Solomon Islands Ports Authority v Korean Enterprises Ltd [2013] SBHC 100; HCSI-CC 140 of 2012 (6 August 2013)

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

Civil Case No. 140 of 2012.

BETWEEN:

SOLOMON ISLANDS PORTS AUTHORITY
Claimant

AND:

KOREAN ENTERPRISES LIMITED
Defendant.

Date of Hearing: 6th August, 2013.
Date of Ruling: 6th August, 2013.

Mr. M. Tagini for the Claimant.
Mr. A. Radclyffe for the Defendant.

RULING ON PRELIMINERY ISSUE.

Faukona J: This case was set to proceed on trial today (6th August, 2013). The Court cannot proceed because Mr Radcliff has raised a preliminary issue. The issue is purely of law.

2. There is no dispute that the Claimant is a registered owner of Fixed Term Estate in PN 191-063-001. There is also no dispute that the Defendant is the registered owner in Parcel Nos. 191-023-131, 191-023-134 and 191-023-135/2 on which it has constructed the Hyundai Hall.

3. The crux of the claim is damages for trespass in which the Claimant says that the Defendant encroached onto its land.

4. It would appear the Counsels have agreed that the major issue is the boundary between the lands own by the parties. That clearly indicates that the lands own by the parties are adjacent to each other.

5. Having identified the boundary is the major issue, Mr Radcliff submits by referring to S. 97 of the Land and Titles Act. That reads, "where any uncertainty or dispute arises as to the position of any boundary the Registrar, on the application of any interested party... determine and indicate the position of the uncertain or disputed boundary based on relevant evidence. And by subsection (4) no Court shall entertain any action relating to a dispute unless the boundaries have been determined by the Registrar.

6. Dr. Tagini by his letter of 28th February, 2011, had written to the Registrar. That letter was indeed an application to invoke the powers of the Registrar. The Deputy Registrar Mr Pelu responded in his letter dated 6th April, 2011 and said he was not the Registrar of titles or Acting Registrar of Titles so as to exercise quasi-judicial power of the Registrar.

7. Mr Radcliff further submits referring to Section 28 (1) of the Interpretation and General Provisions Act which states, where an Act confers power or imposes a duty, the power may be exercised or the duty be performed from time to time. By subsection (2) states where any Act confers power or imposes a duty on the holder of any public office, then the power may be exercised and duty performed by the holder.

8. Mr Pelu is the Acting Registrar for many years now, perhaps longer than anyone else in the Public Service. He has been exercising all other powers in dealing with the registry. It's not for him to hand pick which particular area he should exercise his powers. He can, as Section 97 applies to him equally.

9. Mr Tagini submits that the preliminary issue is in the context of law and has nothing much to say. However, he played his part by writing a letter to the Registrar to exercise his powers and perform his duty.

10. Having heard the submissions, it is a clear case in law, which the Registrar ought to exercise his powers and determine the boundary between the parties as a prerequisite, before the Court can decide the claim if it is required in a later date.

Orders:

1. That the Registrar of Titles (acting) Mr Pelu to exercise his powers conferred upon him by S-97 of land and Titles Act to determine the boundary between the parties as a prerequisite.

2. The proceedings are stayed generally with liberty to apply on 7 days notice.

3. Cost in the Cause.

The Court.