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High Court of Solomon Islands |
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 2000
Judgment: 22 May 2000
K H Averre for the plaintiff/applicant
L Kwaiga for the first and second defendants/respondents
G Samuel for the third defendant/respondent, on behalf of the Attorney General
JUDGMENT
(LUNGOLE-AWICH, J): This is judgment in the application of the plaintiff, Francis Joseph Saemala, for interlocutory injunction order. It started as application for interim injunction order.
On 29.3.2000 Mr Saemala filed a writ of summons and statement of claim 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 land right over 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 one of the lands, Parcel 101-001-57, to Rex Fera, the first defendant, who then had the fixed term estate registered with Richstone Real Estate Ltd, the second defendant, as the owner of the fixed term estate. The plaintiff repeated in his affidavit to support his application, what he averred and stressed that the first and second defendants have brought onto the lands large amount of soil, have done large scale compacting work and were continuing with the work, they intended to construct some large commercial structure on the lands. In his statement of claim the plaintiff has asked the Court for certain declaratory relief to confirm his claim, and the relief of damages for trespass and permanent injunction.
A claim in trespass to land - trespass quare clausum fregit is founded on, and is used to protect possession of land. It is action in conversion or ejectment that is founded on and is used to protect title (ownership). Conversion to land is the wrong of dealing with another's land in a manner inconsistent with his title, sometimes said to deny the owner the right to possession. In this case, only the title of the plaintiff has been averred in an action in trespass to what may be vacant land, the implication is that the owner has the right to immediate possession of the vacant land so as to found the action in trespass. The point has not been taken that the plaintiff has not been in possession, I assume that he had possession or at least the right to immediate possession. The point will have to be adequately addressed in the substantive case.
As a matter of interest, it appears that under the Land and Titles Act the fixed term estate that may be granted by the Commissioner under Part X of the Act is very much akin to leasehold interest for a stated period, that may be granted by persons other than the Commissioner, under Part XI of the Act.
The Application for interim Injunction Order, and Interlocutory Injunction Order.
Thirty days after filing his case, 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 proceeded. 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 that it might be desirable to have the compacting work stopped if the case for it was made, could be heard as an inter partes urgent application on short notice, that could be shorter than the minimum 2 clear days notice for non-urgent application 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, also there were 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 for making application for interim injunction order, in the yet unreported case of Andrew Kofela -v- Elisha Sanga and Stanley Beka, HCCC206 of 1999.
It was a good thing that in this case, on the first occasion I insisted on the defendants being served with the application for interim injunction order, I was able because of that 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. It must be remembered that at the stage of making application for interlocutory order, the rights of parties in the substantive case are yet to be determined, losses that can be avoided should be avoided.
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 which has prospect of succeeding. He has to present facts on affidavit that if found credible, will sustain his claim in law and he will be entitled to the relief he has asked for. That means that the plaintiff 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. In an application for interlocutory injunction order, the facts must not be rendered unbelievable by affidavit filed by the defendant/respondent because that destroys the prospect of success. There are numerous helpful cases on the point in this jurisdiction, some of them are: 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 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. Our Court has adopted for the start the important judgment of the Court of Appeal in England in American Cyanamid Company -v- Ethicon Ltd [1975] UKHL 1; [1975] CA 139 1 [1975] 1 All ER 304.
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 numbers and parcel numbers. I directed that a survey be made of the whole area and a report filed. I then called expert witness to explain the report. I allowed counsel for the parties to cross examine the witness. It is not the 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. It gave detail of the small part of Lot 90 compacted as covering 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 to be registered subsequently, 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.
Are there Serious Issues with Prospect of Succeeding?
Does the plaintiff have a case or cases about the land area identified as being compacted? First, 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 in his affidavit as, "lands around Auki Township including Lot 90 and Parcel 101-001-57 ("Lot 57")." Well, "Lot 57," is a misdescription of Parcel 101-001-57 which was formerly Lot 80. So the plaintiff has included Lot 80 in his claim even though he wrongly added in bracket the description, "Lot 57". Parcel 101-001-57, not "Lot 57," is the current description of what was Lot 80. The descriptions of the lands given by the plaintiff indeed include Lot 80 (now Parcel 101-001-57) and Lot 90. I have already said that according to the survey report, parts of both Parcel 101-001-57 (formerly Lot 80) and Lot 90 have been compacted.
Do the claims of the plaintiff about Lot 90 and Parcel 101-001-57 raise serious issues, that is, arguable cases 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 the plaintiff's tribe and other tribes own. The plaintiff claimed that while the case proceeded on appeal to the High Court, the Commissioner (by then a different one) went ahead and acquired the lands, and has since granted fixed term estate over one, Parcel 101-001-57, to the first defendant, who had the fixed term estate registered with the second defendant as the owner of the estate. The plaintiff's claims against the first and second defendants about both Lot 90 and Parcel 101-001-57 are in trespass to lands over which he claims customary land right. He has asked for the relief of injunction and damages and certain declarations to clarify his claim; on that he has applied for interlocutory injunction order to stop work on the lands while the case proceeds.
