Gaskell v Gaskell [2011] SBHC 104; HCSI-CC 403 of 2008 (5 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, J).

Civil Case No. 403 of 2008.

BETWEEN:

GRACE GASKELL
First Claimant.

AND:

JUNE GASKELL
Second Claimant.

AND:

PHILIP GASKELL
Defendant.

Date of Hearing: 23rd September 2011.
Date of Ruling: 5th October 2011.

For the Claimant: Mr. E.Teiniu.
For the Defendant: Mr. S.Valenitabua.

RULING ON APPLICATION FOR CONTEMPT.

Faukona, J: This is an application filed on 22nd July, 2011 for contempt of Court. This application is supported by the sworn statement of Ms. June Gaskell filed on 22nd July 2011.

2. In the previous proceedings Mrs Grace Gaskell was the first Claimant. In this proceeding she has withdrawn herself as first Claimant and now supported the defendant. There was no formal application but she has decided to cross the floor.

3. 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. Beside the order for possession, the Court also ordered the defendant to vacate the property by Friday 13th November 2009, and that the defendant his servants, agents, invitees, licences, dependants or others currently occupying the property be permanently restrained.

4. Despite orders of the Court the defendant refused to vacate possession. As a result, the second Claimant filed an application seeking enforcement orders on 7th December 2009. On 28th January 2010 the enforcement orders were issued by this Court authorizing the Sheriff of the High Court to enter the property and deliver vacant possession of the same. The Sheriff subsequently issued an advice of eviction on 1st February 2010. On 28th January 2010 an application to suspend the enforcement orders were filed. On 3rd August 2010 the Court refused to grant the application.

5. On 19th August 2010 a further application for an order to suspend the notice of eviction was filed by Grace Gaskell, who by then was with the defendant. On 30th of August 2010 the Court refused to grant the application. Despite the Court orders the Defendant still refused to vacate possession to the Sheriff and the Sheriff is yet to deliver the property to the second claimant.

6. Due to continuous refusal by the defendant to comply with the Court orders, the second claimant then filed an application for renewal of the enforcement orders on 28th January 2010, which the Court eventually granted on 10th August 2011. Consequently this application was filed on 22nd July 2011 for contempt of Court.

7. An application for contempt is provided for under Rules 23.8 to 23.13. Any person alleged to have deliberately or repeatedly fails to comply with an order, by Rule 23.12 (b) is allowed to make an explanation. The Defendant has come to Court with that explanation supported by two sworn statements, those of defendant himself filed on 19.9.11 and the sworn statement of Grace Gaskell filed on 19th September 2011.

8. The standard of prove in a civil contempt is a well settled law in this jurisdiction. In Tuhara v James[1] Kabui J stated at page 2;

"This case concern civil contempt. As such it is quasi-criminal in nature. In Comet Products v Hawkex Plastics (1972) 2 WLR 361 at 364-365, Lord Denning, MR had this to say. "A criminal contempt is one which takes place in the face of the Court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the Court in a civil action. Although this is a civil contempt, it takes of the nature or a criminal charge. The Defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Cross J in Yianni v Yiani (1996) 1 WLR 120 so decided; and a furthermore we ourselves in this Court. In re Bramblevale Ltd (1970) 1 Ch. 128, 137, said that it must be proved with the same degree of satisfaction as in a criminal charge." This passage by Lord Denning covers all the elements in a criminal charge".

9. The same view is expressed in Russell Islands Plantation Ltd v Kangovai[2] by Brown J at page 18 stated;

"The White Book speaks thus about 0;52 r.l (in similar terms to our High Court Rules 0.62 Division 3 as it was then at 52/1/3; It is an essential prerequisite to a finding of contempt that the factual basis shall be proved beyond all reasonable doubt and that there shall have been mens rea on the part of the alleged contemnor (Re Supply of Ready Mixed Concrete (1991) 3 WLR 708. C.A)".

10. From the authorities there can be no question that the standard of prove in civil contempt correspond to the criminal standard of prove and that is prove beyond all reasonable doubt. I am without reservation legally persuaded and obligated to apply that standard in this particular case.

