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Chago v Success Co Ltd [2023] SBHC 63; HCSI-CC 366 of 2019 (3 August 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 366 of 2019

BETWEEN

MARIO CHAGO AND ANDREW TURA
1^st Claimants

AND:

KOMORIANDI RESOURCES LIMITED
2^nd Claimants

AND:

SUCCESS COMPANY LIMITED
1^st Defendants

AND:

SOLOMON RESOURCES MANAGEMENT
2^nd Defendant

Date f Hearing: 30 January 2023
Date of Ruling: 3 August 2023

Mr. R. Kingmele for the 1^st and 2^nd Claimants
Mr. G. Suri for the 1^st and 2^nd Defendants

RULING ON APPLICATION FOR DETERMINATION ON A POINT OF LAW

Faukona (DCJ): This is an amended application filed by the Defendants on 18^th December 2020, to determine preliminary issues of law pursuant to r12. 11 and r12.12 of the Solomon Islands, Courts, Civil Procedure Rules 2007.

2. Rule 12.11 empowers the Court to hear arguments from the parties of preliminary issues of fact and law.
3. The main thrust behind the rules is that, if it appears likely the issues will be resolve without trial including costs, or that the issues will reduce substantially, then it is vitally important to entertain such application.
4. I do not find in reading the rule that its existence is purposely to provide short cut or dismissal of a claim. Only in in the clearest term. It is all about resolution of the issues.

It may appear, according to my perception, that one issue which cannot be resolved at this stage, a trial is required of that issue. For more will render a trail more purposeful and perhaps costs will be reduced.

5. Even in the circumstances where majority of issues are resolved, it does not mean the claim should be dismissed. Only where all the issues are resolved at this stage then a trial can be avoided.
6. This also applies to issues which are partly resolved. The remainders will likewise call for a trial.

First Legal issue.

7. The first issue asks whether Penrose Palme (Acquisition office), was lawfully authorized to acquire 18,840 hectares in liu of 12,900 hectares of land as specified in the agreement for lease dated 15^th February 1993; and what is the legal effect of the registration of 18,840 hectares.
8. The Komirindi hydro power project was a government initiative project to supply cheap and clean electricity power to residences of Honiara and those living on the outskirts.
9. In carrying out the policy plan, the Commissioner of Lands, as the most significant player, expressed the wish of the people to acquire part of Komirindi customary land for the project.
10. The customary land mass to be acquired was 12,900 hectares for the purpose of the hydro power project. That was the original mass of land eyeing.
11. To carry out the initial ground work the Commissioner of Lands appointed the Acquisition Officer, Mr. Penros Palmer on 6^th October 1992, as his representative, (see. S. 61(1) of Land and Titles Act).
12. After fulfilling the pre-requisite requirements under Part V, Division I of the Land and Titles Act, Mr. Palmer eventually conducted the first public hearing from 9^th -15^th February 1993. A report to that effect was filed.
13. In his determination Mr. Palmer affirmed that Mr. Siriako Usa, Mr. Francis Orodani, Mr. Sethual Kelly, Mr. Mario Chago and Mr. Andrew Tura were identified as persons representing their tribes Laukuli and Kakau land holding groups who were entitled to sign the agreement.
14. The size of the land as agreed upon to lease was 12,900 hectares. On that occasion the Acquisition Officer also explained that the right area will be confirmed after the survey is done. That means the right area will be finalized later after the survey.
15. The agreement stated the land was to be used for purpose of the Project.
16. The second agreement was endorsed on 5^th March 1996. It maintained previous terms and conditions expressed in 1993 agreement with variations, by payment of lease premium of 8 million dollars, including pre-payment of 250 thousand dollars paid in 1995. Payment of instalment of the sum of 5 million dollars, the Claimants and trustees not to harvest the timbers on the land area, and payment of balance of premium, compensation for resources including harvesting of timbers is subject to further negotiation.
17. That the trustees were not to enter into any agreement with any person to extract timber within the land area.
18. That the timber resources attached growing on the land shall become the property of the Commissioner of lands.
19. The agreement be registered and formalized as a normal lease under section 133 of Land and Titles Act.
20. The agreement was endorsed by Mr. Palmer and trustees.

