Dettke v Anglican Church of Melanesia Trust Board Inc [2024] SBCA 7; SICOA-CAC 23 of 2023 (31 May 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Dettke v Anglican Church of Melanesia Trust Board Inc.
Citation:
Decision date:	31 May 2024
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Kouhota J)
Court File Number(s):	23 of 2023
Parties:	Heinz Horst Bodo Dettke v Anglican Church of Melanesia Trust Board Inc, Registrar of Titles
Hearing date(s):	24 May 2024
Place of delivery:
Judge(s):	Muria P Gavara-Nanu JA Lawry JA
Representation:	G Muaki for Appellant A Radclyffe for 1st Respondent C Bird for 2nd Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 224 (2), S 225, S 225 (1) (a)
Cases cited:	HDD Development Ltd v Vaike [2023] SBCA 7, Austree Enterprises Pty Ltd v Guo [2014] SBCA 19.
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-8

JUDGMENT OF THE COURT

1. The land registered as the fixed term estate for Parcel Number 191–0 32–112 [‘the property’] is located in the Baha’i area, Honiara. The First Respondent had occupied the property since 2006. In 2002 the property had been transferred to Mark Gara and Eunice Maelagi. The land register records that the application to transfer the fixed term estate to them was presented on 19 March 2002. Mark Garra died on 13 April 2015. On 13 August 2021 Eunice Maelagi, the surviving joint owner, entered into an agreement to transfer the property to the Appellant.
2. On 7 September 2021, the Appellant, through his legal representative, gave notice to the First Respondent to vacate the property within 30 days.
3. The First Respondent then brought a claim in the High Court. It firstly sought directions pursuant to section 224(2) of the Land and Titles Act. The claim was for an order that title to the property had been acquired by the First Respondent by adverse possession, and for consequent orders including rectification of title.
4. The matter proceeded to trial on 27 February 2023. The trial judge directed that the claim be heard commencing that day at 1:30 pm. In the High Court the Appellant was the First Defendant, the First Respondent was the Claimant, and the Second Respondent was the Second Defendant. The Court heard evidence then submissions from the parties. On 2 June 2023 the trial judge gave judgment for the First Respondent. The formal orders, perfected on 10 July 2023 were in the following terms:
   • “1. The court makes direction pursuant to section 224(2) of the Land and Titles Act.
   • 2. That the claimant has acquired a title by adverse possession to the fixed term estate in parcel number: 191–032–11 at Baha’i area, Honiara, occupied by the Claimant, its employees, and/or agents since 2006.
   • 3. That the Second Defendant rectify the title to the said parcel in favour of the Claimant.
   • 4. That the First Defendant his agents or associates should not evict or attempt to evict any of the Claimant’s employees and/or agents who are or may be occupying the property.
   • 5. The defendants to pay the Claimant’s costs to be assessed if not agreed.”
5. The Appellant has appealed the judgment of the trial judge on the grounds set out in the Amended Notice of Appeal as follows:
   • “1. The learned judge erred in law by failing to invoke or correctly apply section 224(2) of the Land and Titles as amended.
   • 2. The learned judge erred in law when his Lordship proceeded to determine beyond the actual issues for determination, that the property in question was already sold to the Respondent.
   • 3. The learned judge erred in law when his Lordship made the finding that Mrs Eunice Maelagi no longer owned the property, and thus she had no right to sell the same to the Appellant.
   • 4. The learned judge erred in law, by failing to apply or invoke correctly, and or appropriately the principle of adverse possession to the facts and circumstances of the instant case.”

Ground one

6. Section 224 (2) of the Land and Titles Act provides as follows:
   • “Any person claiming to have acquired an estate or lease by virtue of the provisions of subsection (1) may, after having advertised or given notice in such a manner as the High Court may direct, apply to the High court for an order that he be registered as the owner of thereof”
7. Counsel for the Appellant submitted that as the First Respondent had not advertised its intention to apply for an order for adverse possession it had not complied with what he submitted was a requirement set out in section 224 (2), prior to filing a claim for adverse possession. He submitted that instead of advertising, the First Respondent had simply applied to the Court for an order for adverse possession. He submitted that the application for adverse possession must come after what he said was the prescribed a requirement to advertise. Section 224(2), however, clearly has two alternatives for giving notice. The first is that suggested by counsel for the Appellant, namely advertising then applying for an order to be registered as the owner. The second alternative is to give notice in such a manner as the High Court may direct, then, apply to the High Court to be registered as the owner.
8. In this case, the First Respondent had sought a direction from the High Court as to the notice required. It is clear that the only persons who could be interested in the application was the Appellant and his witness Eunice Maelagi, who had purported to sell the property to the Appellant. We are satisfied that the judge did not require any further notice to be given. He has clearly turned his mind to the issue of notice by recording as the first order that he has made a direction pursuant to section 224(2) of the Land and Titles Act. His direction can be inferred that no further notice was required as he directed that the trial should proceed at 1:30pm on 27 February 2003.
8. The First Respondent complied with the requirements of section 224(2) by seeking a direction from the High Court and the High Court who directed the application to proceed. He did not require any further notice to be given. The first ground of appeal is dismissed.