11. In explaining the defendant's position for noncompliance Mr. Velenitabua relies on the defendant and Ms Grace Gaskell sworn statements. Mr Valenitabua also refers to various sections of the Land and Titles Act which form the basis of the defendant's explanation. The tone of Mr Valenitabua's explanation rather perceived as corresponds to an argument in a substantive claim. I am not dealing with the substantive issue now but I will take the explanation as it comes. The issue of fraud has been ruled out. This time the issue of mistake is raised; notably a right minded person would reasonably suggest the whole entire case is revived which this Court had already decided. Nevertheless, the Rules have provided for such explanation, but does not confine to any limitation and volume. Retrospectively, in fairness, the sworn statements which the defendant relies on have been duly served upon the claimant's Counsel for his perusal and reply. In court the Counsel for the Claimant has not touched on the issue of mistake.

12. In Court Mr. Valenitabua submits that the orders made by this Court on previous occasion were based on mistake (see paragraph 4.2.2) in his submissions. Apparently, the content of the submissions, presupposes that the defendant has never been satisfied with the decision and orders of the Court. Even so that has not prompted any application to set aside the original default judgment or an appeal to the Court of Appeal. This application is a privilege for the defendant to raise another challenge base on a new issue of mistake.

13. The defendant's argument base on the fact that upon the death of Mr Gaskell section 200(2)(b) of the Land and Titles Act come into play. And that upon proof of death the survivor Grace Gaskell the wife of the deceased be registered as an owner of the interest after the transfer instruments has been executed, section 216 of the Act. The defendant further argues because Mrs Grace Gaskell was not registered as demanded by Section 216 of the Act, her purported sale and transfer of title in PN 191-001-57 to June Gaskell therefore is not valid and unenforceable.

14. On 21st August 1972 the above parcel of land (the property) was registered in the name of Jack Richard Gaskell and Grace Gaskell as joint owners. On 29th September 1996 Jack Gaskell died. Upon that occasion, and by virtue of section 200(2) (b) of the Act, the interest in the property was vested upon Grace as a surviving owner through the principle of right of survivorship. Halsbury's laws Volumes quoted below states that, "if there are two joint tenants, the survivor possess the whole and become sole owner of the property". Whilst being vested with Mr Jack Gaskell's interest Grace did not register as the owner of the interest so that she would be recognised as transferee and a registered owner as required by section 216 of the Act.

15. It was at this stage that the transfer instrument was executed by Grace Gaskell and the title in the property was transferred to June Gaskell as of 1st September 2009. Mr Valenitabua affirms in his argument that Grace Gaskell was never registered as owner of the property upon the death of Jack Gaskell. He further argues that Exhibit PG1 attached to the defendant's sworn statement did not show ownership by Grace Gaskell as Jack's surviving joint owner. On that basis Section 216 of the Act was not complied with.

16. The view taken by Mr Valenitabua is rather his perception of the mind of the legislators. I feel, to appreciate what the legislators meant in the Land and Titles Act, and to conclude on the true interpretation of the law, it is worthwhile to reflect back to the origins of our laws, in particular related to this issue. I have several quotes from relevant authorities hereunder.

17. In Halsbury's laws volume 35 paragraph 1244 it states;

"A joint ownership or joint tenancy is distinguished by four unities of possession, interest, title and time of commencement. The right of survivorship attach to a joint tenancy of personality including choses in possession and in action, as well as to realty until severance"

On the foot note, page 754, paragraph 2 it says, "on the death of one joint tenant his interest passes to the other joint tenant; and when only one tenant survives, he becomes sole owner of the property".

18. Again in Halsbury's law volume 39 (2), page 143, paragraph 195, says;

"The death of one joint tenant creates no vacancy in seisin or possession. His interest is extinguished. (Referring to the deceased). If there were only two joint tenants, the survivor is now seised or possessed the whole".

