Hebala v Sego [2011] SBHC 89; HCSI-CC 255 of 2011 (9 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, J)

Civil Case No. 255 of 2011.

BETWEEN:

RODRICK HEBALA
(Representing the Rogisi Clan members of Sisiga and Kia villages).
Claimant

AND:

HIKISI SEGO AND BASIL LONSWALD
First Defendants

AND:

STEPHEN RAMO, KENRICK EZULOLO
Second Defendants

AND

ETHEL HITA

AND

D.P DEVELOPMENT LIMITED
Third Defendants

Date of Hearing: 31st August 2011.
Date of Decision: 9th September 2011.

Mr B. Eteomea for the Claimant
Mr M. Pitataka for the First, Second and Third Defendants

DECISION ON APPLICATION FOR INJUNCTIVE RELIEF.

Faukona, J: This application was filed by the Claimant on 12th July 2011; seeking injunctive relief, restraining the first, second and the third Defendants from carrying on logging activities, in terms of felling and extraction of logs for export; and any other related activities within rogisi land (perpetual estate no. 089-001-6); and an order that all the Defendants to remove all logging machineries, equipment, houses, structures and employees from the land.

2. On the outset there is common knowledge that the Claimant and the first and second Defendants belong to the same rogisi clan, which uphold the matrilineal system of inheritance in Santa Isabel Island.

3. In an unknown historical date this particular land known as "Ghatere land" was purchased by the commissioner of lands. At some stages later there was an agreement to transfer or resale the land clothed with new description "perpetual estate" back to the original land owners. To do so a statutory declaration pursuant to Section 195 (3) of the land and Titles Act, disclosing the identity and interest of the persons beneficially interested in the land to be executed.

4. On 4th June 1979 a Statutory Declaratory was endorsed and executed by Wilson Sade, Ethel Hita, Michael Vari, Ben Fanoa and Kadese Goto. They were the persons nominated to represent the rogisi clan and agreed that the land be in their names as joint owners.

5. On 29th May 1980, pursuant to the agreement the Commissioner of Lands executed the transfer instruments to the five persons whose names appeared in the Statutory Declaration as "joint owners". From the documents "Exhibit RHI" attached to Mr Hebala's sworn statement of 26th August 2011, it showed that the "joint owners" executed the transfer instrument on 29th and 30th March 1980 respectively.

6. Section 195 (3) of the land and Titles Act says;

"No interest in land shall be registered in the names of one Solomon Islander as joint owners, unless there is produce to the Registrar a statutory declaration made in public by each of the joint owners setting forth the names, description or group name and, so far as practicable, the interest of the persons beneficially interested; where only interest is so registered no dispositions of the interest shall be registered unless there is similarly produced to the Registrar a statutory declaration made in public by each of the joint owner that the person beneficially interested have been consulted and that those in favour of the disposition of the interest are entitled to the majority portion of the beneficial interest".

7. Over time, four of the five joint owners died and no step was taken to nominate a replacement by the rogisi clan in accordance with the process. To date only one surviving registered owner is alive, Mr Michael Vari.

8. What ought to have been done following those deaths is that each of the surviving joint owner who remain on title would need to provide a statutory declaration to the Registrar of the names as acceptable nominees to represent the beneficially interested. In this case there was nothing done. Instead both the Claimant and the first and second Defendants and other descendants of the two founding women of the Clan, who were joint owners and whom had now demised, and perhaps may be others that follow; rather than complying with the law indulged themselves in dispute and denying rights of one another. There were separate meetings conducted by the descendants of the two sisters who recommended and nominated names but nothing advance forward from that point. No statutory declaration was filed with the Registrar leaving a sole survivor which ought to be respected.

9. On that basis was a short fall consequential to a grant of any profit. Despite all odds a grant of profit was executed by Hikisi Sego, Stephen Ramo, Basil Lonswarld, Ethel Hita and Hendrick Ezukolo on 21st March 2011, over the land to the third Defendant to enter and extract logs for export. From evidence those who executed the grant of profit are the descendants of Kadese Goto and no one represented the descendant of Ethel Hita. Apparently no evidence in rebuttal to that assertion. The question to ask was the grant registered? Of course it was, but without compliance with the processes in particular Section 195(3) of the Act.

