Balesi v Hiva [2008] SBHC 97; HCSI-CC 316 & 457 of 2007 (25 June 2008)

IN THE HIGH COURT
OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 316 and 457 of 2007 consolidated

BETWEEN:

IVIN MINDU LETIPIKO BALESI (Representing the Nono Landowners/Tribe)
1st Claimant

AND:

SKINNER RENCE, ABRAHAM HITU (Representing the Mohi/Talamu Landowners/Tribe)
2nd Claimant

AND:

CHILLION MAEOPIO and DONALD DAVIS (Representing the Guva Landowners/Tribe)
3rd Claimant

AND:

JONATHAN KEKEVU, JAIRUS SALATO (Representing the Choki Landowners/Tribe)
4th Claimant

AND:

ELMA KORYAR, WATSON TIVURU and AMBROSE NGATU
(Representing the Chale Landowners/Tribe)
5th Claimant

AND:

JOSEPH BATES, LAWRENCE KILIVISI, TIMOTHY SUSA
(Representing the Kalivarana Landowners/Tribe)
6th Claimant

AND:

J. P. ENTERPRISES LIMITED
7th Claimant

AND:

RODNEY HIVA, NILTON CHITE (Representing the Choe Landowners/Tribe)
1st Defendant

AND:

CHACHABULE AMOI
2nd Defendant

AND:

ALICK NGIRA and SILAS TOTOLO
3rd Defendant

AND:

COMMISSIONER OF FORESTS
4th Defendant

AND:

COMMISSIONER OF LANDS
5th Defendant

AND:

REGISTRAR OF TITLES
6th Defendant

(Palmer CJ.)

Date of Hearing: 23rd June 2008
Date of Ruling: 25th June 2008

C. Ashley for the 1st – 3rd Defendants;
P. Tegavota for the 7th Plaintiffs;
A. Nori for the 1st – 6th Claimants (no appearance);
P. Watts for the Plaintiffs in Civil Case 457 of 2007;
D. Nimepo for the 4th – 6th Defendants.

DECISION ON APPLICATION FOR STAY

Having heard counsels on application for stay of execution of the orders of this court dated 16th April 2008 directing rectification of the perpetual estate register in parcel number 123-008-1 by having it quashed as a nullity and discharge of the orders of this court dated 11th January 2008 and reserved the matter for consideration, I now rule as follows.

1. That while on one hand the claimants are entitled to the fruits of their victory by virtue of the decision of this court dated 16th April 2008 to have the perpetual estate register in parcel number 123-008-1 brought up to this court to be quashed on the grounds of mistake and or fraud, the 1st – 3rd defendants have filed notice of appeal against that order of the court and accordingly it would not be proper in the circumstances not to grant a stay.
   
2. The power of the court to grant a stay under section 19(f) of the Court of Appeal Act is discretionary. In this instance the issues of law and fact are arguable. They deal with legislation governing the process and registration of land. While on one hand the defendants say they have complied with the necessary requirements for registration which occurred way back in 1973 and thereabouts, this Court had found in favour of the claimants that the registration was flawed ab initio in that it was obtained for a purpose outside of the acquisition process and thereby obtained by mistake and or fraud and should be interfered with. These are arguable matters to say the least and one cannot say for certain that the appeal is frivolous, without merit or a hopeless case.
   
3. There is also another reason why the stay of execution should be granted. This is based on the counter-claim of the defendants that the licence relied on by J P Enterprises was invalid. As a consequence they argue the timber rights agreement was also invalid. This means even if the argument about registration may be resolved after the Court of Appeal delivers its judgment on the matter, the issue about the validity of the timber licence and timber rights agreement are separate issues under the Forest Resources and Timber Utilisation Act [cap. 40] and raise triable issues. This further supports the case for a stay to be imposed.
   
4. I understand restraining orders were imposed by this court dated 11th January 2008. In view of the appeal and the stay ordered by this court, these should continue; that includes injunctory orders in relation to royalties.
   

Orders of the Court:

1. Grant orders for stay of execution of the orders of this court dated 16th April 2008.
   
2. Order that the restraining orders of this court dated 11th January 2008 to continue until further orders.
   
3. Costs in the cause.
   

The Court.