Eagon Pacific Plantation Ltd v Omex Ltd [2012] SBHC 61; HCSI-CC 516 of 2010 (17 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 516 of 2010

BETWEEN

EAGON PACIFIC PLANTATION Ltd
Claimant

And

OMEX Ltd
Defendant

Mr Hapa for the Claimant
Mr Marahare for the Defendant

Date of Hearing: 29th May 2012

Date of Judgment: 17th July 2012

Decision on application to amend Defence

1. The Defendants want to amend their defence. The amendments sought are very detailed but can be summed up quite simply. They say that a mistake was made around about 1964 when the land was surveyed and the boundary of the registered land is not where shown on the registered map.

2. The Claim is about trespass. The Claimant says the Defendant trespassed on its land and cut timber there. The Claimant is the registered owner of a fixed-term estate in PN 122-001-004. The estate was granted in 1996. The area became registered land some thirty years before that in 1964. It is part of a larger area (LR720) and was originally designated Lot 13. All this land was the subject of acquisition proceedings. There was even an appeal which related to the acquisition process. None of this is disputed. Nor is it really disputed the Defendant has trespassed within the boundary as shown on the map of the registered land at the land registry. This is the reason for the proposed changes to the defence. Without the changes it is difficult to see what defence can be advanced.

3. The amendments sought are the introduction of cross claimants and cross defendants. The intended cross claimants are "the persons recognised in custom as the trustees for the Kalena Tribe or customary landowning group". The essence of their claim is the survey team which originally mapped the boundaries got it wrong. The intended cross claimants had agreed one boundary but the survey team mapped another. It was all the result of a mistake about the identity of two different mountains. A crucial issue is the placement of a marker peg K0. The intended cross claimants say instead of being near Mount Hengene the marker should have been at the southern foot of Mount Kokogga or at least that is what seems to be claimed in the "Amended Defence and Cross Claim". The intended cross claimants aver the northern boundary of 122-001-4 should be a line running from marker R9 (everyone seems to agree that is where it should be) to the southern foot of Mt Kokogga.

4. There is a sworn statement by Mr Roy Panda (filed 25th October 2011). He says at paragraph 8, "Mt Kokongga (the mountain is sometimes called Kokogga and sometimes Kokongga) was the final place in which we cemented the boundary peg. I can remember that the peg we cemented was situated at the highest peak of Mt Kokongga". Similarly we have evidence of Mr Cornelius Kitimi (sworn statement filed 21st October 2011) where at paragraph 12 he states, "From Romoromo, we went on foot straight up to Mt Kokonga (another variation of the name). When we reached the highest peak of that mountain, we again placed another long stick into the ground....". As I understand it; this evidence is supposed to support the contention the marker KO is in the wrong place and should be in the place marked firstly by the long stick and then the cemented peg. The evidence suggests it should be at the highest point of Mt Kokongga.

5. There is a sworn statement filed on behalf of the Claimant by Mr Anthony Hughes (filed 5th December 2011) who was the District Officer referred to in Mr Kitimi's statement and he says (paragraph 8) "...it is most unlikely that a mistake was made.." about the identification and demarcation of the boundaries.

6. This is not the first time the intended cross claimants have argued there was an error on the part of the colonial government about LR720. They were involved in litigation about another part of the registered land. This is an area to the south west of the land now in dispute. This is the Civil Case No. 273 of 2009 and the Defendant was also a defendant in that case together with the intended cross claimants. His Lordship the Chief Justice gave judgment. He said:

"The main documents relied on (by the Defendants) consisted of copies of original documents of transfer, of significance being a document titled "Agreement for Transfer of Land from a Solomon Islander to the Protectorate Government" dated 12 January 1964. A copy of that document is exhibited as "PH1" in the affidavit of Penny Haro filed 13 August 2010. This is a fairly comprehensive document consisting of four pages which set out in clear and plain terms the area of land being transferred.

