HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 096 of 2000

FRANCIS SAEMALA

-V-

REX FERA AND OTHERS

High Court of Solomon Islands
(LUNGOLE-AWICH, J)

Hearing: 5 May 1999
Judgment: 22 May 2000

K H Averre for the plaintiff/applicant
L Kwaiga for the first and second defendants/respondents
G Samuel third defendant/respondent

JUDGMENT

(LUNGOLE-AWICH, J): Mr Francis Joseph Saemala, the plaintiff filed a writ of summons and statement of claim on 29.3.2000 in which he claimed on behalf of his tribe, the Bosikuru tribe of Malaita Island and on his own behalf, that they together with other tribes own customary right in certain lands in and around Auki Township, Malaita Province, in particular lands he described as, "Lot 90 and Parcel 101-001-57 ("Lot 57")." He averred that the third defendant, the Commissioner of Lands, wrongfully acquired the lands and wrongfully granted a fixed term estate for 50 years over Parcel 101-001-57 to Rex Fera, the second defendant, who then had the fixed term estate registered with Richstone Real Estate Ltd, the second defendant, as the owner of the estate. The plaintiff repeated what he averred in his supporting affidavit and further deposed that the first and second defendants have brought onto the lands large amount of soil and have done large scale compacting work, they intend to construct some large commercial structure on the lands. The plaintiff asked the Court for certain declaratory relief and, the relief of damages for trespass and permanent injunction.

 As a matter of interest it appears that under the Land and Titles Act a fixed term estate granted by the Commissioner is very much akin to leasehold interest granted by persons other than the Commissioner. 

The Application for interim Injunction Order, and Interlocutory Injunction Order.

Then on 30.4.2000 the plaintiff applied ex parte for interim injunction order to restrain the first and second defendants from further work on the land while the case proceeds. On the same day I considered that the events in the case were not such that interim injunction could be granted on ex parte application. The application, even if it disclosed urgency in the desirability of having the compacting work stopped if the case for it is made, could be heard as an inter partes urgent application on short notice for non-urgent application, that could even be shorter than the normal 2 clear days notice stipulated in Order 55 rule 5 of the High Court (Civil Procedure) Rules. The first defendant is said to be a businessman doing business in Honiara and Auki, there was no suggestion that serving him with short notice would be impossible. The second defendant is a limited company, there were also no facts to suggest that service of short notice of the application on it would be impossible. Further more, there were no facts at all to suggest that service of the application on the defendants would prejudice the purpose of the application. When I directed that the defendants be served to appear in Court at short notice, indeed Mr Kwaiga, learned counsel for the first and second defendants, and Mr G Samuel, learned counsel for the Attorney General, attended Court promptly. That was an indication of the undesirability of the application being made ex parte. I have explained the requirements for making application ex parte generally and in application for interim injunction order in the yet unreported case of Andrew Kofela -v- Elisha Sanga and Stanley Beka, HC-CC 206 of 1999 .

It was a good thing that on the first occasion I insisted on the defendants being served with the application for interim injunction order, I was able because of it to make an order for interim injunction that took into account avoidable losses to the first and second defendants arising from hire of trucks and equipment to do the compacting work.

The Law about Granting Interim Injunction Order or Interlocutory Order

To obtain an interim injunction order or an interlocutory injunction order while the substantive case proceeds in Court, the plaintiff/applicant must establish that in his substantive case, he has serious triable issue. He has to present facts on affidavit that if found credible, would sustain his claim in law and he would be entitled to relief. That means he cannot come to court on baseless facts, although at the application stage, the court does not as yet engage in critical analysis of the facts. Nonetheless, in application for interlocutory injunction order, the facts must not be rendered unbelievable by affidavit filed by the defendant/respondent - see Allardyce Lumber Company Ltd and Dovele Development Company -v- Nelson Anjo SICOA 8/96, John Wesley Talasasa -v- Attorney General and Others HC-CC 43/95, American Cyanamid Company -v- Ethicon Ltd [1975] CA 139 / [1975] 1 All ER 304 and the detailed judgment dated 16.9.1999 in Nelson Lauringi and Others -v- Lagwaeano Saw Milling and Logging Ltd and Others HC-CC 131 of 1997.

Ascertaining the Facts

During the hearing of the application, it became clear to me that there was some uncertainty about the pieces of land in issue or at least there might have been double identification by lot number and parcel numbers. I directed that a survey be made of the area and a report be filed. I then called expert witness to explain the report. I allowed counsel for the parties to cross examine the witness. It is not a right of parties to cross examine Court witness, but in the circumstances I thought cross examination would be of help.

