Anglican Church of Melanesia v Dettke [2023] SBHC 91; HCSI-CC 602 of 2021 (2 June 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Anglican Church of Melanesia v Dettke
Citation:
Date of decision:	2 June 2023
Parties:	Anglican Church of Melanesia v Host Heinz Bodo Dettke, Registrar of Titles
Date of hearing:	26 May 2023
Court file number(s):	602 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	1 The Court makes direction pursuant to section 224(2) of the Lands and Title Act. 2. An order that the claimant has acquired title by adverse possession to fixed term estate in parcel number 191-032-1 12, at Bahai area, Honiara, occupied by the claimant, its employees or agents since 2006. 3. An order for rectification by the Second defendant of the First Defendant's title in favour of the claimant. 4. An order restraining the First Defendant, his agents or associates from evicting or attempting to evict the occupants from the said property 5. Cost for the claimant to be taxed if not agreed.
Representation:	Radclyffe A for the Claimant Mona R for the First Defendant Bula C for the Defendants NA
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 224 (2), S 224 (1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 602 of 2021

BETWEEN

ANGLICAN CHURCH OF MELANESIA
Claimant

AND

HOST HEINZ BODO DETTKE
First Defendants

AND:

REGISTRAR OF TITLES
Second Defendant

Date of Hearing: 26 May 2023
Date of Judgment: 2 June 2023

Radclyffe A for the Claimant
Mona R for the First Defendant
Bula C for the Second Defendant

JUDGMENT

Kouhota PJ:

On 1 8^th October 2021, the claimant filed a category (A) claim against the defendants seeking the following reliefs;

1. l. Directions from the Court pursuant to section 224(2) of the Lands and Title Act,
2. An order that the claimant has acquired title by adverse possession to fixed term estate in parcel number 191-032-1 12, at Bahai area, Honiara, occupied by the claimant, its employees or agents since 2006.
3. An order for rectification by the Second defendant of the First Defendant's title in favour of the claimant.
4. An order restraining the First Defendant, his agents or associates from evicting or attempting to evict the occupants from the said property, 5. Such further orders as the court thinks fit
5. 6. Cost.

In 2002, Eunice Maelagi and late Mark Gara acquired title to the property in PN 191-032-112 as joint owners. In 2005, Mark Gara and Eunice Maelagi agreed to sell the property to St. Nicholas School operated under the Church of Melanesia Education Authority for $200,000.

By letter dated 24^th March 2006 to Mr Peter Iramu, Lands and Property Officer of the Church of

Melanesia, Mr Mark Gara and Eunice Maelagi signed a letter of offer to sell the property to the St Nicholas School for a price of $200.000-00. In the same letter, they mentioned that they will arrange to transfer and discharge the property when they receive the last payment from St. Nicholas school. In a report dated 27^th March 2006 to General Secretary of the Anglican Church of Melanesia, the Lands and Property officer of the church of Melanesia Mr Peter A Iramu strongly recommended to

Church of Melanesia Trust Board to purchase the land for St. Nicholas School,

Both Mark Gara and Eunice Maelagi signed the sales agreement between Mr Mark Gara and Eunice Maelagi and the Church of Melanesia Trust Board (Inc.) on 29^th March 2006. Clause 4.1 of the sales agreement states "The purchase price shall be two hundred thousand dollars (SBD 200,000 which shall be payable upon signing of this agreement by the parties (by the purchaser as follows)

(a) SBD 100,000 upon signing of this agreement by the parties, with hand written note "paid on 28^th March 2006"
(b) SBD 50,000 on 7^th April 2006 with hand written note " paid instalment as per date given"
(c) SBD $50,000 on 4^th August 2006 with hand written note " Eunice Maelagi received PMT on 20^th December 2006"

On the evidence before the court I am satisfied that the payment for the property was received by Mark Gara and Eunice Maelagi. Ml' Mark Gara died in 2015, 9 years after he and Eunice Maelagi validly sold the property to the claimant.

No transfer of the property to claimant was prepared, signed, or registered but members of the claimant or the St Nicholas school's staff have been living in the property since 2006 until 2021. That is a period of 15 years. Thus, the claimant claimed that it has acquired the title in the fixed term estate in parcel number 191-032-1 12 by peaceable, overt, and uninterrupted adverse possession for more than 12 years pursuant to section 224(1) of the Lands and Titles Act.

On 7^th September 2021, the Solicitors for the First Defendant's gave notice to the Principal of St Nicholas College for the occupants of the property to vacate the property. That was first and only time since 2006 that anyone has given notice objecting to the occupation of the property by the claimant, its employees or agents. The claimants avers that the First defendant is not in possession of the property.

No agreed facts and issues were filed for this trial but I think the issues, which the Court must decide are;

(1) Whether the court can make directions pursuant to section 224(2) of the Lands and title Act.
(2) Whether the claimant had acquire the title by averse possession to the fixed term estate in parcel umber 191-032-1 12 at Bahai centre, occupied by the claimant, its employees or agents since 2006.
(3) An order for rectification by the second defendant of the First defendant title in favour of the claimant.

It is appropriate to answer these questions by considering the second issue of the claim first. On the evidence before the Court it is not disputed that Mr Mark Gara and Eunice Maelagi had agreed to sell the property to the claimant. It is not disputed Mr Mark Gara and Eunice Maelagi singed a sales agreement with the Church of Melanesia for the sale of the property. It also not disputed that the employees of the claimant had occupied the property since it was sold to the claimant in 2006.

Mrs Eunice Maelagi in her oral evidence before the Court attempted to deny that the property was sold to the claimant .She said she did sign some documents but did not read or know what she was signing. Having observed Mrs Eunice Maelagi giving her oral evidence in court, I am afraid I do not believe her evidence. I believe she knows very well that she agree to sell the property to the claimant and she and Mark Gara signed a sale agreement with the claimant. Her own evidence shows that she was aware of the sale of the property to the claimant as shown by her letter to claimant dated 16^th October 2016, in which she raise her concern about the money for the property been paid into Mr Mark Gara's account. On the evidence before the Court I am also satisfied Mrs Eunice Maelagi knew when she sold the property to the First defendant Bodo Dettke in 2021 that she and Mark Gara had already sold the property to the Claimant and that she no longer own the property. As she no longer own the property she has no right to sell the property to the First Defendant.

Counsel for the defendant raised the issue that the claimant's employees did not always occupy the property. On the evidence before the Court, the property become vacant only for a short time when one occupants of the claimant moves out and the other wait to moves in, These are very short intervals, but the claimant or St Nicholas School has always exercise authority over the property and determine who occupies the property. I am therefore satisfied that the claimants were in possession and occupation of the property since 2006 until 2021 when they were first given notice to vacate the property.

On the evidence before the Court, I am satisfied that the claimant had acquired the title by averse possession to the fixed term estate in parcel umber 191-032-112 at Bahai centre by occupation and possession of it by the claimant employees or agents since 2006. That conclusion entitles the Court to grant all the reliefs sought by the claimant. I gave judgment for the claimant with cost to be taxed if not agreed.

ORDERS

1. l. The Court makes direction pursuant to section 224(2) of the Lands and Title Act.
2. An order that the claimant has acquired title by adverse possession to fixed term estate in parcel number 191-032-1 12, at Bahai area, Honiara, occupied by the claimant, its employees or agents since 2006.
3. An order for rectification by the Second defendant of the First Defendant's title in favour of the claimant.
4. An order restraining the First Defendant, his agents or associates from evicting or attempting to evict the occupants from the said property
5. Cost for the claimant to be taxed if not agreed.