Talasasa v Lampio [2011] SBHC 87; HCSI-CC 390 of 2010 (7 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 390 of 2010

BETWEEN

JOHN WESLEY TALASASA, TERRY TALASASA, BEI TALASASA and HENRY TALASASA (Representing the Primary Rights Owners of Kazakuru Left Hand Land)
Claimants

And

GUMI LAMPIO, MAGELLAN LUBARA PIRIPITA, BILLY VEO, JOHN TUTA ZIO and MILTON AQORAU
First Defendants

And

BMOBILE (SI) Ltd
Second Defendant

Mr Tigulu for the Claimants
Mr Pitakaka for the First Defendants
Mr Ipo for the Second Defendant

Date of Hearing: 18th July 2011
Date of Judgment: 7th September 2010

RULING

1. This is a hearing dealing with two applications, one to strike out the Claim and the other for leave to amend the Claim. It was convenient to deal with both at the same time.

2. The case involves land (known as Kerapagara) being "leased" to the Second Defendant ("BMobile") by the First Defendants. The First Defendants say they are the owners whereas the Claimants say they are primary owners of the customary land known as Kazakuru Left Hand Land which includes Kerapagara. As explained in a ruling dated 29th November 2010, it relates to an area of land about 40 m² just north of the Munda airstrip. BMobile have built a mobile base station there as part of the infrastructure for their mobile telephone service. The evidence is not clear as to whether a lease has been executed. There is no doubt that some kind of lease is intended.

3. In order to resolve what interest BMobile would have in the land a process under the Lands and Titles Act [Cap.133] ("L&T Act") was utilised. A Land Acquisition Officer was appointed and he made a determination that the First Defendants were the, "True representatives of the Gumi tribal land owners, Munda, Roviana, Western Province and therefore have the right to lease the said part of 50m x 50m Kerapagara land to Bemobile and to receive the rent money" [1]. BMobile began building the base station. The Claimants were most unhappy about that and letters were sent by them to BMobile. The Claimants informed BMobile they were the primary owners of Kazakuru Left Hand Land by virtue of previous court decisions. BMobile did not accept that argument and the construction went on apace. The Claimants commenced proceedings. A claim was filed on 22nd October 2010. On the same date the Claimants sought an injunction. The application for injunctive relief was heard on 22nd November and the ruling of 29th November, mentioned earlier, resulted.

4. Clause 2 of the order made on 29th November granted leave for the Claimants to amend their claim. This was because I expressed some misgivings about the claim as lodged. An amended claim was lodged. BMobile say the claim was not amended in time and that in any event what was filed was defective and disclosed no reasonable cause of action. That is the basis of the application to strike out. The Claimants are saying that not only do they want to challenge to "ownership" rights of the First Defendants they also want to challenge the acquisition procedure itself. That is the basis for the application for leave to amend.

5. I have taken some time to consider the matter. The draft Amended Claim attached to the application for leave filed 7th June 2011 is, to all intents and purposes, a new claim. It does not seek declarations about ownership based on previous court cases. The claim of ownership is part of the statement of the case but no relief directly related to claim of ownership is sought. Instead the Claimants are saying that Western Province had no right or authority to appoint an Acquisition Officer in the particular circumstances of this case and that any determination he made was therefore unlawful. It is not so much an appeal from the determination of the Acquisition Office, more of a claim that there should never have been one in the first place. The case now proposed will be more of a judicial review of the decisions of Western Province rather than the Acquisition Officer.

6. I am prepared, in the interests of justice to permit this change of direction. I refuse the Second Defendants application to strike out or dismiss the claim. I grant leave for the Claimants to amend the claim in accordance with the draft attached to the application for leave save that the Attorney General representing the Western Provincial Executive shall be added as Third Defendant and the Attorney General representing the Land Acquisition Officer shall be added as Fourth Defendant. The amended claim shall be served on all defendants within seven days, including those newly named. Notices of discontinuance will need to be filed in respect of Micah Lamupio (unless he is the same person named as Gumi Lampio), Milton Aqorau and Kitchener Vazu. The Claimants shall pay the Defendants' costs of the applications heard on 18th July 2011, the Defendants' costs of any consequential amendments and any costs thrown away. Those costs are to be taxed if not agreed. A Chap 15 conference shall be arranged once Defences are filed.

Chetwynd J

---

^[1] See page 16 of exhibit MA1 to the sworn statement of Michael Akhoy filed 3^rd November 2010