Gaskell v Gaskell [2015] SBHC 79; HCSI-CC 252 of 2011 (29 September 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 252 of 2011

BETWEEN:

GRACE GASKELL
First Claimant

AND:

PHILIP GASKELL
Second Claimant

AND:

JUNE GASKELL
First Defendant

AND:

ZHOU GENG LONG
Second Defendant

AND:

ATTORNEY-GENERAL Third Defendant (Representing the Commissioner of Lands and Registrar of Titles)

Date of Hearing: 31st July 2015
Date of Decision: 29th September 2015.

Mr D. Marahare for Claimants 1 and 2
Mr P. Tegavota for Defendants 1 and 2
Office of the Attorney did not take active role.

DECISION ON HEARING OF PRELIMINARY ISSUES

Faukona PJ: This is an application pursuant to Rules 12.11 and 12.12 which legally pave a way for the Court to hear legal arguments on preliminary issues between the parties. The first Claimant and her late husband Jack Gaskell were joint owners of PN191-001-57 (refer to as the property). Mr Gaskell died on 29th September 1996. The first Claimant becomes the sole owner after the death of her husband.

2. The second Claimant is the son of the first Claimant from another man from Kiribati. The first Defendant is the daughter of the first Claimant and one time registered owner of the property. The property also consisted of a residence living quarter.

3. By a letter dated 28th September 2007, the first Claimant consented to transfer of the title in the property to the first Defendant. A transfer instrument to effect the formal transfer was completed on 16th August 2007 and the transfer was registered on 1st September 2009.

4. Following the decision by the Court of Appeal and striking out of Civil Case No. 22 of 2011, the first Defendant saw fit, therefore the fixed term estate in PN No. 191-001-52 was transferred to the second Defendant for a consideration of $61,000.00. The property was then registered in the name of the second Defendant on 7th February 2013.

5. The first and second Claimants are now seeking orders for rectification of the land register in respect of the property on the grounds of fraud and/or mistake.

Issues:

6. Whether or not legal interest over the said property had been conferred upon the first Claimant as one of the joint owners upon death of the deceased? If not, did the first Claimant have the legal capacity to transfer the property to the first Defendant?

7. Is the instrument of transfer dated 16th August 2007 valid and enforceable in law?

8. Whether or not the transfer and the eventual registration were marred by fraud and/ or mistake? If so, is there a basis in law for rectification of the register in respect of the property.

Issue 1 – Has legal interest of the property confer upon first Defendant and whether she has legal capacity to transfer the title:

9. This case was referred back to the High Court by the Court of Appeal. Whilst that be so, the contempt proceeding was stayed pending finalisation of ownership of the property. This issue was agreed upon by the parties as the first preliminary issue. The law related to ownership by a surviving owner after a joint owner dies is very clear and simple.

10. Section 200 (1) (b) of the Land and Titles Act expressly stated that on the death of a joint owner the interest shall vest in the surviving owner. Vestment cannot be done administratively or by presumptive effect, it has to be done according to law. Section 216 of the Act stated that upon proof of the death of a registered joint owner, the Registrar shall register the survivor as owner of the interest and become registered owner thereof.

11. The death of the first Claimant's husband as joint owner is not an issue. The legal requirement is that she had to register under her name as a sole surviving owner before the interest can be legally conferred upon her.

12. In this case, the first Claimant had never registered the interest in her name as a sole surviving owner. In that context the legal interest in the property had never transferred to her as a surviving owner. The effect of such is that there was no legal interest vested on her. Therefore her rights under section 110 of the Land and Titles Act were not recognised. Not only was that, but the name of the deceased never removed from the register. In the event she wanted to dispose, sell or transfer the title she could not able to do so. The parties do not dispute that was exactly what had happened in this case.

13. It is also agreed if S.216 of the Act was not complied with then transfer document lodged for registration cannot be properly executed. The Registrar may require parties or party or existence joint owners to comply with S.216 before transfer can be effected. This was never requested.

14. With the failure by the first Defendant to comply with, or act within the limits of law, she cannot be entitled to transfer the interest in the property to the first Defendant. Anything done thereafter is ultra vires and therefore null and void.

Transfer of land:

15. Section 172 of the Land and Titles Act provides for transfer of land. Sub-section (8) the Registrar may refuse to accept transfer unless it was accompanied by a statutory declaration sworn by both the transferor and transferee declaring the transferee is a Solomon Islander.