The survey report stated that the first and second defendants did compacting work on a large part of Lot 80 which since registration has become Parcel 101-001-57, and only on a very small part of Lot 90. The small area on Lot 90 compacted covered 0.008 hectare which was only ¼ of the area compacted. The expert witness explained that Lot number is a working number given by the Surveyor General when land is to be surveyed, and if the land is subsequently to be registered, it is then given a parcel number. Lot 80 was surveyed and at registration given parcel No. 101-001-57. I have ascertained that the actual allocation of the figures in parcel numbering is done in accordance with s:93 of the Land and Titles Act. 

Does the plaintiff have a case about the land area being compacted? First we have to clearly identify of the land or lands in issue. The identity of the lands about which the plaintiff has come to Court is described by him in paragraph 1 of his statement of claim and his affidavit as, "lands around Auki Township including Lot 90 and Parcel 101-001-57 ("Lot 57")." Well, Lot 57 even though he wrongly added in bracket, Lot 57. That is the current description; there is Parcel 101-001-57 which was formerly Lot 80. The plaintiff did not use the description Lot 80, he used the description Parcel 101-001-57 which is the current description of what was Lot 80. The description of the lands given by the plaintiff therefore covers Lot 80 (now Parcel 101-001-57) and Lot 90. According to the survey report, parts of both Parcel 101-00157 and Lot 90 have been compacted.

Does the claim of right of the plaintiff over Lot 90 and Parcel 101-001-57 raise serious issue, that is, an arguable case in his favour against the first and second defendants? The plaintiff has deposed that the lands were once adjudicated by the Commissioner of Lands to be customary lands, his tribe was one of the claimants then, subsequently the Magistrates' Court overturned the adjudication, but on appeal, the High Court reversed the decision of the Magistrates' Court, so that now the lands are customary lands that his tribe and other tribes own. The plaintiff claimed that while the case proceeded on appeal to the High Court, the Commissioner (by them a different one) went ahead and registered land parcel No. 101-001-57 in his name and subsequently granted fixed term estate over it to the first defendant, who had the fixed term estate registered with the second defendant as the owner of the estate. The plaintiff's claim against the first and second defendants is in trespass for which he prays for the relief of injunction and damages and certain declarations stated in his statement of claim.

Applying the Law to the Facts: Lot 90

The defendants have not claimed any right are Lot 90 and they have not included in their affidavit a denial that they have encroached on Lot 90. Their affidavits were about Lot 80 only. At common Law, a landlord whose title is not disputed is prima facie entitled to injunction restraining intruders - see Patel -v- V. H. Smith (Eziot) Ltd [1987] 2 All ER 569. That is the same as common sense. It follows that the work that the first and second defendants are to carry out on the small portion of Lot 90 is without justification. The facts deposed to by the plaintiff in respect of Lot 90 do raise serious issues in favour of the plaintiff against the first two defendants. The damage arising from the compacting work includes altering the natural features of the land, it is unlikely to be adequately redressed by money compensation; interlocutory injunction order is appropriate to temporarily restrain compacting on Lot 90, to preserve the status quo until the rights of the parties are finally determined in the substantive case. There is no current action of the Commissioner of Lands on Lot 90 so that interlocutory injunction order against the Commissioner may be considered.

Applying the Law to the Facts: Parcel 101-001-57

The facts of the plaintiff's claim in respect of Parcel No. 101-001-57 (formerly Lot 80) are the same in facts respect of Lot 90, but the statuses of the interests in the two pieces of land are different. It has not yet been disclosed whether Lot 90 is now land with registered interest over. On the other hand, there is a 50 years fixed term estate grant over Parcel 101-001-57, registered in favour of the second defendant. The reversion is of course held by the Commissioner of Lands. The nature of interest in land that has been registered under the Lands and Titles Act is that it is very strong indeed. Registration of interest in land under the Land and Titles Act confers the interest registered with statutory protection which cannot be defeated by other claims of right except if and as provided for in the Act. That statement of the law is gathered from sections 109 and 110 of the Act the relevant provisions state:

"109. Subject to the provisions of this Act -

(a)…….

(b)	the registration of a person as the owner of a fixed-term estate shall vest in that person the fixed term described in the grant thereof, together with all implied and express rights and privileges belonging or appurtenant thereto and subject to all implied and express obligations, liabilities and incidents of that estate;

(c)	…..