19. In a book "Introduction to property law", 2nd Edition by G. Teh or B. Dwyer on page 129, paragraph 1106, says,

"The most important implication of a joint tenancy is the right of survivorship, also known as jus accrescendi. When one joint tenant dies his interest in the joint tenancy is extinguished, his death operating to swell up the claim of the living joint tenant. In this way, the last surviving of several joint tenants ends up becoming the sole owner of the entire property. This is itself a consequence of the technical rule that each living joint tenant is regarded as seised of the entire estate".

20. Undoubtedly paragraphs 16-18 above are a reflection of English and Australia law which recognizes the right of survivorship and eventual sole ownership of the property. However, in my respectful view, those quotations uphold a corresponding situation after registration has been done as required in Section 216 of the Act. There is no mention of the right of survivor and what ought to be done, should he wish to dispose before registration.

21. I find Section 215 (1) of the land and Titles Act is more appropriately applies to a circumstance after the death of one of joint owner, and before registration of the last surviving owner. It transposes certain actions a person beneficially entitled on the death of the deceased owner can do. And that presupposes to be the exposition of the law in Solomon Islands which operates on the death of a joint owner. The section states;

"Subject to any restriction on his power of disposing of the interest contained in his appointment, the personal representative or the person beneficially entitled on the death of the deceased owner of a registered interest, as the case may be, shall hold the interest subject to any liabilities, rights or interests which are unregistered but are nevertheless enforceable and subject to which the deceased owner held the same, but for the purpose of any disposition he shall be deemed to have been registered as owner thereof with all the rights conferred by this Act on an owner who has acquired an interest for valuable consideration"

22. The important part of the section is the last bit of it. To appreciate what the section says, it is appropriate to define the word disposition. Section 2 of the Act define the word to mean,

"an act inter vivos (action between two living beings) by an owner whereby his rights in or over the land comprised in his interest are affected, but does not include an agreement to transfer, lease or charge."

23. The definition of disposition clearly confines the actions allowed by the right of survivorship to perform or undertake. However a survivor can engage, for instance, in a process of gift or trust, but not agreement to transfer, lease or charge. 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. In this case there is evidence that Grace Gaskell has never been registered as sole owner of the property in order to fulfil Section 216 of the Act.

24. There is no dispute Mrs Grace Gaskell is the person beneficially entitled on the death of Jack Gaskell, the joint owner of the registered interest. Section 200 (2) (b) of the Act makes it quite clear, that upon Jack's death the interest was vested upon Grace the surviving owner. For the purposes of any disposition Mrs Grace Gaskell has the right by Section 215 (1) to do so before any registration as required by Section 216 is done; because she is regarded as being deemed to have been registered as owner thereof, with all the rights conferred by this Act, but limited to acts which do not include agreement to transfer, lease or charge.

25. 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. Apparently she acted quite prematurely. Unfortunately I cannot blame the Registrar for his wrong doing because although he is the custodian of the Land and Titles Act, he does not know the law. Therefore the prerequisite agreement to transfer followed by the execution of the transfer instruments is wrong and has no effect. What has been done is regrettably done perhaps by misunderstanding of the law, or a total ignorance of the law. In any event that cannot prevail. The oversight has substantially affected this case.

26. Mrs Grace Gaskell could have engaged a better and a smart Solicitor for advice initially, before she could ever think of transferring the property to June Gaskell. The law has defined the action taken by Mrs Grace Gaskell as wrong and an oversight, and perceived as a mistake, which she could not have been well versed with, or substantially involved in it. It was a mistake by the Registrar for being unfamiliar or ignorant of the law. Therefore merits a situation where rectification of the register is necessary.

27. I therefore accepted the explanation by the defendant in reply to the application for contempt of court. Though in the nature, is regarded as raising a new issue. The importance is what has been done must be within the bounds of law, if not, must fail on the face of it.

28. 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, and I find beyond all reasonable doubt he is not guilty of that. It is an unfortunate situation that such dispute has to drag same members of the family into Court, and perhaps fill with anxiety, hate and resentment. The problem here is lack of proper legal advice right from the beginning.

Orders.

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.

3. Cost in the cause.

The Court.

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^[1] [1998] SBHC 94; HCSI-CC 356 of 1996.
^[2] [2005) SBHC 7; HCSI-CC 197 of 2005.