2017 agreement, 3rd agreement

21. The argument advance by the Defendants are that there was no land acquisition conducted in 2017 and the vesting order filed with the Registrar of Title refers to the land acquisition in 1993.
22. As a result, the consequence of non-compliance with the law is serious. Mr. Palmer who executed the 2017 agreement after he had made his determination and completed this duties.
23. I noted what is outlined above are what is shown on materials available on the file. When one looks casuals on the records, the relevant question to pause what had happened from 1996 to 2017, a period of eleven years. We can accept the variation agreement in its face value. But is that all?
24. In fact the increase of land size in 2017 is in dwindle. The Defendants are saying that was done unlawfully hence disputed,. However, the Claimant’s version is, that was what had been agreed upon. Therefore it is an issue in dispute, requiring evidence to affirm whether the agreement was endorsed by the parties.
25. However it is understood the reason why Mr. Suri questions how would be that three agreements endorsed would implement one acquisition process. Let us look at the events from the void age.
26. On page 4, paragraph 1 of Mr. Palmers report after the public hearing in 1993, it stated, “I also further explain that the area will be confirmed after the survey is done”.
27. What did Mr. Palmer mean that the land area will be confirmed later after the survey was done? Did he mean the sketch plan annexed and marked as K1 – see page 3 paragraph 2 of the report, was only an estimate or a draft without proper measurement? In any event I accept the words, “draft estimate”.
28. A draft estimate size is only available for work purposes. The real measurement will come later after the survey was done and the surveyed plan and final area would include in the land acquired and in the formal lease.
29. On pages 34, 35, 56 and 109 of Natasha Rita sworn statement filed on 24^th October 2019 showed maps of the 12,900 hectares of land. Maps on page 35 and 56 shows drafts drawn by hard. The map on page 8 attached to the same sworn statement is perhaps a map containing the same land mass but appears as been drawn on scale. Map on page 56 is attached to Form CL. 2 agreement for lease. For sure those maps must contain the wish of the Commissioner of Lands.
30. When one looks at map 109 for clear drawing, it implicates the power station was located outside of 12,900 hectares of land. The intake heard works occupies a large portion outside of 12,900 hectares, part of the access road would likely be outside as well.
31. A further thorough study of the maps, reflect there was an increase of land mass that runs on the outskirt of 12,900 hectares on the northern part from intake head works to the tunnel to the power station and further. That increase is to cater for access road, power station, intake hard works, tunnel and others, I suppose. Apparently, the extension of the size is not disputed by the Defendants.
32. In comparison, map annexure “PL6” attached to the joint sworn statement of Timothy Papangu and Savino Laugana shows that the area in dispute which the Claimants sue the Defendants for is part of ravuneha land marked as red crosshatched on the above annexure. That portion is indicated in the map. Part of it is within the registered land.
33. The Claimants have disputed that ravuneha customary land is wholly located outside of the registered land. Apparently that dispute becomes an issue. It requires evidence from the witness to verify the boundary. In fact it is definitely a customary land dispute an issue which should be resolved through other land dispute forums.
34. In the 1993 agreement for lease, one of the conditions is specified in 4(9) which states, the terms and condition of the lease will be in a form of contract made and agreed upon between the government and the landowners.
35. This means agreement must be resulted out of discussions or negotiations. An agreement cannot be read in isolation from discussions or negotiations between government and landowners.
36. A lease of customary land acquired under Part 5 Division 1 is to be determined among others as to the size of the land.
37. In this case the size is originally 12,900 hectares. The value report sets premium as 8 million and rental to be $25,000.00 for 75 years term. These terms seems to be agreed upon including other terms and conditions expressed in 1993.