16. The contentious issues concern a perfected letter with the title "transferation letter" and the executed transfer documents. Whether they were done by duress, fraud or mistake upon signing and execution of those documents, and whether they are enforceable in law are questions to ponder.

17. Critical observation and study of the tone and the structure of the letter endorsed by the first Claimant transferring the estate in PN 191-001-57 to the first Defendant is necessary and relevant. The letter was dated 28th September 2007. In normal course of events that was the date the letter was written and signed. In the first paragraph, the letter seemed to read that the first Claimant had given consent for the transfer on 20th September 2007, eight days before the letter of consent was written. If that was so by what mode? Counsels refer to another letter which is not disclosed for unknown reasons. As it appears, it made reference to the consent made on 20th September 2007.

18. On the second paragraph of the letter, which comprised of one sentence; referred to the decision to consent for transfer made on the basis of unbiased or undue influence. Why would the words as unbiased and undue influence imported and used in the letter? Do they not connote some kind of dealings which purported to be free from being influenced by fishy dealings? Why should it be mention at an early stage?

19. I noted that there was a family feud in 2007 - see sworn statement of first Claimant filed on 26 February 2010. In that year the first Claimant and the first Defendant and her family moved out of the subject property and lived at Kogulae area, leaving the second Claimant occupying the property. Whilst they were living together, the first Defendant filed Civil Case No. 403 of 2008 against the second Claimant. On 28th October 2009 there was a default judgment made and ordered possession of the property be granted to the first Defendant.

20. Another anomaly is that the letter of consent to transfer the interest in the property was dated 28th September 2007. While that may be so, it would be improper by good reasoning why should the transfer instruments were completed and executed on 16th August 2007, one month and twelve days before the consent letter was signed. It would be considered procedural if the consent letter was first given before actual transfer instruments were executed. In this case it occurs in the opposite. The procedure, in my opinion, is reversing and flawed and can be seen as dubious reflecting an irregular agenda.

21. Apparently the letter of consent for transfer was signed by the Claimant amidst a situation where there was strain relationship between the families. The words unbiased and uninfluenced were used to lure confidence that the letter was signed in good faith. The timing and the purpose for the use of the words can be intimidated in a negative manner, and as well as that it was done to fulfil an irregular agenda. And the fact that it was signed later after the transfer instruments had been completed and executed affirm that the letter was used for purpose to advance the first Defendants personal interest above any other interests.

22. The argument advance by the Counsel for the first Defendant is that if the Court found the letter of consent for transfer is valid then the transfer document must be validly executed, despite non-compliance with S.216.of the land and Titles Act.

23. In the amended statement of claim filed on 22 November 2013, the first Claimant denied signing the consent letter for transfer. She claims it was done by forgery. She could not recall signing a letter explained to her as a letter of consent. She could have signed it, but stated had never agreed to have the property transferred to the first Defendant.

24. The circumstances surrounding obtaining the consent of the first Claimant to sign the consent letter appears dubious. That confirms by her claim denying of the letter. It would appear, and I accept, it was the result of the work architected by the first Defendant. If she is serious about maintaining and keeping a family unit intact she should not have transferred the title of the property to the second Defendant an Asian nationality. In doing so, deprived her mother (first Claimant) of her rights which are yet to be realised. By her actions reflected that she is in dire need or desperate for money. Whilst this case has yet to finalise by the Court, she indulged in selling the property to the second Defendant. A hastening action careless of the outcome of this case.

25. By far the evidence has revealed that the first Claimant's consent to transfer was obtained by an act of duress occasion by the first Defendant. Perceivably, the first Claimant has lost her right and deprived of her interest whilst she eagers and contemplates a formal outcome from the court which will finally put to rest the dispute.

Transfer instrument:

26. The Counsel advocates for the Defendants submits, where there is a claim for rectification of the register it has to be established that the registration was obtained, made or omitted by fraud or mistake. To ascertain whether there was any fraud or mistake done, the Court has to investigate the transfer instruments executed by the parties, and whether they were done properly out of free will.

27. The Counsel further submits if the transfer instruments were legally executed then there is no duress, fraud or mistake therefore valid and enforceable in law.

