who was in desperate need of money to complete his building, approached the defendant. The plaintiff however said that it was the defendant that approached him first. Although both parties attached much importance to which party approached the other first, in the end that was not significant in proving the material facts.
Of course discussions of several terms took place as is usual in transaction of letting and hiring. After the discussions the defendant took possession on or about 2.8.90. The plaintiff received from the defendant the sums of $3,000, $7,500 and was paid $1,200 per month out of monthly rentals of $1,800. The remainder, $600 per month was retained by the defendant. Later, the plaintiff would ask for money advances that were subsequently recovered from rentals. On 19.4.91 he received $1,480 and on 30.5.91, $2,294.85. One of the sums was used in the construction of driveway which then had gravel surface. Several smaller sums were received by the plaintiff in the latter part of 1991 and he admitted that by December 1991 advances received by him amounted to $10,874.85; he still owes $3,000 to date. He prepared an agreement, now exhibit No. PWT2 and asked the defendant to sign. The defendant did not despite the plaintiff having contacted it several times and despite it having taken possession of the premises. Later on 27 August 1993 the defendant with the plaintiff signed a different agreement now exhibit No. PWT 5 in court.
The plaintiff said that in their discussions, they agreed on a lease for 3 years, rental of $1,800 per month, he was to provide some furniture and the defendant would bring onto the premises some more furniture, the defendant would pay for the completion of enclosed laundry, adjoining store and for fencing. $1,200 of the $1,800 monthly rental would be paid to him and $600 would be retained by the defendant to recover the costs of furniture brought in; the plaintiff would retain the furniture at termination of the tenancy. Later Mr. C. S. Kim called him on telephone to ask for his permission so that the defendant would install air conditioners. He granted permission on condition that the air conditioners would remain on the house, since installation would damage the house. The plaintiff said that those oral terms should be taken together with the terms of the written agreement signed on 27.8.1993 so as to ascertain the full agreement between them.
Finding of Facts
The defendant did not call as witnesses any of its employees who took part in the discussions with the plaintiff nor Mrs. Lee who, with her husband the General Manager, occupied the premises. It called Mr. John Mae Seleau who came in only after the event, and only at the time that the plaintiff raised claims. Mr. Seleau was a very credible witness, but as he was not part of the discussions, his testimony did not advance the defendant's case very much. That left the defendant's case to depend mainly on cross-examination of the plaintiff, the only witness in support of the claim and on assessment as to the probable nature of the evidence given.
I am unable to accept the plaintiff's story that his agreement of 27.8.93 was in addition to the earlier oral one agreed over time from June 1990. There is nothing in the wording of the written agreement that suggests so. To the contrary, at paragraph 2 it provides specifically that, "… provisions of this agreement shall be effective from the 1st day of September and would cease on 30th day of August 1995 with option to renew for another 12 months". That provision leaves no doubt that the terms of the agreement were to govern future relation. Another paragraph relevant to the point is paragraph 12; it provided for 'defacing, alteration or addition to the house on the premises'. If I accept the evidence given by the plaintiff that under the oral agreement, he had to be asked for permission so that air conditioners could be built into the walls, then paragraph 12 repeated an earlier term of the oral agreement. The explanation given by the plaintiff that the other terms of the oral agreement were not written into the agreement of 27.8.97 because they were taken as already agreed upon, cannot therefore be convincing. It is my decision that the written agreement of 27.8.1993 was not part of a whole agreement whose earlier part was the oral one that governed relation between the plaintiff and the defendant from August 1990 up to the day before 27.8.1993. From the evidence, it is most likely that both parties accepted whatever oral terms were agreed and acted upon, and also accepted as not agreed whatever remained contentious until 27.8.1993.
The oral terms that one can state with comparative ease as having been agreed upon was: That the premises would be let to the defendant at monthly rental of $1,800. Records of monthly payments of $1,200 have been kept and $600 has been retained to cover advances. The plaintiff confirmed that in his testimony. Of course, the defendant took exclusive occupation. It is my view that the period agreed upon was 3 years. That is why in August 1993, ending the third year since August 1990, parties had to enter into another agreement. Another reason is that urged by Mr. Nori in submission: That the defendant must have advanced large sums of money to the plaintiff to be recovered from monthly rentals only if they knew that the tenancy would last for some long enough time to recover the large sums. It does not matter whether the advances were for furniture to be retained by the plaintiff or for completion of the house under construction.
