Gaskell v Gaskell [2012] SBCA 21; CAC 31 of 2011 (5 November 2012)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court Civil Case No. 403 of 2008 of the High Court of Solomon Islands (Faukona J)

COURT FILE NUMBER: Civil Appeal No. 31 of 2011 (On Appeal from High Court Civil Case No: 403/08)

PARTIES:

June Gaskell
Appellant

AND

Grace Gaskell
First Respondent

AND:

Philip Gaskell
Second Respondent

DATE OF HEARING: 2 November 2012

DATE OF JUDGMENT: 5 November 2012

THE COURT: Williams, JA.

Hansen, JA.

Ward, JA.

ADVOCATES:

P. Tegavota for appellant
Valenitabua for 1st and 2nd respondents

KEY WORDS: Contempt – Stay pending disputed ownership of property being resolved - rectification of Register of Titles – appropriate procedure.

EX TEMPORE/RESERVED: RESERVED

ALLOWED/DISMISSED: APPEAL ALLOWED

PAGES: 1 – 10

JUDGMENT

On 24 June 1972 Grace Gaskell and Jack Richard Gaskell, husband and wife, were registered as joint tenants in the Land Title Register of the land being parcel no. 191-001-57. Jack Gaskell died on 29 September 1996. In consequence, Grace Gaskell should have been registered as sole owner by survivorship but she never was.

It is then claimed by June Gaskell, a daughter of Grace Gaskell, that on or about 16 August 2007 her mother signed a document transferring to June Gaskell her interest in 191-001-57. That document was witnessed by Darcy O'Shea, a solicitor in the office of the Public Solicitor.

Pursuant to that document, the Registrar of Titles registered June Gaskell as sole proprietor on 22 November 2007.

In 2008 Philip Gaskell, a son of Grace Gaskell but by a different father to June Gaskell, was in possession of the house on the land in question.

By Civil Case 403 of 2008 commenced 25 November 2008 Grace Gaskell and June Gaskell sought an order for possession against Philip Gaskell. In the Statement of Case, the following was alleged:

"The first claimant is desirous of transferring the property to the second claimant and has duly completed a transfer instrument to that effect on 16th August 2007.

The transfer instrument referred to in paragraph 5 above could not be effected because the defendant has filed a caveat over the property in question on 16/2/07."

That was not a correct statement of the position as disclosed by the Register. That reveals a caveat had been lodged by Philip Gaskell on 19 February 2007, but it had been removed for some undisclosed reason. June Gaskell was registered as proprietor before the action was commenced.

Philip Gaskell did not file a defence, but he did file a sworn statement on 28 October 2009. The matter came before Cameron J. on that date. In his reasons, he said:

"By virtue of section 200 subsection 2b of the Land and Titles Act, the first claimant as the surviving joint owner became the sole owner of the property."

Then he went on to say and order:

"I grant the claimants' application for default judgment and make the following orders.

1. Possession of parcel number 191-001-57 White River, West Honiara (the property) is granted to the second claimant.
   
2. The defendant Philip Gaskell ... vacate the property by no later than 12 noon Friday 13 November 2009."
   

Philip Gaskell did not vacate as ordered and on 7 December 2009, Grace Gaskell and June Gaskell applied for an enforcement order. That was supported by an affidavit from June Gaskell. The Registrar of the High Court issued an enforcement order on 28 January 2010.

Then an affidavit was filed in 403 of 2008 by Grace Gaskell seeking a suspension of the enforcement order. In that affidavit, relevantly she alleged:

"I am the mother of the Defendant and Second Claimant in these proceedings, and I am more than 70 years old, and I cannot read or write although I can sign my name.

...

A day after the Second Claimant took me from the Defendant's home to live with them, at Kongulai.

I did not recall signing any letter explained to me as a letter of consent for transfer of PN: 191-001-57 to the Second Claimant. I may have signed the documents without the Second Claimant explaining to me the contents therein. However, I make it clear that I do not agree to the transfer of PN: 191-001-57 to the Second Claimant.