38. This consensus can be verified by the disgruntled trustees when the Government failed to honor its obligation. As a consequent a letter written by Mr Firigeni to the Ministry of Housing on 31^st March 2015, on behalf of the trustees. The letter concerned failure by the Government to up to date on payment of premium for 1997 and 1998, rentals and compensation.
39. Those figures do not hatch out of nothing, but through agreement the trustees had with the Commissioner of Lands.
40. Paragraph 1 (a) of the letter stated the failure was by Government in not securing the formal lease of the customary land.
41. If formal lease was not secured for the past 10 years then the question to pause is, when would a formal lease agreement be made or is discussion still continuing? One can note, that as the project continues to drag on the Government had forbade interest and diverse attention to Tina Hydro.
42. Also including the standing of the parties from 1996 to 2017. Why it took so long to formalize the registration. This is a question of fact which the surviving trustees and the Government ought to verify in Court by way of evidence.
43. Another aspect in this case is to consider and analyse paragraph (e) of the terms and conditions of the 1996 agreement.
44. The term specifically mention that the agreement (1996) shall be registered and formalized as a normal lease agreement pursuant to Sections 133 and 135 as soon as the formal survey plan of the catchment area is competed. Had the Surveyor General done his part and the catchment area is given a LR Number, Lot Number and a Parcel Number. Yes it was done later.
45. This particular term emphasizes the lease agreement will be registered when the formal survey plan was done. It means agreement to the size of the land must be finalized. For obvious reasons the registration of the agreement depend on the final size of the land after survey.
46. Two important aspect can be identified from the contemplation. One, in case the size of land increased that would determine the final figures expected to appear in the agreement before formalization and registration.
47. If the size of the land is increased then the parties could possibly consult and negotiate whether the trustee would agree to or not. At the same time it will affect the figures which had been computated.
48. To arrive at the finality verification must be done as a need for affirmation by evidence.
49. On 26^th September 2017, a survey initiation form was endorsed by trusties Siriako Usa and Francis Orodani.
50. However, there was information that on the first half of 2017 the Surveyor-General, had instructed the Commissioner, to complete the formal survey of komirindi land which showed a area of 18,840 hectares with a Lot description of LR1149 (Survey plan) see map annexure “PL3” attached to the joint sworn statement of Papagu and Laugana. That map or plan has an imprint in the middle of it as LR 1149, and figure 18,840. This affirms the figure in paragraph 2 (1) which is 18,840 hectares. These informations can be cited in the Agreement for lease of customary land, 2017.
51. So indeed there was a formal survey done and a new agreement was signed by the surviving trustees and the Acquisition Officer.
52. The 2017 survey was originally anticipated in acquisition process of 1993 and 1996. That is to identify correct boundaries of komirindi land and ascertain correct area of 18,840 hectares.
53. Despite it was done the Defendant still label it as non-compliance with law and it is serious. Serious in the sense that it was an attempt to replace the 1993 agreement and without convening a fresh acquisition, agreement was not published and that the Acquisition Officer had completed his duties and nothing left to decide.
54. The Defendants further state that the increase of the size of land to 18,840 had swallowed land belong kakau-poha clan which were not authorized to acquire in 1993. Therefore, Mr. Palmer has not lawfully authorized to acquire 19,840 hectares in 2017. Therefore, the registration of 18,840 hectares was null and void.
55. Apparently it appears, the whole acquisition process up to 2017 agreement including interpretation of the agreements, the lapse of time and the increase size of the land are in issue.
56. In this instance evidence is needed to verify facts which are currently in issue. Those issues must be adjudicated in trial so that evidence be called. This issue cannot be resolved at this stage.

