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Dausabea v Registrar of Titles [2012] SBCA 13; CA-CAC 35 of 2011 (30 March 2012)

JUDGMENT OF THE COURT

1. This is an appeal by Ramo Dausabea against the order of Mwanesalua J of 6th October 2011 dismissing his claim for declarations:

1) that the inclusion of a parcel of land, no. 191-052-237, in a transfer of parcels of land from him to the Second Respondent, Pacific Island Timber Company ("Pacific") of the 27th July 2001, and its registration in the name of Pacific were void; and

2) that its inclusion in a transfer from Pacific to the Third Respondent, Bako Construction Limited ("Bako") of 20th May 2009 was also void; and seeking

3) an order of rectification of the register to record it as his property and an injunction against Bako restraining it from seeking to have it registered in its name.

2. The material facts giving rise to the transfers may be briefly summarised. On 7th September 2000 Mr Dausabea and Pacific agreed in writing for the sale of a block of land, already sub-divided into 12 individually numbered lots, for $143,669.38. Mr Dausabea's signature on the agreement was witnessed by John Hikimae, a Commissioner for Oaths and an official in the Lands Registry. The agreement included an ambiguous statement "The remain [sic] will be sub-divide [sic] by Walter Jones". Mr Jones is a director of Pacific.

3. There followed a purported transfer of 28th February 2001, bearing a signature claimed by Pacific to be that of Mr Dausabea, and recorded as witnessed by Joseph Pinita, then Commissioner of Lands and his subordinate there, Mr. Hikimae. Curiously, the parcels scheduled in typed form to the transfer in its original form do not conform in number or description to the lots in the agreement. There are 15 of them listed, not 12, and the individual identifying numbers are different from those in the agreement. Further, the original of the transfer has manuscript additions suggesting deletion of that list on 27th July 2001, that is, five months after the purported transfer to Pacific, and the insertion of a typed list of 13 parcels substituted on 28th September 2009, some four months after the transfer from Pacific to Bako. The substituted list has yet another series of typed parcel numbers, 12 of which Mr Dausabea appears to agree, correspond to the 12 lots, though not their identification numbers, in the agreement. But the 13th parcel, 191-052-237, a much larger one than each of the others, he does not agree was ever part of the agreement. It is significant that none of those alterations appears to have been signed or initialled by Mr Dausabea.

4. Mr Dausabea acknowledged in evidence that he had signed the agreement in the presence of Mr Hikimae, but denied having signed the transfer, maintaining that he first learned of it in mid 2001. With the leave of the Judge, he put in evidence in support of his case a somewhat ambiguous letter from Mr. Pinita stating that he had signed it as witness to Mr Dausabea's signature when it was handed to him by Mr Hikimae. He added importantly that he recalled that the transfer at that time referred to 12, not 13, parcels of land. Mr Dausabea also put in evidence a short written statement from Mr Hikimae certifying "that out of the ... 13 parcels ... that have been transferred to Walter Jones, only 12 should have given [sic] to him and that the remaining 13th parcel in the remaining parcel and [sic] should have remain [sic] with the owner Mr Ramo Dausabea".

5. Mr Walter Jones's evidence for Pacific was that they both signed the transfer on its stated date, but did not say who, if anyone else, was present as a witness at the time, nor did he attempt to explain the subsequent alterations to the transfer. He also stated that Mr Dausabea had at some stage asked to buy back the disputed parcel of land, an indication, he suggested, that Mr Dausabea had indeed signed it.

6. As Mr Pinita indicated in his letter, there may be some innocent bureaucratic explanation for some of the various amendments to the transfer, despite their apparently puzzling dates, and the appearance of 13th parcel, 191-052-237, may have something to do with the ambiguous reference in the agreement to a projected sub-division of the remainder by Mr Jones, as surmised by Mwanesalua J in paragraph of 5 of his judgment. But these important questions, including the issue as to whether either Mr Pinita or Mr Hikimae had in fact witnessed Mr Dausabea signing the transfer did not receive much attention from Mwanesalua J in his judgment. He touched on them, including Mr Dausabea's allegation of fraud, but his first and central finding was his sureness that Mr. Dausabea had signed it, because of what he considered to be the similarity of Mr Dausabea's acknowledged signature in the agreement to that appearing against the rubric, "Signed by the Transferor" in the transfer. He held that, therefore, the sale of the disputed parcel to Pacific and Pacific's sale of it eight years later to Bako were valid.

7. Mr Nelson Laurere pitched Mr Dausabea's case on the appeal as one of fraud, an unparticularised allegation pleaded and argued before the Judge, but barely touched on by the Judge in his judgment. It may be that he considered, as this Court does, that the important issue to consider is whether, on all the evidence and on a balance of probabilities, Mr Dausabea had established as a fact that he had not signed the transfer or not in its present form. Loading the determination of that issue with unparticularised allegations of fraud would have added nothing to the exercise but increased the burden of proof on Mr Dausabea to establish his case to one of high probability. Nevertheless, there is force in Mr. Laurere's complaint that the Judge did not appear to consider or give appropriate weight to the evidence pointing to the unexplained alterations of the transfer to Mr Dausabea's disadvantage after its stated execution by the parties on 27th July 2001. He was seemingly content to rely on his own assessment as an amateur handwriting expert, which however concerned only the signature on the first page of the transfer.

8. Mr Laurere, with the leave of the Court after hearing argument on both sides, put before it additional evidence on the subject of Mr Dausabea's apparent signature on the transfer, by calling Mr Hikimae. His evidence was that he signed the transfer as witness to Mr Dausabea's signature when Mr Pinita handed it to him for the purpose in Mr. Dausabea's absence, and that there was already a signature in the part printed "Signed by Transferor". He added that Mr Pinita also signed as witness at the same time, still in the absence of Mr Dausabea.

9. Mr Andrew Radclyffe, for Pacific and Bako, submitted that the Judge had considered all the issues canvassed before him at trial and was entitled to find on the evidence, as he did, that Mr Dausabea had signed the transfer. He added that it was evident, from two brief references in the judgment to the allegation of fraud, that he had considered it, but found against Mr Dausabea.

10. Mr Radclyffe's submission was that the Judge was alive to the issue of fraud, or put another way, as to Mr Dausabea's case that he had not signed the transfer and that it had been altered after its purported date to his disadvantage. But the Judge in his reasoning shows little sign of having considered or weighed the unsettling evidence before him of potentially critical and unexplained alterations to the document, none of which had been signed or initialled by Mr Dausabea, and to the written evidence from Mr Pinita and of Mr Hikimae, casting, at the very least, doubt as to whether Mr Dausabea was the true signatory, as transferor. Instead, his first finding, in paragraph 4 of his judgment was that, from his comparison of the two signatures, one in the agreement and the other in the transfer, he was sure they had been made by the same person. From that finding, he went on in paragraph 6 to dismiss any concerns that there might otherwise have been about the various later alterations, and again in paragraph 7, with the closing remark, "The Claimant signed the transfer as mentioned above".

11. In short, there is no coherent line of reasoning in the judgment to indicate that the Judge has considered in an orderly way all the considerations raised before him on the two critical questions, first, whether Mr Dausabea signed the transfer on its purported date or at all, and secondly, whether, if he did, it was then in the form in which it is now.

12. For those reasons, the Court allows the appeal, quashes all the orders of the Judge and directs that the matter should be remitted to the High Court for re-trial.

Sir Robin Auld,
President

Sir Gordon Ward, JA
Member

Justice Michael Adams, JA
Member