10. The issue before this Court is who owns Ghatere perpetual estate Parcel Number: 089-001-6. Is it Kadese Goto on Ethel Hita or both? The issue of ownership of land and who should be nominated to represent the beneficiaries after the demise of the two women. It is a question that has to be resolved by the clan itself or by the local Court through the Chiefs. This Court is not a right forum to determine such issue, in particular who should be nominated to replace the deaths.

11. In the case of Taluomea V Lolo Ngalulu Development Corporation Ltd[1], His Lordship Palmer J at that time make reference to the pronouncement made by Brown J in Alex Lokepio's case which His Lordship extract on page 2 paragraph 3; and said,

"Where, after the licence have issued, there is disagreement amongst the tribe over logging, that disagreement cannot ground a cause of action to impugn the agreement and licence under the Act, once the time for appeal has expired. It is a disagreement amongst the tribe and should be resolved in the proper place, the Local Court."

12. Even if I am allowed to encroach into the jurisdiction of the chiefs, any tribal issue has to be pleaded. In the statement of claim it surely did not disclose any tribal issue at all. What appears in the claim is disagreement about ownership of land and who should be authorized and nominated to represent the clan replacing the deaths. That has to be dealt with by the clan itself. In the event it cannot able to resolve it, it has to go before the chiefs for determination.

13. In the case Blay V Pollard and Morris[2] the Court said;

"But no fraud is alleged in the pleadings; no application has been made and I cannot think a judge should find fraud or conduct amounting to fraud when it has never been pleaded. Case must be decided on the issue on the record and if it is desired when it has never been pleaded".

In Patty V Tikani,[3] Kabui J, as he was stated on page 4 paragraph 6;

"In this case, I cannot think otherwise that to say that the Claim is a statement of claim is for general damages only for trespass. I cannot read into the general damages specific damages unless such are particularized and pleaded"

14. The principal in those authorities were adopted in the case of Nimelia V Solomon Islands Home Finance Limited[4].

15. Mr Pitakaka submits that since this case deals with registered land under Section 109 of the Land and Titles Act, Section 110 confers indefeasibility of title to registered owners. The only way rights of registered owner be defeated is by way of proven fraud or mistake provided for under Section 229 of the Act. This Court has the power to order rectification of the land register by directing that any registration be cancelled or amended where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

16. That leads on to the next argument advance by Mr Pitakaka, even if the Court finds there is issue of mistake or fraud it is a requirement that those facts which give rise to fraud or mistake be particularize.

17. The issue of fraud has never been pleaded and particularise in this application. However I noted it was pleaded in another case (Civil case No.224 of 2011) with different parties. Apparently it is difficult to cross plead issues which are grounded in another case. It verily shows that this application has not been founded on a claim.

18. The test on interlocutory relief is clear and simple. There may be serious issue to be tried, that will finally emerge when the claim is filed and litigated in the appropriate avenue. Any harm that may cause to the Claimant can be remedied by damage – See Basil Maepuhi, Ezekiel Hilly, Michael Belama V (1). Marovo Development Company Limited and (2) New World Ltd[5].

19. Mr Eteomea submits that there will be more harm to the Claimant in allowing the logging to continue than the Defendants be restrained. Justice Goldsborough said in the above case in paragraph 14[6].

"That is not the correct test but represent a misunderstanding of the balance of convenience. The balance of convenience only falls to be considered where there are serious issues to be tried and where damages alone are not adequate remedy. It is where there is doubt as to the adequacy of damages that the balance of convenience arises. Here damages are adequate.

20. In this case the serious tribal issue is ownership of customary land that ought to be litigated in the appropriated forum. Not in this Court. The issues of damages and trespass cannot be read into the claim. The same disaster is noted on the issue of fraud which was pleaded in another separate case by different parties. I therefore conclude that this application is not shown that there is a claim on foot. I must therefore dismiss the application.

Orders of the Court.

1. Orders 1-3 sought by this application refused.

2. Cost of this application is borne by the Claimant.

The Court.

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^[1] [2003] SBHC; HC 002 of 2003 [25^th July 2003].
^[2] [1993] KB 628 Page 634, paragraph 1&2.
^[3] [2002] HC-CC 197 of 2002.
^[4] [Unreported] HCSI – CC 200 of 2005 (21^st November 2008).
^[5] Unreported, CC 294 of 2008 (28^th October 2010).
^[6] Ibid