Second Legal Issue.

57. The second issue whether it was mandatory, under S.69 (b) (ii) of the act, for the Commissioner to state on the Vesting Order dated 8^th November 2017, requiring the persons who were determined as lessors, including the Claimants, to execute a lease in favour of the Commissioner to make registration of the initial holders of PE in 703-03-001 lawful?
58. It is not in issue that the vesting order did not require the trustees identified to execute a lease of Komirindi land. Is it the Commissioner of lands intention to omit the trustees not to execute the lease? In fact there was no lease executed at all. The Commissioner had not prepared it, what are his reasons? Did he deliberately ignored or did he not know? Those are questions to be answered at the right time.
59. I noted the case of SMM Solomon Limited and Ors V Axiom KB Limited and Ors^[1] and its strict application where the Court of Appeal said;
    • The vesting order the commissioner of Lands Signed relates to the agreement signed by the Acquisition Officer on 30^th October 1992...
60. There is no mention of the mandatory lease with the Commissioner of Lands or of the requirement that he transfer the lease to the first respondent.
    • “...If the vesting order he made was in the appropriate form for a lease and subsection (1) (b) (i) as was necessary to vest the perpetual estate in the land to the respondents. By subsection (1) (b) (ii) (iii) and (iv) he must also require the persons in whom the PE estate is vested to execute a lease in favor of the Commissioner of Lands who must then pay the lessors and premium or rent in terms of the agreement to leas and take possession of the land. There is no evidence any of the provisions (ii), (iii) and (iv) were performed. Until they were the land remain customary land and could not be and should not have purportedly been registered”.
61. However, if one requirement is to complete, will it render the registration invalid as in the case above? Can execution of the lease; payment of rent, taking possession of the land, take place after the registration? If that can be and the acquisition process leading to the vesting order is not disputed, otherwise valid? Can rectification under S.229 be a resolution because of subsequent failures by the Commissioner to complete the implementation process?
62. Those issue require proper analysis of statutory provisions. In this case the entire acquisition proceedings are in issue, and those issues are complicated and they concern proper construction of the law.
63. For instance s.68 of L& Titles Act provides how unfamiliar circumstances to partly implement the agreement signed under S. 62 (b). Where the Court decide other Claimant has establish a claim that will not affect the rights of vendors or lessors named in the agreement to sell or lease any part of the land. The implementation will extend to which a claim so established.
64. Secondly where the Commissioner rescind the agreement he may enter fresh agreement relating to the same land or part thereof with those identify by the Acquisition Officer as having right to sell or lease the land, and the terms of fresh agreement may be implemented without further notice, inquiry or hearing.
65. The crux of the S.68 (1) (b) is that though the agreement be rescinded the Commissioner may enter fresh agreement with original trustees without further notice, inquiry or hearing.
66. The situation in S.68 (1) (b) can be corresponding match with S.69 (b) (i) – (iv) and question whether they can be implemented after the registration was done.
67. As I mention in paragraph (63) above, there may be other provisions more has link to this process. They need interpretation and proper construction. And that can only be provided by Counsels at trial. Mean time I must dismiss this issue of law.

Third legal Issue.

68. Whether lack of a lease executed in favour of the Commissioner of lands means the land acquisition and registration process was not completed so the land remain customary land?
69. I noted the Defendants’ reliance on the same Axiom case. It stated,
    • “.. By subsection (1) (b) (ii) (iii) and (iv) he must also require the persons in whom the perpetual estate to execute a lease in favour of the Commissioner of Lands who must then pay the lessors any premium or rent in terms of the agreement to lease and take possession of the land. Until they were, the land remain customary land and could not be, and should not have purportedly been, registered”.
70. My approach to this issue will be the same as issue (2) above. In fact they are inter related and come under one provision with two different subjects. In any case my narratives in terms of reasons expressed in issue (2) applies to this issue. Therefore I must dismiss this point of law, it can’t resolve at this stage.

Fourth Legal Issue.