His Lordship also observed during the negotiations leading to the signing of the documents "The person who acted as interpreter was Penny Haro". This is the same Peni Haro who is one of the intended cross claimants. As to the boundaries of the land transferred His Lordship said:

"The original transfer documents relied on in this instance cannot be faulted for they had been undertaken with such care, clarity and certainty that the only reasonable conclusion that this court can arrive at is that the landowners who executed those instruments did understand, or must be deemed to have understood what they were doing".

Shortly after His Lordship says:

"The landowners had opportunity to correct or amend the description of the land or the boundary but did not".

His Lordship then concluded his judgement by saying:

"I am satisfied on the material filed before this court that there is no arguable defence to the claim. I note that there are disgruntled landowners who are unhappy about the outcome and legal effect of the transfer of their land in 1964, but in so far as the law that applies under the Land and Titles Act is concerned, they are bound by those decisions made by their elders and tribal leaders".

7. It is clear careful surveys were done at the time. The contemporaneous maps show that. As indicated above, marker point R9 is accepted as being correct. No one seems to dispute the correct placement of NGY90. NGY86 is defined by detailed reference to UTM co-ordinates. This is reflected by the experience of the survey team which is detailed in annexure JN3 of the sworn statement of Jess Ngojo filed 23rd December 2011. He describes how they arrived at where they thought KO should be. It could not be found because of the extensive earthworks carried out by the Defendants. However, he suggested they go back to NGY90, which they had found, and plot the position of KO from there. When they went back to where KO was thought to be and with the aid of modern GPS equipment and using the bearing and distance from NGY90, they found, "This result is almost the same to the information on the lands map".

8. Returning to 273 of 2009, His Lordship's judgment was given on 24th September 2010 some two months before the alleged trespass occurred. The actual claim was filed in August 2009 and much of what is canvassed in this application was canvassed in the earlier case, namely it was all a mistake or a misunderstanding. Given the extensive involvement of all concerned during the negotiations and the subsequent acquisition by the Colonial Government in 1964 and given the obvious care taken in the original survey, I would have to agree with His Lordship's conclusion. As he also observed, "This is a fairly comprehensive document consisting of four pages which set out in clear and plain terms the area of land being transferred." There is a full description of the boundaries (on page 3) where it is said the ground had been walked. That is confirmed it seems by Mr Kitimi in his sworn statement.

9. It is submitted in support of the application for leave that it is of some significance that KO had to be re-constructed. I do not accept that. What is significant is the marker KO had to be re-constructed because of extensive earthworks carried out by the Defendant. There is no evidence to show the destruction was intentional but it seems rather crass to criticise the Claimant for doing something to make good the marker when it was the Defendant's actions which made the re-construction necessary.

10. There is also the question of time. The acquisition and registration process took place in the mid 1960's some 50 years ago. The suggestion is the court should not look at the passing of some 50 years but rather look at the time since the Claimants acquired the fixed-term estate, in other words 1996. The suggestion seems to be the "mistake" only crystallised at that time. I cannot agree. The intended cross claimants were aware of the boundary from the time it was created. To find that the period 1964 to 1996 can be somehow ignored would be totally at odds with His Lordships judgment in Civil Case 273 of 2009. I can only repeat what His Lordship said there:

"The original transfer documents relied on in this instance cannot be faulted for they had been undertaken with such care, clarity and certainty that the only reasonable conclusion that this court can arrive at is that the landowners who executed those instruments did understand, or must be deemed to have understood what they were doing"

11. Leave to amend should be and is refused. This is an attempt to re-litigate all that has been argued before and found wanting. If another reason were needed to refuse the application for leave to amend, the Defendant and its supporters should be referred to section 97 of the Lands and Titles Act [Cap.133]. There is no evidence the intended cross claimants or anyone else involved in this case have taken any steps to refer the question to the Registrar of Titles. Section 97(4) seems to me to prevent this court from entertaining any action about the boundary until they do. As none of those involved in this case made any reference to that point and as there are no submissions about it; and as there are ample other reasons to refuse the application I will leave the issue there.

12. The application is refused and the Defendant and the intended cross claimants shall pay the Claimants costs, such costs are to be assessed on a standard basis by the Registrar of the High Court if not agreed.

Chetwynd J