28. I noted from submissions the first Claimant was taken to the public Solicitor's Office in Honiara where she signed the instruments witnessed by one of the Public Solicitor Mr Darcy O'shea. Despite what purported to be occasioned, the first Claimant denied given independent advice as to the effect of signing the transfer instruments.

29. As an advisor from Australia faith on him cannot be questioned. He would have administered execution without any undue influence or duress. The signature identified on the instruments are similar to that of the signature on the transfer consent letter and her signatures on her sworn statements filed on 26th February 2010 and sworn statement filed on 26th February 2013.

30. It would appear that transfer instruments were properly executed. There is no evidence on the balance of probability to suggest otherwise, or to convince me think otherwise. However, the question is, has the instrument valid and enforceable in law even where section 216 was not complied with. Mr Tegavota argues that execution of the transfer is an independent issue from compliance to Section 216. Mr Marahare submits otherwise.

31. The foundation of this case premise on the agreed fact that S.216 of the land and Titles Act was never complied with by the first Claimant. At the time when the transfer instruments were executed she had never acquired any legal interest in the property. She was not registered as a sole survivor owner pursuant to S.216, the effect of such is that at the material time when the instruments were executed the name of the deceased remains persistent as joint owners in trust. As a deceased person, cannot transfer any interest in the property. His name became eternally mute that last evermore.

32. Furthermore, it was incumbent on the Registrar upon receipt of the transfer instruments; should have made enquiries as to whether S.216 had been complied with. He was well versed with the pre-existing facts and should have administered transfer instruments and registration of such transfer, proper and without question. Overally it appears the mistake here was done by the Registrar as well for failure to diligently perform his functions. His contributory negligent tantamount to mistake.

33. Noted as well, is the fact that at the material time when the transfer was executed and registered thereafter, the first Defendant had never been in possession of the property. S. 229 (2) states that land register cannot be rectified to affect the title of an owner who is in possession and acquired interest for valuable consideration. Consideration of $5,000.00 was debatable in this case; however, I take comfort of S.192 (1) that the transfer can be effected with or without consideration, so the debate is flawed.

34. In conclusion, non-compliance with S. 216 is a determinant factor and a very significant one as well. Should it be defied it conferred no legal ownership of the property upon the first Claimant. The transfer instruments may appear proper on the face of it, but non-compliance must take precedent. If no legal ownership conferred upon the first Claimant then there was nothing to transfer to the first Defendant. The first Defendant who purportedly acquired legal interest by virtue of transfer instrument was badly and negatively affected. Her ownership rights are invalid and unenforceable.

35. Similarly, by transferring the interest in the property to the second Defendant is no difference; the status is the same and subsequent registration by the second Defendant as the current registered owner was wrong, hence right to be set aside.

36. The first Defendant seems to import wrong impression that she had won the case in the Court of Appeal hence entitled her to transfer the title to the second Defendant. The Court of Appeal decision should have properly interpreted to her to act within the bounds of the decision and not to be led astray. From her actions, it is apparent, though may have ignorant of the Court of Appeal decision or was fully aware of what she did, reflected her genuine intention and motive to deprive the Claimants, in particular the first Claimant of her right of ownership. That settles the question right from the initial stage to the sale of the property. Benefit is what she hopes for disregarding whatever rights her mother possesses.

37. On the balance, I must answer the preliminary questions of law in the negative for first and second issues and affirmative on the third issue. It is proper by law the relevant register ought to be rectified in favour of the first Claimant pursuant to S.229 (1) and (2) of the Land and Titles Act.

Orders:

1. The first Defendant was incapable of transferring the title in FTE PN 191-001-57 to the second Defendant when the first Claimant executed the transfer instrument on 16th August 2007.

2. Consequent to order (1) registration of transfer in the first Defendant is not valid in law.

3. Consequent to order (2), the subsequent transfer of the title in the property from first Defendant to the second Defendant is not valid in law.

4. In consequence to order (3) the register in respect of FTE PN No. 191-001-57 be rectified to show the first Claimant as registered proprietor by survivorship and that the names of the first and second Defendants as subsequent registered owners be removed from the register.

5. Consequent to order (4), the rectification of the register in respect of FTE PN No. 191-001-57 be in favour of the first Claimant on the basis of mistake pursuant to S. 229 (1) of Land and Titles Act.

6. Cost for the Claimants against all the Defendants on standard basis.

The Court.