71. Whether it was mandatory for the persons registered as the initial holders of the PE to lodge a statutory declaration pursuant to S.195 (3) of land and Title Act to make the registration lawful?
72. The Defendants rely on S.195 (3) of the Land and Titles Act. The section advocates two significant requirements, one, it prohibits registration of land by more than one Solomon Islander as joint owner unless they produce statutory declaration to the Registrar by each of them, setting names of the group, the interest of the beneficiaries.
73. Secondly with similar actions the joint owners must declare the beneficiaries interest have been consulted and those in favour of the disposition of the interest are entitle to major portion of the beneficial interest.
74. Provided the Registrar may disperse with such statutory declaration on the ground he is satisfied on evidence that the joint owners alone are beneficiary interested.
75. The Defendants argue that whilst statutory declaration is not required in the case of lease made in favour of the Commissioner, persons holding PE must still make statutory declaration in respect of the PE for the benefit of the land holding group.
76. Further argument that since it is the first registration after land acquisition, it is an act inter vivos, hence s.195 (3) applies. So statutory declaration should be produced with registrar of Titles.
77. The Claimants affirm that on 8^th November 2017, the Commissioner applied to the Registrar for the first registration of the PE in the names of Usa and Orodani for the whole of komirindi land and not part.
78. As a result, on 4^th December 2017, a registry map was prepared with other required documentations and declarations having been completed, the Registrar registered the whole of komirindi land with effect from 8^th November 2017. Such registration include registration of Claimants, Usa and Orodani as joint owners of the PE of the whole of komirindi land.
79. Verily, this issue has no complicated answer. The declarations had been complicated. But if the parties wish dispute they may do so at trial resolve when evidence be called and the Commissioner clarified what he did and the submissions he made to the Registrar. At trial as well, all copies of documentations will be verified if the Commissioner had done his part at all. Therefore I must dismiss this issue accordingly.

Fifth Legal Issue.

80. Whether the Vesting Order was valid for the Registrar to rely upon for compilation of PE registers for PN: 203-003-001 pursuant to S.70 of L&T Act.
81. The provision states that the Registrar only compiles the PE registers upon receiving of vesting order and after preparation of the registry map.
82. The Defendants argue there was no lawful vesting order for the Registrar to act upon.
83. As I have reiterated that the above adjudication process conducted by the AO from 1993 agreement, 1996 agreement, Deed in 1915 and virtually vesting order in 1917.
84. The whole process is under dispute by the parties. It cannot be resolved without a trial.
85. If on 4^th December 2017, a registry map had been prepared and completed and other required documentations and declarations; the Registrar registered the whole of komirindi land. At trial copy of those documentations declarations and anymore be available by way of evidence to scrutinize. That will verify whether the Commissioner had done what was required of him by law. Meantime I must dismiss this legal issue.

Sixth Legal Issue.

86. The issue is whether the 1993 agreement (Form CL. 2) was capable of being performed after one year?
87. The Defendants rely on S. 69 (3) L&T Act which sites that the Commissioner or the vendors or lessors may within one year from the date appeal period expired, or date of court order, instituted proceedings for specific performance of the agreement.
88. The High Court had made its decision on 20^th September 1994. If S.69 (3) had been complied with then implementation of 1993 agreement should be completed by 20^th September 1995.
89. Six months after the expiry date the formal agreement was endorsed by the parties on 5^th March 1996 which scheduled out payments.
90. However, as the Defendants submit that the 2017 agreement was carried out contrary to law by increasing the size of land, new notices were produced without fresh acquisition, vesting order relied on 1993 agreement. The vesting order did not require lease in favour of Commissioner and no statutory declaration from PE holders.
91. At first I note 1996 agreement was made 6 months late, no legal action was taken to rescind the agreement on abandoned if there ought to be strict compliance to S. 69 (3), seems nobody bothers because parties were willing to implement despite out of period.
92. Both Counsels in this case agree to the decision of SMM Solomon Limited and Ors V Axiom Limited and Ors^[2], that whether or not the agreement itself has lapsed or been abandoned, will depend on the facts of the particular case including any activity by the parties or other interested persons to implement or use any other aspect of the acquisition process. We note there is evidence in the present case of steps have been taken by some of the land owners to activate the process as a whole.
93. The Claimants major argument in this issue is that the pleadings show the parties to the agreement continue to treat the agreement as being on foot and acted according upon to the time of registration.
94. Because of the intention by the parties to continue though 6 months late in implementing the 1993 agreement nothing was done to it.
95. From 1996 to 2017, is eleven (11) years. In 2017 as well the surveyor general completed the survey, identified correct boundaries and correct area of land as being 18,840 hectares.
96. If it was more than one (1) year from 1993 agreement, why would the Commissioner and the Claimants, Usa and Orodani executed the agreement for lease of the land for hydro power project on or about 22^nd June 2017.
97. It therefore turn on the fact entrench in the decision of the Court of Appeal in Axiom case, CAC 34/2014, that lapse of time depend on the facts of the case including activities by the parties.
98. It is now apparent that the parties continue to treat the 1993 agreement as varied in 1996 on foot by their activities in endorsing the 2017 agreement. Even on 31^st March 2015, Lawyer for the trustees wrote a letter to PS of Ministry of Lands that 1996 was not complied with.
99. The pleadings shown by materials filed are in dispute and cannot be resolved without trial. I must therefore dismiss this issue accordingly.

