PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Solomon Islands
You are here:  PacLII >> Databases >> High Court of Solomon Islands >> 2020 >> [2020] SBHC 108

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Solomon Motors Ltd v JQY Enterprise Ltd [2020] SBHC 108; HCSI-CRC 468 of 2017 (22 May 2020)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Solomon Motors Ltd v JQY Enterprise Ltd


Citation:


Date of decision:
22 May 2020


Parties:
Solomon Motors Limited v JQY Enterprise Limited, Vincent Kurilau, Commissioner of Lands, Registrar of Titles


Date of hearing:
2 September 2019 (Closing Written Submission-Claimant’s Reply)


Court file number(s):
468 of 2017


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Keniapisia; PJ


On appeal from:


Order:
33.1 The original acquisition and registration of the PE in PN 5, is hereby cancelled, subject to 33.3
33.2 The subsequent registration of the PE in PN 9, by mutation, from the original PE in PN 5 is also hereby cancelled
33.3 The original acquisition and registration of the PE in PN 5 is to be brought to a proper conclusion in line with the requirements of Section 69 (b) (i), (ii), (iii) and (iv) of the LTA – Division 1 – Part V
33.4 If for any reason, legal or otherwise, orders in 33.3 is not practical to implement, then the whole registration of the PE in PN 5 will be cancelled outright
33.5 No order on cost, because Attorney General admitted to the problem at hand


Representation:
Mr. A. Radclyffe for the Claimant
Mr. L. Kwaiga for the 1st Defendant
Mr. S. Tabo for the 2nd Defendant
Mr. D. Damilea for the 3rd and 4th Defendants


Catchwords:



Words and phrases:


Legislation cited:
Land and Titles Act [cap 133] Division 1 part V, S.229 (1), Division 1 S. 60-70 part V, Division 1 S.60 part V, 62 (a), S.62 (b), S. 63, S.64, S.65, S.66 (1), S.67 and 68, S.68 1(a), S. 69 (b) (i), (ii) (iii) and (iv), S. 69 (b) (i)-(iv)


Cases cited:
Hiva v Mindu [2009]SBCA 22, SMM Solomon Ltd v Axiom KB Ltd[2016] SBCA 1, Kenilorea v Governor General [2004] SBHC 80, Gatu v Solomon Island Electricity Authority [1998] SBHC 72, Billy v Daokolia [1995] SBCA 5

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 468 of 2017


BETWEEN


SOLOMON MOTORS LIMITED
Clamant


AND:


JQY ENTERPRISE LIMITED
First Defendant


AND:


VINCENT KURILAU
Second Defendant


AND:


COMMISSIONER OF LANDS
Third Defendant


AND:


REGISTRAR OF TITLES
Fourth Defendant


Date of Hearing: 2 September 2019 (Closing Submissions-Claimant’s Reply)
Date of Judgment: 22 May 2020


Mr. A. Radclyffe for the Claimant
Mr. L. Kwaiga for the 1st Defendant
Mr. S. Tabo for the 2nd Defendant
Mr. D. Damilea for the 3rd and 4th Defendant

JUDGMENT

Introduction

  1. Trial convened on 6/04/2019. Counsel Radclyffe, gave notice to cross – examine Mr. Limopu. Mr. Limopu gave sworn statement (ss) evidence for 2nd defendant. Mr. Limopu was not in court. Counsel Radclyffe did not want to adjourn the matter further. Counsel suggested that trial be on papers only. Submissions will mainly be on point of law[1]. Facts[2] are not considerably disputed. That there was an acquisition as complaint about in the amended claim. All other Counsel agreed to Mr. Radclyffe’s proposal.
  2. Counsel were to file written submissions. Court was to check back for written submissions in 2 weeks. And to decide whether closing oral submission was necessary or to proceed with decision. Matter went into hiding. Written submissions were filed, save, for the Attorney General. Nevertheless, Attorney General’s defence[3], admitted to the amended claim filed on 25/05/2018.
  3. Claimant’s original claim was filed on 6/10/2017. Original claim was against the 1st defendant (JQY) only. Original claim seeks the reliefs of damages for nuisance and permanent injunction against JQY, not to reclaim[4] the land in front of its property. And to restore the fore shore and sea bed in front of JQY’s land.
  4. Claimant (Solomon Motors) filed an amended claim on 25/05/2018, after trial of the original claim was aborted on 6/04/2019. Claimant discovered at aborted trial, about the lease JQY entered into with a third party (2nd defendant – Mr. Kurilau). Solomon Motors sought amendment to the original claim to pull in new parties (2nd – 4th defendants). The amended claim still retains reliefs for nuisance and permanent injunction. But has now placed great emphasis on cancellation of the parcel, JQY holds a lease over, from Mr. Kurilau.
  5. Solomon Motors is owner of Fixed Term Estate (“FTE”) in Parcel Number (“PN”) 191-003-6 (“PN 6”) situated along Tandai High Way, West Honiara, near to White River. JQY owns the FTE in PN 191-003-197 (“PN 197”), adjoining Solomon Motor’s parcel. Both parcels have sea frontage, extending out into the Iron bottom sound deep-sea.
  6. Mr. Kurilau’s parcel is the Perpetual Estate (“PE”) in P/N 191-082-9 (“PN 9”). This is an area of the fore shore and sea bed containing 0.2750 hectares and situated directly in front of JQY’s PN 197. And is very close to Solomon Motor’s parcel, PN 6. Mr. Kurilau was registered as PE owner of PN 9, on or around 20/11/2017[5] (will return to how this registration came about). Mr. Kurilau leased his PE in PN 9 to JQY on 23/11/2017[6]. JQY wanted to develop PN 9. Solomon Motors is weary that any development of PN 9, will have an adverse impact or cause nuisance to its property and business, next door.
  7. So in the amended claim, Solomon Motors, in addition to nuisance, also seek rectification of the PE in PN 9, saying, Mr. Kurilau, Commissioner of Lands and Registrar of Titles, should not have acquired and registered the PE in PN 9. And that the acquisition and registration of the PE in PN 9, was not carried out in accordance with Division 1 - Part V of the Land and Titles Act (Cap 133), hereafter referred to as the “LTA”. Solomon Motors assert that the acquisition and registration was obtained by mistake. And mistake is a ground for rectification under Section 229 (1) of LTA. So Court should rectify PN 9.

