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Kingmele v Oceania Trading Co Ltd [2024] SBHC 159; HCSI-CC 174 of 2018 (2 December 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 174 of 2018

BETWEEN:

CHIEF EDWARD KINGMELE, DOMINIC BAKALE, BRUCE OTUANA AND LOVINAU
(In their capacity as beneficiaries in the perpetual Estate in parcel 01-001-13 Shortland Islands)
First Claimants

AND:

CT. HOLDING LIMITED
Second Claimant

AND:

OCEANIA TRADING COMPANY LIMITED
Defendant

Date of Hearing: 2 December 2024
Date of Ruling: 2 December 2024

For the Claimant: Marahare D
For the Defendant/Applicant: Olofia E

RULING ON APPLICATION TO DETERMINE PRELIMINARY ISSUE OF LAW

Kouhota J

On 7^th June 2018 the Claimants filed a category A claim against the Defendants for trespass and damages for conversion of merchantable trees felled and illegally removed from the perpetual estate in parcel No. 019-001-13 (LR713) located on Sukaia land, Shortland Islands, Western Province. On 21^st June 2018, the Claimants obtained interim injunctions against the Defendants’ restraining the Defendant from carrying out logging activities on LR 173 on Sukaia land, Shortland Islands.

This is an application for determination of a preliminary issue of law filed by the Claimant on 25^th August 2023. The question, the Court is asked to determine is “whether or not section 97 of the Lands and Titles Act (Cap.133) as amended is relevant or applicable to the proceeding in Civil Case Number 174 of 2018. If so whether or not the Defendant is entitled to rely on section 97 of the Act as a defence to the claim for trespass filed on behalf of the Claimants.

Section 97 of the Lands and Title Act states;

1. Where any uncertainty or dispute arises as to the position of any boundary, the Registrar, on the application of any interested party, shall, on such evidence as the Registrar considers relevant, determine and indicate the position of the uncertain or disputed boundary.
2. ......
3. Where the Registrar exercises the powers conferred by subsection (1), he shall make a note to that effect on the registry map and in the register, and shall file such plan or description as may be necessary to record his decision.

No Court shall entertain any action or other proceedings relative to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in this section

To the determine the question of law, the Court must first consider if there was any uncertainty or dispute arises as to the position of any boundary of the registered and whether the Registrar had consider and indicate the position of the uncertainty or disputed boundary. In other words if the claim was a dispute over the boundary of PN. No. 019-001-13 (LR713) located on Sukaia land.

I had considered the claim and find that the claim is for trespass on PN 191-001-13 (LR 713). A claim for trespass raises issue of ownership but no directly the issue of boundary. The Court of Appeal in Eagon Pacific plantation Ltd v Haro [2018] SICOA –CAC 9047 of 2027 explained the purpose of section 97 as follows; “section 97 (1) of the LTA is to cover such relatively minor situations such as when a survey peg cannot be found and adjoining owners cannot agree on the actual boundary. It is simply dealing with an uncertainty or dispute over the position of the boundary not the ownership of the land. It cannot be used to change the ownership of registered land. The intend of the section, and plain words simply allow the Registrar to confirm a boundary line not change ownership”

Having considered the application, the material before the Court, the submission of counsels and in view of what the COA said, I must agree with the submission of counsel for the Claimant that the present proceeding is not a dispute in respect of two or more registered lands so that the Court luck jurisdiction where section 97 has been exhausted.

For this reason therefore, the Court is satisfied section 97 of the LTA does not apply and the Defendants cannot rely on section 97 as a defence for trespass. The Court therefore grants the reliefs sought by the Claimants. I so order.

THE COURT
Emmanuel Kouhota
Puisne Judge