...

Sometimes in January 2010, I had a disagreement with the Second Claimant after I told the same that the Defendant is the rightful person to own the property after me, as he is the eldest son of the family. The Second Claimant became angry and swore at me. So I decided to move out of the house and went to reside with the Defendant.

It was after I moved in with the Defendant, that I became aware of these proceedings. The Second Claimant did not inform me at all about the proceedings, the whole time I lived with her. It was then that I realised that PN: 191-001-57 has already been transferred to the Second Claimant.

I verily believe that the property was transferred and registered under the name of the Second Claimant by fraud, and therefore should be rectified.

I pray that the relief sought in my application be granted, so that I can pursue an action for rectification of title registration of the property, against the Second Claimant."

Also Grace Gaskell alleges that what appears to be her signature on a letter dated 28 September 2007 consenting to the transfer of the subject property to June Gaskell is a forgery.

Those allegations by Grace Gaskell are rebutted by June Gaskell in an affidavit dated 15 April 2010.

The application by Grace Gaskell for suspension of the enforcement order then came before Cameron J. on 17 May and 26 June 2010. He dismissed the application for reasons published on 3 August 2010 in which he said:

"By a transfer dated 16 August 2007 the property was transferred by the mother Grace Gaskell (the first claimant) to the daughter June Gaskell (the second claimant). On 22 November 2007, the fixed term estate in parcel no. 191-001-57 was thus registered in the sole name of June Gaskell.

...

In 2009 June Gaskell and her mother Grace initiated these proceedings, and by a decision dated 28 October 2009 this Court ordered possession of the property be granted to June Gaskell, based on her ownership of the property.

Despite being ordered to vacate the property, Philip Gaskell did not do so.

...

In these sworn statements Grace Gaskell, now more than 70 years old, goes so far as to say that she denies signing any transfer of the property to her daughter. This is despite the fact that the transfer on its face bears a signature purporting to be hers, and a certification from a Mr. Darcy O'Shea of the Public Solicitor's Office that she signed the document of her own free will and appeared to fully understand it. Mr. O'Shea's signatures also appear on the document as a witness to the signatures of Grace Gaskell as transferor and June Gaskell as transferee. It is also despite the fact that there is a sworn statement from a Taberiki Pita that she attended the Public Solicitor's Office in August 2007 with Grace and June Gaskell and at which time the transfer was signed. She also deposes that at that time the solicitor held a private discussion of some 10 minutes with Grace Gaskell, which is consistent with her receiving advice on the nature of the transaction from him. I mention that Grace Gaskell also denies knowing anything about the claim for possession in respect of which she was named as the first claimant.

...

For reasons I have touched on I am far from convinced that there is any real case for rectification made out. Even less am I convinced that the registered owner of the property should be deprived any further from enjoying possession of the property, which right flows from her ownership of it.

I therefore dismiss the defendant's application for a suspension of the enforcement order of 28 January 2010."

It appears His Lordship overlooked the fact that Grace Gaskell had never been registered as she should have been. The comments on the claims by Grace Gaskell were limited to the application then before him. Those claims were never fully litigated before Cameron J and his comments did not amount to a final and binding determination. The Judge also erred in saying the application was by Philip Gaskell when in fact it was made by Grace Gaskell nominally one of the original claimants. That error was addressed in further reasons dated 30 August 2010, but the refusal to suspend the enforcement order stood.

June Gaskell then applied on 22 July 2011 for an order declaring Philip Gaskell to be in contempt in refusing to vacate the property and that he be punished for his contempt. That was supported by an affidavit filed that day. The application was based on a further enforcement order dated 1 February 2010.

Grace Gaskell commenced proceedings 252 of 2011 claiming that the title of fixed term estate in 191-001-57 be rectified and transferred to her name "on the basis of fraud", and that she be granted immediate possession. The defendants to that proceeding were June Gaskell and the Attorney-General representing the Commissioner of Lands and the Registrar of Titles.