110.	The rights of an owner of a registered interest, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided by this Act, and shall be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject -

(a)	to the leases, charges and other encumbrances and to the conditions and restrictions (if any) affecting the interest, and shown or referred to in the land register or implied by this Act; and

(b)	to such liabilities, rights and interests as affect the same and are declared by section 114 ( which relates to overriding interests) not to require noting in the register.

Provided that nothing in this section shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee."

So for the plaintiff to present a serious enough issue for trial in respect of Parcel 101-001-57, he must present a claim which he can point out as capable under the Act of defeating the fixed term grant now registered in favour of the second defendant. Short of that, I shall be obliged to regard his claim as untenable and not raising serious issue for trial.

The plaintiff's claim now in respect of Parcel 101-001-57 is in trespass based on asserted customary right. There is no direct provision in the Lands and Titles Act that customary right defeats registered fixed term estate in the same land. That is not to be taken to mean that claim of customary right in land is not a good claim or is not sufficient to raise serious issue so as to sustain application for interim or interlocutory injunction order. It just means that the form in which the claim to customary right in the land which has already been registered has been brought to Court is not good enough to challenge the registered interest, the action in Court is therefore not tenable and does not raise serious issue for trial. There are a great many cases in which good claims of customary right over customary lands have been held to found serious issues so as to warrant granting of interim or interlocutory injunction order. In fact the majority of application of interim or interlocutory injunction order in this Court are based on customary right. A situation where there is a claim of customary right over land along side a claim based on registered interest over the same land is an anomaly. It should not occur at all because customary right over land would have existed before registered interest. The usual way to create registered interest are: (1) the owner of customary right converts his customary right by registering himself as the owner of perpetual estate or he may be a registered trustee owner, (2) the owner or owners of customary right may create a lease over the land in favour of someone who then registers the lease, (3) the Commissioner of Lands may acquire customary land for public services such as schools, hospital or for leasing out for development; in that event the Commissioner would have held public hearing to determine those who have customary right over the land or himself leased it in the first place.

In this case there may be a way out if the plaintiff's claim can be brought under s: 229 of the Land and Titles Act so as to obtain court order to first remove the registration of the fixed term estate. The High Court case, No. 378 of 199….. for rectification of the Register of Fixed Term Estates, presented as exhibit FJS8 in this case, does not help the plaintiff; it is a case between different parties and about different parcel of land, Parcel 101-001-348. Moreover, an application for leave to amend the statement of claim in this case to include rectification may well meet with the contention that the proposed amendment is a completely different claim.

The application of the plaintiff for interlocutory injunction order succeeds only partly, the order is granted only in respect of the area of 0.008 hectare on Lot 90, shown on the map attached to the survey report made by Mr Derek Taka, Assistant Surveyor at Auki, date stamped 4.5.2000. The application is dismissed in respect of Parcel 101-001-57 demarcated on the map attached to the Surveyor's report.

I have considered security for damages or undertaking as to damages that may arise to the first and second defendant because of the limited interlocutory injunction imposed. It is not necessary to order security for damages because the defendants have not claimed any right over Lot 90, they cannot say that they will suffer damages in respect of an area they have not laid claim over.

Learned counsel Mr Samuel, for the Attorney General, informed the Court that the Commissioner of Lands takes the view that the substantive case is between the plaintiff and the first and second defendants. I do not think that is a correct view; the plaintiff avers that the Commissioner wrongfully went ahead and acquired the pieces of land in issue while appeal was pending at the High Court and further wrongfully made the grant of 50 years fixed term estate in Parcel 101-001-57 when appeal pended, how can the Commissioner avoid to answer that without risking the finding of those facts against him? The Commissioner might wish to consider that in appropriate cases, not necessarily this case, an officer holding public office may be condemned to pay damages and costs personally for his wrongful action especially if the action is fraudulent or is actuated by malice.

The order the Court makes are:

1.	The application partly succeeds in respect of portion 90, interlocutory injunction order is granted restraining the first and second defendants from entering Lot 90 at all. The plaintiff applicant is not required to provide security for costs. The interlocutory injunction is to last until case No. HC-CC 96/2000 is concluded or until further order of the Court.

2.	The application is dismissed in respect of Parcel 101-001-57 (formerly lot 80).

3. Costs of this application is reserved to be dealt with at the trial of the substantive case.

Delivered this Monday 22nd day of May 2000
At the High Court
Honiara
Sam Lungole-Awich
Judge