Seventh Legal Issue.

100. The issue is whether the Agreement (Form CL2 ) made on 22^nd June 2017 between Mr. Palmer and initial holders of the estate including the Claimants, was lawful and enforceable in law; and if so, what is the effect of the agreement for purposes of PN. 203-003-001?
101. Is this issue the Defendants concluded that the agreement on 22^nd June 2017 was not effective on the grounds that:
     • (i) It was made when one of the persons signed the 1993 agreement (Mr Kelly) had died.
     • (ii) The 2017 agreement was not published and not sanctioned S. 63 Lands and Titles Act thus the agreement is ineffectual to cause change to 1993 published agreement.
     • (iii) The Acquisition Officer Mr. Palmer executed the 1917 agreement after he had already made determination and competed his duties.
102. The 1996 agreement made it clear the outstanding issues was the outstanding payment of premium will be paid by instalment pending survey and execution of formal lease, required for the implementation of the acquisition.
103. Therefore in 2017, the survey was done as anticipated by 1993 and 1996 agreements. The boundaries were identified and correct area as being 18,840 hectares.
104. On about 22^nd June 2017 Mr. Palmer executed an agreement for lease of komirindi Hydro Power Project with the Claimants, Usa and Orodani (Kelly died in 2013).
105. What the Defendants do understand but probably ignored is that specific performance for an agreement depend on facts and activities by the parties.
106. In the current case the parties still treat 1993 agreement as on foot, hence the 1996 agreement, the 2015 deed and 2017 agreement. If they did agree they would not have participated in executing those agreements.
107. One fine example is that on 12^th March 2018 one of the surviving trustees Mr. Orodani wrote to the Commissioner to release komirindi land PN 203-003-001.
108. The Commissioner made a reply in his letter dated 23^rd March 2018, release of Government interest in komirindi land which covered by agreement to lease dated 11^th April 1996 and variation dated 10^th December 2015.
109. What transpires is if the parties do not agree to continue the process to its finality, and which the Commissioner did agree to release the Governments interest on 23^rd March 2018, then why should the Commissioner endorsed the 1917 agreement with the surviving trustees three months later on 22^nd June 2017?
110. The action by the Commissioner totally reflected that the Government still has interest in the komirindi land.
111. This is another issue stipulated by many factual disputes. It depend on the validity of 1993 agreement for lease and the subsequent agreement to vary. Those cannot be resolve without trial in particular, where the Defendants either misinterpret 1996 agreement and don’t know about the 2015 deed, and the rest of the activities of the parties implying they still have their interest on foot and wish to see the finality of the process.
112. With those narratives I am convinced from the pleadings that this issue cannot be resolved at this stage but require trial. I must there dismiss this issue.

Eighth Legal Issue.