The Law
Despite my finding that the parties agreed on a term of 3 years, I must nevertheless agree with learned counsel Mr. Kama that the tenancy that resulted was merely a periodic tenancy. The starting point in the law that regulates tenancy in non customary land in Solomon Islands is the Land and Titles Act, 1968, Cap 39 of Laws of Solomon Islands. It came into effect on 1st January 1969. It is only when the Act is silent on a point or when expressions in the Act invite consideration of interpretations given to the expressions in the English Common Law that we do invite the Common Law. Section 134 (1)(b) provides that when an owner of estate gives exclusive occupation to someone at a rent and the agreement is not in writing, a periodic tenancy is created. The provision is quoted here:
"134 - Subject to any written law governing tenancies
(a) ……………
(b) Where the owner of an estate or lease (other than the Commissioner) permits the exclusive occupation of the land comprised therein or any part thereof by any other person at a rent but without any agreement in writing that occupation shall be deemed to constitute a periodic tenancy'';
(The emphasis is mine)
This case is one such case. The defendant took exclusive occupation, at known rent, but the agreement was not in writing. That in fact was the position at Common Law. A tenant who entered into possession became a tenant at will, and if he paid rent on a yearly basis he became a tenant from year to year - a periodic tenancy - See Doe Rigge v Bell (1793) 2 S.L.C. 119 and Richardson v Gifford (1834) 1 AD & EL52. The law in England has moved further since; major changes were legislated in 1925 coming into effect in 1926. Solomon Islands introduced its own legislation in 1968 coming into effect on 1 January 1969. The periodic tenancy between the plaintiff and the defendant was a monthly one, that being the period by reference to which rent was payable - see subsection (c). In any case the oral agreement, if it was intended to be a lease, would have failed because it would be a lease for 3 years, which was more than 2 years and needed to be in the prescribed form and completed by filing and registering it as an encumbrance. Those are requirements stated in Section 135 of the Act.
The Issues
What I have said above do not provide ready answers to 4 questions that are crucial to the resolution of this case. The questions are:
1. Did the parties agree that the defendant would provide money for the plaintiff to complete construction work including fencing and that the money would not be paid back by the defendant or recovered from rentals?
2. Did the parties agree that the defendant would bring onto the premises more furniture of its choice at costs to be recovered from the plaintiff out of rentals, and the plaintiff would retain the furniture at termination of the tenancy?
3. Did the plaintiff provide some furniture at the time of letting which furniture was not returned or only partly returned at termination of the tenancy?
4. Did parties agree that if the defendant installed air conditioners in the house on the premises, the air conditioners were to become part of the house and retained by the plaintiff at termination of the tenancy?
Questions 1 and 2:
Questions 1 and 2 are related; I consider them together. The plaintiff stated that he received sums from the defendants, which sums he used for building fence around the premises and for completing enclosed laundry, adjoining store and driveway/car park That was also the position taken by the defendant. The plaintiff said that those sums were not recoverable by the defendant while the defendant said that the sums were advances recoverable.
Given the two balanced but opposing positions of the parties I think much consideration should be given to exhibits No. PWT1, said to be diary note made by the plaintiff, Nos. PWT9 and PWT10, admitted by the plaintiff as notes he wrote and signed, acknowledging receipt of the sums of $3,000 and $7,500 respectively. Exhibit PWT1 bears the date of 20 August 1990. It supports the position of the plaintiff that rentals would be deducted to pay for furniture to be brought in by the defendant. I am suspicious about it because while it is said to be a diary note, and I add, about an important event, it is not made on a printed diary sheet. Moreover, if it was made on 22 August 1990, the plaintiff would have asked a representative of the defendant to sign it that time or on a later occasion, especially when Mr. C. S. Kim of the defendant asked him on 22 October 1991 to sign a similar note, minutes of a meeting concerning rent which was part of the subject of the plaintiff's own earlier note. The signed minutes is now exhibit No PWT4 in court. On the other hand the plaintiff admitted writing and signing exhibit No PWT9 in which he categorically stated that he received $3,000, to be treated as advance payment of rent. The note reads in full:
20/6/90
I certify that I received $3,000 00 cash from Hyundai Timber Co for purchase of materials for completion (Laundry and Store room) of my house on Lot No 888 SKYLINE Ridge. The amount of $3,000 to be treated as advance payment of rent.
(Signed)
BRIAN S TABA'A
The plaintiff's explanation that he included the words, "advanced payment of rent", because he "forgot" becomes totally unconvincing. He has failed to prove that the $3,000 was unrecoverable payment made by the defendant. Exhibit PWT10 does not describe the $7,500 received for, "purchase of remaining materials ", as advance to be treated as rent. I have decided that it was recoverable by the defendant because there was evidence of recovering it which the plaintiff admits, and I reject that the deductions were for costs of furniture for these reasons: If the plaintiff agreed to forgo rent to the extent of $20,000 in payment for furniture that the defendant would bring onto the premises, an ordinary prudent person would have taken the trouble to go and inspect the furniture, take inventory and have it signed and asked for receipts of payment for them or some other proof of their costs. The furniture was to become his property. $20,000 is a lot of money, and to the plaintiff, it was nearly one-half of his initial bank loan of $45,000. In at least one aspect of this transaction he wanted the court to believe that he was a careful person, so careful as to make a diary note of a meeting. I do not believe that he went to see the furniture otherwise, the natural consequence was to take detailed inventory. The plaintiff's claim for value of furniture brought onto the premises by the defendant, and taken away by the defendant at termination of the tenancy must fail.
