Taylor v Leni [2016] SBHC 176; HCSI-CC 253 of 2015 (11 October 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: GEORGE TAYLOR - Claimant

AND: JAMES LENI AND MODESTO BUIN - 1^st Defendant

ASIA PACIFIC INDUSTRY - 2^nd Defendant

DEVELOPMENT ENTERPRISE

Date of Hearing: 29 September 2016
Date of Judgment: 11 October 2016

Mr. A. Hou for claimant
Mr. S. Tabo for 1^st , 2^nd defendant

Brown J:

The claimant seek orders permanently restraining Logging operation over Perpetual Estate Parcel no. 019-001-9 in land in LR 712, Shortland Islands, Western Province following an ex parte order stopping logging given on the 24 June 2016.

By amended claim filed on the 23 September the claimants have sought to discontinue the application for a permanent injunction although continuing to seek this Court’s order that the defendants jointly pay one third of all royalty payments already received and all future proceeds to be received to the claimants. Since the existing legal relations between the parties has not changed, I propose to deal with the amended claim on the material filed and read by the parties in their respective cases.

The claimant represents members of the Silahanegana land holding group, who together with the registered trustees of the perpetual estate, are they say, beneficiaries entitled to share in the proceedings of the logging operations. To the time of the institution of proceedings, the claimants have not had payment from the 1^st or 2^nd defendant of any money representing, they say, their share of the moneys.

An amended application to dismiss the claim was filed on the 19 August 2016 seeking dismissal on the basis that the claimant was not entitled in custom to act as representative of the group or had not been mandated to institute proceedings and as well the registered proprietors effectively prevented such action.

I propose to proceed on the legal landholding basis for the Land and Titles Act is pleaded and affects the respective standing of the parties, irrespective of the claim to represent the landholding group. For the defence by statement of case, relied upon registration of the land (and consequently rights of the registered owners).

At the acquisition proceeding, the Silakanegana clan was the applicant when, following first registration of the land in 1971 to Joachim Soe and Mikaele Meibo Tanutamu, the present owners become registered by transmission on the 6 June 2013. A caveat by George Taylor had been entered on the Register of Lands on 1^st September 2005 but had lapsed in accordance with the provision of S. 223(1) of the Land and Titles Act after lodgment of the Transmission application in favour of the 1^st defendants.

It should be remembered that no trust instrument appears when a person is registered as owner of an estate in land (section 212).

The Register shows a Grant of Profit in favour of Asia Pacific Investment Development Ltd registered on the 9 July 2014. The grant was made by James Leni and Modesto Buin in the companies favour on that day.

An application by the company for a felling licence with respect to Parcel no. 019-009-9 was made in accordance with the Forestry Resources and Timber Utilization Act and licence No. A101440 issued, presumably in compliance with the Act affecting land claimed by George Taylor.

There is no need for me to detail the terms of the grant of profit executed and registered in accordance with S.167 of the Land Title Act for the claim, at paragraph 7 admitted the grant.

“On 9 July 2014, the 1^st defendant executed a grant of profit in favour of the 2^nd defendant, granting profit to the land here in, to it”.

By virtue of S. 110 the right of an owner of a registered interest shall be a right not liable to be defeated (except as provided by this Act) provided nothing in the section shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee. Pursuing beneficiaries’ rights under actual or implied trusts is a matter for customary forums and is not justiciable in the High Court in the first instance.

The Claimants by their statement of case plead their right as customary members of the Silakanegana land holding group. The claimant’s plea to stop logging and to a share of royalty payment is in two part. Notwithstanding fact of an ex parte injunction, the owner rights to deal with the land cannot be affected or subject to injunctive order unless in accordance with S.218 of the Land and Titles Act. Such is not the case here.

The Category A Claim is primary based on a claim to customary ownership of land which is now admitted to be registered land subject to the provisions of the Act.

The ex parte interlocutory in junction must be discharged.

The claim for a share of the royalties is a claim for money due by distributive justice in custom if available. The proceedings are struck out in accordance with R.9.75 as no reasonable cause of action is shown.

The undertaking as to damages is extant and may be brought back to this court if no settlement can be reached in relation to the claim for distributive justice in custom, offset by the loss, if any caused by the ex parte injunctive order to the defendant. The defendant shall have cost of these proceeding from the claimant to be assessed, agreed or taxed.

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BROWN J