Simikera v Ragoso [2001] SBHC 22; HC-CC 368 of 1999 (19 April 2001)

HIGH COURT OF SO ISLANDS

Civil Case No. 368 of 1999

MAXWELL SIMIKERA

HERRICK RAGOSO AND OTHERS,<

COMMISSIONER OF LANDS AND REGISTRAR OF TITLES

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High Court of Solomon Islands

Before: F.O. Kabui, J

Civil Case No. 368 of 1999

Hearing: 17^th April, 2001

Ruling: 19^th April, 2001

G. Suri for the Plaintiff

class="MsoNormal" style="text-autospace: none; margin-top: top: 1; margin-bottom: 1"> A. Nori for the 1st Defendants

J. Keniapisia for the Attorney General

RULING

(Kabui, J):span lang="EN-GB"> By Notice of Motion filed on 13^th March 2001, the PlainPlaintiff has asked the Court for the following orders –

1. &nbssp;&nnsp;&&nsp; Lsp; Leave be granted to lhe Plaintiff to further amend his Statement of Claim.

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and Others Civil Case No. 232 of 1999 be continued to be so restrained until the final determination of this case.

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There are two cases currently in the High Court about disputes of ownership of Mbava Island in the Western Province. The first is between Marlon Kuve and Herrick Ragoso and Others (Civil Case No. 232/99). Marlon Kuve claims that he and others are the true trustees of Mbava Island tribe and should have been the registered trustees of Parcel No. 079-006-4 on Mbava Island. He therefore sought an injunction against Herrick Ragoso and Others restraining them from receiving moneys from the logging operation being carried out on Mbava Island. Awich, J. granted that injunction on 16th August, 1999. The term of that injunction was that 7% of the 45% receivable by the 1st and 2nd Defendants be retained for the benefit of the Mbava Tribe. The second is this case, between Maxwell Simikera and the same Defendants. (Civil Case No. 368/99). Maxwell Simikera claims he represents the Sisoro (Zimbo) tribe of Mbava Island and should have been registered as owners of Parcel No. 079-006-2/3/4 on Mbava Island on the ground that he represents the original owners of Mbava Island. He seeks from the Court an order for rectification of the register on the ground of fraud or mistake.

Leave to Amend the Statement of Claim

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Parcel No. 079-006-4 on Mbava Island, Vella La Vella, in the Western Province, was transferred t 1^st Defendants on 5^th February, 1998 as joint owners. It was a transfer of perpetual estate from the Commissioner of Lands to the 1^st Defendants effected on that same date. The registration of that transfer was also effected on 5^th February, 1998. The Plaintiff is already challenging the legality of this transfer in this case by applying for the rectification of the register in his favour on the ground of fraud or mistake. He now seeks leave to further amend his Statement of Claim to include claims for damages for trespass to land and conversion of trees. He bases his claims upon the premise that this tribe were the original owners of Mbava Island before registration and still are the original owners. In my view, the Plaintiffs claims are misconceived. Parcel No. 079-006-2/3/4 is registered land. It is not customary land. It has ceased to be customary land long ago. It may well be that the Plaintiffs tribe were the original owners by custom. That would not change the present legal status of Parcel No. 079-006-2/3/4. The hope that one day, the Plaintiffs tribe will be declared the original owners of Mbava island, is only a hope. It is a hope that cannot be realized until the Government has put in place the legal machinery for the determination of claims of original ownership regarding present registered lands formerly owned by Solomon Islanders in the early days of British colonization of this country. I do not think there can be a cause of action in trespass or conversion based upon facts yet to be established as true facts upon which any cause of action can arise. My remarks in my ruling of 16^th August, 2000 regarding the Plaintiff's right to establish his tribe's rights to original ownership of Mbava Island were to recognise the fact that there is still Government standing policy allowing, original customary ownership to be re-established in the appropriate forum yet to be designated by Parliament. There is so far no legislation passed by Parliament to allow the current

Local Court system to penetrate the seal of registration in order to identify who are the current descendants of the original owners of any land already acquired and registered in the name of the Commissioner of Lands. My remarks were not meant to generate further cause of action by the Plaintiff. I would refuse leave sought by the Plaintiff. This being the case, I would also refuse to make the order sought in 2 of the Plaintiffs Notice of Motion. That is to say, there is no basis for me to grant the order sought. There is a difference. In the Marlon Kuve v Herrick Ragoso and Others (Civil Case No. 232/99), the Plaintiff is claiming priority over the Defendants as the trustees, he and his followers being also members of the Mbava tribe as stated in a Statutory Declaration dated 30^th April, 1987. There was an arborted attempt to execute a transfer to that effect on 30th April, 1987. Whereas in the Maxwell Simikera v Herrick Ragoso and Others (Civil Case No. 368/99), the Plaintiff is seeking the rectification of the register, on the ground of fraud or mistake. There can be no ground for seeking an injunctive order against the Defendants on the basis of trespass to Parcel No. 079-006-2/3/4 and conversion of trees thereon. There is no evidence as yet that they own Parcel No. 079-006-2/3/4 in custom as the original owners in line with the standing Government policy on the matter. In the result, I refuse the application with costs. In my view, this application is unnecessary and should not have been brought to Court in the first place.

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The 11^st Defendant’s Summons

1. &nbbsp; ;&sp;; Leave bn gratoed to the Fihe First Defendants to re-amend the

b>&nbsp &nbs; &nbbsp;&&nbp; &nsp; < Amended Statement of Defeere herein; and

> < /b> <2. &nbssp;&nnbsp;&nsp; &nsp; The Plainto pay pay costscosts occasioned by this application.

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This application is being supported by an affidavit filed by Mr. Nori on 13^th March, 2001. The Amended Defence was filed on 26^th October, 2000. Counsel for the 1^st Defendants told me that he would wish to place emphasis again on the question of time limitation imposed by an Act of Parliament in view of the Plaintiff's refusal to answer interrogatories. I have, read Exhibits “AN2” and “AN3” attached to Mr. Nori’s affidavit referred to above. I feel that leave should be granted to the 1^st Defendants to amend the Amended Defence as they deem fit. I do so under Order 30, rule 6 of the High Court (Civil Procedure) Rules 1964 of (the High Court Rules). Rules 7 of this Order of the Court of the High Court Rules would apply automatically. That is to say, I have not imposed any time limit for less then 14 days. Cost be in the Cause.

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F.O. Kabui

Judge