Is there Serious Issue about Lot 90?
The defendants so far have not claimed any right over Lot 90 and they have not included in their affidavit a denial that they have encroached on Lot 90. Their affidavits were about their registered interest over Lot 80 only, although mention was made that the claim of the plaintiff's tribe is being contested by a tribe that co-claimed customary right with the plaintiff's tribe. In my view that merely raises ius tertii which is no defence to a claim in trespass unless the defendant claims right through the third party, the co-claimant tribe. 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 statement of the law is really the same as common sense on the point. 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 so far. The facts deposed to by the plaintiff in respect of Lot 90 therefore do raise, at this stage, serious issues in favour of the plaintiff against the 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.
Is there Serious Issue about 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 as the facts in respect of Lot 90, but the statuses of the interests in the two pieces of land are different. It has not yet been proved that 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 status of an interest in land that has been registered under the Lands and Titles Act is very strong indeed. Registration of an interest in land under the Land and Titles Act confers statutory protection to the interest and the registered interest cannot be defeated by other claims of right except if and as provided for in the Act. I have gathered that statement of the law 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) .....
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 case with prospect of succeeding, 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 a serious enough issue to have the registered interest removed.
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 to the effect that customary right defeats registered fixed term estate in the same land. That is not to be taken to mean that a 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 claim to customary right in the land over which some other interest has already been registered has been brought to court in a form not good enough to challenge the registered interest, the action in Court is therefore not tenable in as far as defeating the registered interest so as to give way to the claim of customary land right; it therefore does not raise serious issue.
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 interim or interlocutory injunction order. In fact the majority of applications for interim or interlocutory injunction orders in this Court have been based on customary land right. A great many of those cases were to obtain interim or interlocutory injunction to stop licensees logging while rival land claims were determined.
A situation where there is a claim of customary land right over land along side a claim based on registered interest over the same land is an anomaly in my view. It should not occur at all because customary land right over land would have existed before the registered interest. Usually the owners of customary right may convert their customary right by registering themselves as the owners of perpetual estate or as trustees for joint owners, their tribes folks and themselves. On the other hand, the owner or owners of customary land right may create a lease over the land in favour of someone who then is registered as the owner of the lease interest. Customary land right may also be converted to registered interest by the Commissioner of Lands who may under the Land and Titles Act, acquire customary land for public services such as schools, hospitals or for leasing out for development; in that event the Commissioner would have held public hearing to determine those who have customary land right over the land and he would have paid appropriate compensation or rent for the land to the owners of customary right.
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, a process described in the Act as rectification of register. That way there would be a substantive case under the Act capable of defeating registered interest. The High Court case, No. 378 of 1999, 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 incapable of being introduced into the statement of claim in the present substantive case.
Application Succeeds Partly
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. On the first day of hearing and before learned counsel Mr Averre, appeared for the plaintiff, the plaintiff in person stressed a complaint that vehicles belonging to the government was being used in the wrongful construction work. I informed him that his case filed at Court was not about government vehicles. The determination I have made does not take into account the use of government vehicles. Court deals with one case at a time as they are brought.
Security for Damages Not Ordered
I have considered security for damages or undertaking as to damages that may arise to the first and second defendants because of the limited interlocutory injunction imposed. I have concluded that it is not necessary to order security for damages because the defendants so far have not claimed any right over Lot 90, they cannot say that they will suffer damages in respect of an area of land which they have not laid claim over.
Can the Commissioner of Lands Evade Responsibility?
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 the correct view or a responsible view to take on the facts of this case. The plaintiff avers that the Commissioner wrongfully went ahead and acquired the pieces of land in issue while an appeal was pending at the High Court, and further, that the Commissioner wrongfully made the grant of 50 years fixed term estate over Parcel 101-001-57 to the first defendant based on that acquisition, how can the Commissioner decline to answer those allegations without risking the finding against him that he wrongfully acquired the land and wrongfully allocated it? If the Court makes that finding of facts might the plaintiff not claim damages against the Commissioner or against all the defendants jointly? I have noticed that in most land cases the Commissioner has taken that evasive stand. The Commissioner might wish to consider that in appropriate cases, not necessarily this case, but could be this case, there are ways to make an officer holding public office pay damages and costs personally for his wrongful action especially if the action is fraudulent or is actuated by malice. Moreover, the government may be sued for negligence of the Commissioner even if the government has not gained from the land transaction.
The Orders Made on the Application
The order that the Court makes are:
Delivered this Monday the 22nd day of May 2000
At the High Court
Honiara
Sam Lungole-Awich
Judge
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