Question 3:
The defendant admitted that the plaintiff provided some furniture but added that those items of furniture not returned were already paid for by the defendant. During the case, the plaintiff pressed for the return or value of 3 items only namely:
1 refrigerator
5 dining table chairs
1 gas bottle of 45 kg capacityThe plaintiff has asserted that he put the three items together with others in the house at commencement of the tenancy. and that the items have not been returned. His testimony stands unopposed by another testimony or record made available. The defendant's difficulty arises from the fact that it did not call the people who physically took possession or took part in the initial discussions in 1990. It sought to disprove the plaintiff's case about the refrigerator on the ground that its employee Mr. Seleau, the only witness for defence asked the plaintiff for receipt for the purchase of the refrigerator. The receipt was not produced. On the other hand I must note that the defendant has not produced receipt for the refrigerator either, nor any other proof of ownership by itself or someone other than the plaintiff. In addition to that the court has no testimony on record in which it is positively stated that the refrigerator belongs to the defendant or someone other than the plaintiff. Weak as it may appear, the plaintiff's evidence on the point is there alone. I reluctantly decide that the refrigerator is or was more likely the plaintiff's than the defendant's. There is proof that he has not got it back when the defendant vacated the premises. I grant him judgment for the return of the refrigerator or its replacement value. The defendant admitted that the gas bottle is still in its possession and has agreed to return it. Judgment for its return or its replacement value is granted to the plaintiff The reason I have given for granting judgment in respect of the refrigerator applies for the return or value of the 5 dining table chairs claimed not to have been returned to the Plaintiff. I grant judgment for their return or for their replacement value.
Question 4:
The defendant has not called a witness to testify about the discussion during which the plaintiff said he told Mr. C. S. Kim, Administration Manager in the defendant company that if the defendant company installed air conditioners it would have to leave them in the walls as they would cause damage to the walls. On its own that assertion is not very convincing. I noted however, that immediately the defendant vacated the premises, the plaintiff wrote a letter dated 23 June 1995, exhibit No. PWT7, in which he said much about the permission he had given through Mr. Kim. The defendant did not call Mr. Kim as witness. That meant that on record only the evidence given by the plaintiff is available. That evidence is not unassailable but, it has stood alone, unassailed. I have wondered why the defendant, a large international company, did not put the request for permission in writing or obtain the permission in writing. Its witness told the court that it was the policy of the company to note down minutes of such meeting because when reporting to a senior a note had to be presented, why was it not the case on this occasion?
Could it be that the company was not pleased with the conditional permission given by the plaintiff but, went ahead in the hope that it might be able to change the condition? The plaintiff has proved his case that he was entitled to retain the two air conditioners installed on the premises, he is entitled to replacement value of them. I grant judgment for that.
Summary of Decision
Summary of the decision are:
1. The plaintiff has not proved its claim that he was entitled to retain furniture brought onto the premises by the defendant. He quantified his claim in the sum of $18,516. The claim is dismissed to that extent.
2. The plaintiff has proved part of his claim for removal and non-return of items of his own furniture. He has proved the claim in respect of, 1 refrigerator, 5 dining table chairs and 1 gas bottle of 45 kg capacity. There was no challenge to the replacement value he gave as $2,770, $650 and $205 (orally in court), respectively. Judgment is granted to him for the return of the three items or their replacement values as stated here
3. The plaintiff has proved his claim that he gave permission to the defendant to install air conditioners only if he would retain them in the walls of his house at termination of the tenancy. He has also proved that the air conditioners were removed. I grant him judgment for the return or replacement value of 2 air conditioners. The plaintiff was lacking in proving the costs of the two air conditioners or their particulars - model and capacity. I accordingly award him the lowest market prices of 2 smallest capacity air conditioners on market in Honiara. The lowest price is to be obtained by the plaintiff, served on the defendant and if there be no objection within 7 days, to be filed at court to become the sum awarded for the two air conditioners
4. Defendant has admitted still owing $3,000 of money advanced to him by the defendant. Judgment is granted against the plaintiff for the defendant for $3,000. The defendant did not state a counter claim so no costs for it is award. I have dealt with the counterclaim although the defendant did not raise it in the defence filed, because I considered that the claim of $3,000 was an inextricable part of the transaction between the parties.
5. The plaintiff has succeeded in less than one third of its claim stated to be $30,178. Costs is awarded to the defendant to the extent of two thirds.
Dated this 20th day of February 1997
At the High Court, Honiara
Sam Lungole-Awich,
Judge
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