Ground 2

9. The trial judge in his reasoning made findings about the evidence of the witness Eunice Maelagi. Counsel for the Appellant submitted that a document said to be an agreement for the sale and purchase of the property to the First Defendant dated 29 March 2006, was inadmissible as it had not been stamped. He referred to section 9 of the Stamp Duties Act which provides:
   • ‘9. No document executed in Solomon Islands or relating, wheresoever executed, to any property situated in Solomon Islands or to any matter or thing done or to be done in Solomon Islands, shall, except in criminal proceedings, and in civil proceedings by a Collector to recover any duty or penalty under this Act, be pleaded or given in evidence or admitted to be good, useful or available in law or equity unless it is duly stamped in accordance with the law in force at the time when it was first executed.”
10. Counsel relied on the Court of Appeal decision in Austree Enterprises Pty Ltd v Guo [2014] SBCA 19. At paragraph 30 the Court had said:
    • “In the absence of any saving provision section 9 must be given its mandatory effect. It cannot somehow be read subject at section 20 dealing with the time limit for stamping and penalties for late payments. As well, as was pointed out in Dent, it is not the duty of the court to be astute in finding ways to defeat the object of the Act of the Legislature.”
11. The Appellant’s witness Eunice Maelagi had provided a sworn statement to which was annexed an agreement for sale and purchase of the land. The witness said she did not consent to the sale or even the lease of the land and the judge commented about her inconsistent evidence. However, the claim was not about whether the property had previously been sold to the First Respondent, it was a claim in adverse possession and the judge was entitled and in fact required to set out his reasoning for the orders he made. For that reason he was entitled to refer to the evidence about the alleged sale of the property. The First Respondent did not rely on the disputed agreement at all.
12. Counsel for the Appellant submitted that the trial judge should not have accepted that the property had been sold because the document annexed to his witness’s sworn statement was not stamped. Counsel asked this Court to put to one side any evidence that the property had been sold to the First Respondent. As the document was introduced as part of the Appellant’s case and the claim was not one alleging a prior sale of the property, the reference to the sale could only be part of the reasoning process of the trial judge. For the purposes of this appeal this Court is prepared to put to one side the evidence about the alleged sale to the First Respondent. The real issue in this case is whether the First Respondent had acquired title by adverse possession. Putting the evidence of the 2006 sale of the property to the First Respondent to one side does not assist the Appellant in his argument. We are satisfied there is no merit in ground 2.

Ground 3

13. The same reasoning applies to ground 3. The determination by the trial judge required reasoning but the issue was not about whether the property had been sold to the First Defendant, it was whether the First Defendant had acquired the property by adverse possession. Ground 3 must also be dismissed.

Ground 4

14. Section 225 of the Land and Titles Act sets out the principles of adverse possession. Section 225(1)(a) provides:
    • “(1) For the purpose of section 224 –
    • (a) possession of land shall be adverse possession when it is possessed by a person, not being the owner, without the permission of the person lawfully entitled to possession and accordingly possession by a person of land comprised in a lease without the permission of the owner of the lease shall be adverse possession against that owner but not against the owner of estate or lease from whom the owner of the lease derives title”
15. While there was no issue that the First Respondent had been in possession since 2006, counsel for the Appellant challenged whether that possession was adverse. Counsel relied on the decision of this Court in HDD Development Ltd v Vaike [2023] SBCA 7. That case is able to be distinguished from the present as in Vaike there was clear evidence that the occupation was with the consent and then acquiescence of the registered owner.
16. The trial judge in the present case had before him the evidence from Eunice Maelagi who insisted that she did not consent to the sale or a lease to the First Respondent. Counsel for the Appellant submitted that consent or acquiescence could be inferred from there being an agreement for the sale and purchase of the property. Having previously asked this Court to put to one side the evidence of the sale of the property to the First Respondent it was an inconsistent submission to then ask the Court to accept it and draw inferences from it. In light of the evidence from Eunice Maelagi the trial judge was able to draw his own conclusions about whether or not the possession was adverse. This Court asked counsel to identify any other evidence on which the Appellant relied to show that the possession was not “adverse”. He could not do so.
17. The trial judge was obliged to assess the evidence of that witness. He found that she was not a credible witness for the reasons set out in his judgment. He then found that the possession had been adverse. The second order of the trial judge made his finding of fact clear: “That the claimant has acquired a title by adverse possession to the fixed term estate in parcel number: 191–032–11 at Baha’i area, Honiara”. This Court accepts the finding of fact made by the trial judge who had the benefit of seeing, hearing and being able to assess the evidence of the witnesses before him. We are satisfied that ground 4 of the appeal must fail.
18. We record that Ms Bird for the Second Respondent did not wish to be heard with the exception of advising the Court that she was participating only for rectification purposes. She confirmed that the Second Defendant would abide the decision of the Court.
19. The appeal is dismissed. The Appellant is to pay the costs of the First Respondent and the Second Respondent of and incidental to this appeal, if not agreed then to be taxed.

Muria P
Gavara-Nanu JA
Lawry JA