Simon v Eagon Pacific Plantation Ltd [2018] SBCA 9; SICOA-CAC 39 of 2017 (11 May 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Faukona J)
COURT FILE NUMBER:	Civil Appeal Case No.39 of 2017 (On Appeal from High Court Civil Case No. CAC 382 of 2015)
DATE OF HEARING:	3 May 2018
DATE OF JUDGMENT:	11 May 2018
THE COURT:	Goldsbrough P Hansen JA Young JA
PARTIES: FIRST APPELLANTS: SECOND APPELLANT: THIRD APPELLANT: RESPONDENT:	ARI SIMON, MISAKE NAGOTO, STEVEN RIQEO, ELIHU LIPU, SOLOMON KULI & DON RIQEO ATHENA INVESTMENT LIMITED GALLEGO RESOURCES LIMITED -V- EAGON PACIFIC PLANTATION LIMITED
ADVOCATES: APPELLANT: RESPONDENT:	M. Bird J. Sullivan QC S. Lepe
KEY WORDS:
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1- 6

1. The Respondent to this appeal, claimant in the court below, is the holder of the Fixed Term Estate (FTE) in Title Number 122 001 0004.

2. The claim, filed 17 August 2015, seeks declarations, permanent injunctive relief and damages as against all three Appellants because of logging which is said to have taken place within Title Number 122 001 0004.

3. The First Appellants, defendants in the court below, hold a Felling Licence, issued in August 1999 (p126 AB). The area covered by the Felling Licence is defined (p128,129). The licence was over time extended, latterly until 20/8/2017. The second and third Appellants are the logging companies engaged or subcontracted to conduct the logging operations under the First Appellants licence.

4. The amended defence and counterclaim is to the effect that logging took place only within the logging area covered by the Felling licence, even where it took place within FTE 122 001 0004, and that the boundary of FTE 122 001 0004 is wrong and should be rectified.

5. The matter came before the High Court and was determined on an application to strike out the counterclaim and for summary judgment to be entered on the claim.

6. On this appeal there is no complaint about the decision to strike out the counterclaim. In the High Court it was determined that the First Appellants lacked locus standii to claim ownership of customary land, the First Appellant being a Registered Business; that the counterclaim was statute barred; and that the counterclaim disclosed no cause of action.

7. We are therefore not required to form any conclusions on the decision to strike out the counter claim. Given the facts, we can readily understand why the strike out was decided as it was and why it was not the subject of an appeal. The First Appellants, a registered business, can have no claim to customary land ownership, and registration of the land with boundaries as they now appear took place more than 40 years ago.

8. After the counterclaim had been struck out, it was necessary for the judge at first instance to turn to the defence filed to determine the application to enter summary judgment. The application before him was, after all, twofold. That question arises as a result of paragraph 3 of the application where, in the event that the counterclaim is struck out, the Respondent asked for summary judgment to be entered with damages to be assessed under Rule 9.57 of the Solomon Islands Court (Civil Procedure Rules) 2007 (the Rules) on the grounds that the Appellants have no real prospect of success defending the claim.

9. From the judgment it can be seen that, after determining the counter claim, the trial judge set out nothing save his decision on the question of success prospects and recorded entry of the summary judgment. It is this apparent failure to consider the defence and its prospects of success that is the essence of this appeal.

10. The Appellants ask for this matter to be remitted to the High Court for consideration of this question, conceding at the same time that this Court has the power to consider the question itself. The Respondent equally concedes that, where necessary, this Court may determine the question.

11. Given that concession we heard submissions on the defence and its prospects in order that we might decide whether sufficient material was before us on the appeal to determine the issue without the need to send the matter back.

12. Counsel for the Appellants raised two matters which, it was submitted, led to the Appellants having prospects of defending the claim, a bona fide belief in the claim of mistaken boundaries and of overriding interest under section 114 Land and Titles Act Cap 133.

13. There is no material on which to determine the bona fides of the Appellants in their defence and we therefore make no finding on the matter. It is sufficient to say that regardless of their beliefs, the effect of registration of the land and subsequent grant of the FTE to the Respondent is to provide the Respondent with the right of indefeasibility as set out in section 110 of Cap 133. Only an overriding interest as defined in section 114 of Cap 133 will defeat their rights to the land.

14. Section 114 provides (inter alia):-

114. The owner of a registered interest in land shall hold such interest subject to such of the following overriding interests as may, for the time being, subsist and affect the same, without their being noted on the register-

(a)

(b)

(c)

(d)

(e)

(f)

(g) the rights of a person in actual occupation of the land or in receipt of the rents and profits thereof, save where enquiry is made of such person and the rights are not disclosed:

(h)

(i)

Provided that the Registrar may direct the registration of any of the liabilities, rights and

interests hereinbefore defined in such manner as he thinks fit.

15. Had the Felling licence been in force prior to first registration it may have amounted to an overriding interest under section 114. The FTE was registered in 1996 and the Felling Licence in 1999 and so it cannot be that the Felling Licence becomes an overriding interest.

16. Counsel for the Appellants submits that it was the belief in the custom boundaries and the previous usage of the land now registered by some of them, presumably the first named appellants in their personal capacity as opposed to the business entities named as Appellants, from earlier times as gardens and, more generally, regarded as their custom land that gives rise to a further notion of overriding interest.

17. Counsel for the Respondent submits that this was not pleaded in the amended defence and counterclaim and should not be considered by this Court on this application for summary judgment nor by the High Court in determining the same. We note that submission based on the pleaded case for the Appellants but would proceed to note that, even if pleaded, which we agree it is not, it would not assist the Appellants in their defence given that any such rights were themselves extinguished by the Acquisition process which preceded the grant of the FTE to the Respondents.

18. Given these circumstances, it is apparent that, with the correct decision given in dismissing the counter claim, the judge at first instance felt no need to expressly set out what is effectively the same material raised in the defence. He should have done so to make it abundantly clear that he had considered the defence but he has committed no error in his substantive determination.

19. In the event, the appeal is dismissed and the orders made in the High Court confirmed. Costs of and incidental to the appeal are awarded to the Respondent to be agreed or assessed with certification for Queens Counsel.

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Goldsbrough P

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Hansen JA

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Young JA