In those proceedings, Grace Gaskell claims the signature on the transfer of 28 September 2007 purporting to be hers is a forgery. She denies receiving $SBD5,000 or any consideration for such transfer. She lodged an affidavit with that claim annexed in 403 of 2008 on 14 September 2011. After the contents were read to her by her solicitor she signed with her thumbprint. It will be recalled earlier she had claimed she could neither read nor write. She also lodged a caveat on the title on 25 January 2010.

Philip Gaskell filed a sworn statement dated 19 September 2011 in response to the contempt proceeding. Essentially, he relied on matters raised by Grace Gaskell who was then living with him.

The contempt application came before Faukona J. on 23 September 2011. On behalf of Philip Gaskell, it was submitted that the transfer from Grace Gaskell to June Gaskell was "void, invalid and ineffective"; Grace Gaskell was never registered as proprietor and could not transfer a title she did not have. In those circumstances, it was submitted contempt could not be proved beyond reasonable doubt.

On behalf of June Gaskell, it was submitted the order for possession stood and Philip Gaskell has refused to comply with it.

Faukona J pronounced his judgment on 5 October 2011. The following indicates his reasoning and the orders he made:

"On 28th October 2009 there was a default judgment made by this Court which ordered possession of the property in PN 191-001-57 be granted to June Gaskell based on the legal transfer and her subsequent ownership of the property.

...

Despite orders of the Court, the defendant refused to vacate possession.

...

Until Section 216 of the Act has been completed and the land is registered in the name of the survivor as transferee before the survivor can able to engage in other transactions which for time being forbidden.

...

When she executed the transfer instruments to transfer the title in the property to June Gaskell on 1st September 2009, she was in fact indulging in an activity, which was prohibited not to do. Therefore, the prerequisite agreement to transfer followed by the execution of the transfer instruments is wrong and has no effect.

...

I find the defendant's explanation for defiant of court orders as genuine and such which is supported by the applicable law. Hence, I do not think it is an action, which amount to contempt of Court.

...

1. The application for contempt refused and dismissed accordingly.
   
2. Grant order for rectification of a fixed term estate in Parcel Number 191-001-57 on the ground of mistake by having the registration in the name of Grace Gaskell is reinstated on the certificate of title pursuant to section 216 of the Land and Titles Act."
   

From that decision, June Gaskell appeals. It is clear Faukona J. had no jurisdiction to make order No. 2 on an application for contempt. Such an order could only be made after a proper hearing on that issue with all relevant parties present. The respondents did not ask for that order. That order must be set aside.

The Court is satisfied these was no breach of Rule 23 in dealing with the contempt proceedings. As a matter of strict law by remaining in possession of the property, Philip Gaskell was in contempt of the order of the Court but given the history set out above no immediate punishment was called for. Rather than dismissing the application, the Judge should have stayed the contempt proceedings until questions relating to the ownership of the property were resolved.

It is clear that there is an issue in dispute between these family members, which should be resolved quickly and finally. That could best be achieved by ensuring that in proceeding 252 of 2011 all necessary parties were before the Court and ensuring that the claim raised all relevant issues. The Court could then order the Registrar to rectify the register to show Grace Gaskell as registered proprietor by survivorship. It could then determine whether or not the transfer document of 16 August 2007 was valid and enforceable. Given the allegations already made the relief claimed by Grace Gaskell could be based not only on forgery but also on undue influence.

In the circumstances, any further proceedings for contempt against Philip Gaskell should be stayed pending finalisation of proceeding 252 of 2011. If that was not prosecuted diligently, an application could be made to lift that stay.

In the circumstances, it is sufficient for this Court to order:

(1) That the appeal be allowed;

(2) Order number 1 below is set aside and in lieu thereof it is ordered that this contempt application and any other contempt application be stayed pending finalization of civil case 252 of 2011;

(3) Order number 2 below is set aside.

There should be no order as to the costs of the appeal.

Williams, JA.

Hansen, JA.

Ward, JA.