113. Whether the change of purpose of land use from hydro power to logging operation has changed the public purpose of which the land was acquired; and if so, what is the effect of such purpose on the registration of PN-203-003-001?
114. It is not disputed that all three agreements (1993, 1996 and 2017) maintain the purpose for land acquisition which is for the development of hydro power.
115. It is also noted, on 8^th January 2018 the PE Holders grant, grant of profit to the 2^nd Claimant and subsequently the Commissioner of Forest granted Felling License No. A101837 to the 2^nd Claimant.
116. The Defendants submits that the change of purpose from hydro to logging affects the land acquisition substantially, to the extent that the acquisition lost its authority.
117. The defendants are disputing the change of purpose. They also rely on the same Sumitomo case. Upon reading of the paragraph quoted, that the last line of the paragraph reads;
     • ...”Clearly if any further lease is to be made with the outside body which wishes to have rights of access to the land, it will be executed by the Commissioner of land and the body seeking access.
118. That was exactly what was done. The Commissioner of lands and the 2^nd Claimant executed the grant of profit with the consent by the PE holders. Nothing is irregular about that. In fact the paragraph above gives clearly and precise impartation.
119. However, the timing of the change or suspension of purpose owned after registration was done on 8^th November 2017, including registration of the Claimants, Usa and Orodani as joint owners of the PE estate in the whole of komirindi Land.
120. In the last paragraph of the letter stated, trustees to take care of the land; any future land dealings, including development on, or in the land government must be informed of.
121. That is exactly what the PE holders did. The Commissioner only affirmed for administration purposes, of the grant of profit executed by him.
122. Therefore the change of purpose, though disputed, was done by the Commissioner who executed the grant of profit, which ultimately a Felling License was issued to that effect.
123. The charge of purpose did not affect the acquisition to lose its authority, unless there is pleading as to evidence to proof rectification of title, which in the current case nothing. I must therefore dismiss this issue accordingly.

Ninth Legal Issue.

124. Whether the grant of profit by the persons registered as initial holders of the PE in PN. 203-003-001, including the 1^st Claimants, to 2^nd Claimant was lawful?
125. The Defendants argue that the grant of profit is not lawful because the PE in PN. 203-003-001 was invalid as argued in their submissions. Hence initial holders were not lawfully registered so that they could grant a profit to the 2^nd Claimant.
126. As I would repeat the whole entire adjudication process is in dispute. The Claimants acknowledge the agreements made in 1993, 1996 and 2017 maintaining the purpose for the use of land. Besides that, what else more entrenched in those agreements in particular 2017 agreement? It would be absurd to point out one particular term and condition and disagree with the rest. Then resume by wielding argument that the grant of profit is not lawful.
127. In reality the grant of profit, was granted after the Commissioner had released ok that the original registered persons could develop the land. By granting it was a consent given.
128. With facts pleaded I would deduce that the holders of the PE were lawfully registered thus the grant of profit was also lawful. I must dismiss this issue accordingly.

Tenth Legal Issue.

129. Whether Felling License No. A101837 over PN.203-003-001 was lawfully issued and effectual for carrying on logging operation on the land?
130. The Defendants argue that the registration of the perpetual estate was null and void, therefore the grant of profit is unlawful as well. The Defendants refer to the case of Bekele V Bulacan Integrated Wood Industries Ltd.^[3]
131. The case uttered a significant reasoning,
     • “A profit without a timber licence does not authorise the commercial felling, removal and export of logs on registered land...”
132. In the current case, the grant of profit is a material evidence not in dispute. A felling timber licence was issued on 13^th August 2018, followed by the grant of profit not disputed as well.
133. From reading of the paragraph of Bekele case, a timber licence without grant of profit is bare licence. It does not occur in this case. A grant of profit was done, which proof to the Commissioner of Forest, hence issued the Felling Licence No. A101837.
134. I perceive there is no irregularity about it. In any event this issue should be resolved at trial if the parties wish to.
135. All in all, all the issues of fact and law to determine at preliminary stage cannot resolve this case at this stage but require trial so that evidence can be call to substantiate the facts that were pleaded so far.
136. I must therefore dismiss the application with costs.

Orders.

1. The application to deal with issues of fact and law at the preliminary stage is hereby dismissed in its totality.
2. Cost of this application be paid by the Defendants to the Claimants on standard basis if not agreed.

The Court.
Justice Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] CAC No. 34 of 2014.
^[2] Ibid (1).
^[3] [2004] SBHC 122; HC –CC 241 of 2004 (9 December 2004).