Issues

  1. The main issue is: “Whether the acquisition and registration of the PE in PN 9, was obtained by mistake?” And if so, can the Court order rectification? The other issue is: “Whether or not JQY is causing nuisance to Solomon Motors, interfering with latter’s enjoyment and use of its property?” A further issue is in paragraph 23 below.

Where is acquisition and registration of the PE in PN 9, coming from?

  1. Evidence exposed that the registration of the PE in PN 9, was procured from a mutation to a much larger original PE plot[7]. The much larger original PE plot was initially acquired and registered under Mr. Limopu’s acquisition. Mr. Limopu’s acquisition commenced in year 2012, with his appointment on 1/03/2012[8]. The Commissioner of Lands (“COL”), put out a Public Notice, on the 1/03/2012 and described the land to be acquired as: -
“The entire stretch of maritime customary land beyond high water mark from Honiara Western North Coastal City boundary to the Eastern North City boundary and extends out to the main border between Central Islands and Guadalcanal Provinces or as far out as allowed by relevant laws of Solomon Islands. Better described as Town Land (HONIARA) ORDER 1973, LEGAL NOTICE 83/73, 44/82 PLAN NO 1981 (See also attached list)”[9]
  1. The purpose of acquiring the much larger original PE plot, is for national interest for Honiara International sea port, as it is within the declared international port of Honiara, and hence is of national and international interest (See Public Notice, Page 57, Court Book – just above Mr. Silva Dunge’s signature and official COL stamp). Additionally, at Page 60, overleaf, of Court Book – under clause 4 (f), of the Agreement for Lease, we also see the purpose of the acquisition was to acquire the land for Honiara coastal and maritime activities.

What is the purpose of acquisition and registration of the “larger original PE plot” telling us – Purpose of the Acquisition?

  1. The purpose of the acquisition was to acquire the larger original customary land for public interests. The public purpose was for Honiara International Seaport and Honiara coastal and maritime activities. That larger original plot/land in custom is properly called Tandai and Kokomu Customary Lands, seafront and beyond High and Low water mark, Lunga Coastal in Guadalcanal Province. This is the whole of the “coastal boundary of Honiara City land boundary”. This is the customary land comprising the foreshore and seabed in front of the Honiara City land boundary, extending out into Iron Bottom Sound, as far, as law can permit, into the sea boundary of Central Islands Province. Can the Government possibly acquire the sea?
  2. So we are taken to understand that, Government acting through the COL, wish to acquire and lease Tandai and Kokomu Customary lands for a public purpose of: Honiara international sea port and Honiara coastal and maritime activities. By the Agreement, executed with the Lessors, and put out for public, prior to the actual acquisition hearing, we can precisely reach this conclusion.

Law to use to achieve COL’s purpose in the intended acquisition notice

  1. We read that Mr Limopu had entered into an Agreement for Lease (“Agreement”) with the purported land owners or Lessors of the original plot (customary land) to be acquired (Agreement, at Page 60 and over leaf of Court Book). Lessors were Savino Laucana, Vincent Kurilau and Renato Kavichau’u. So we discern that the law, the COL must use to accomplish its purpose is Division 1 – Sections 60 – 70 - Part V of LTA – Purchase or Lease of Customary Land. COL could have used Division 2 – compulsory acquisition, but chose to use Division 1. As such, under Division 1 - COL must acquire the original plot, lease it from the Lessors and take possession of the acquired land, so as to ensure the public wish or purpose is realized. And to pay premium or rentals to the Lessors. From the acquisition proceedings, Mr. Limopu will set out to identify any opposing claims from possible owners of the original plot (customary land to be acquired). Any opposing claims against the purported Lessors in the Agreement, put out to the public prior to acquisition. So the million-dollar question or issue is “Did the COL comply with the letter and intent of Division 1 – Sections 60 – 70 - Part V, of the LTA, in the whole acquisition process, of the original larger PE plot, from start to completion?”

Did COL comply with Division 1 – Part V of the LTA?

  1. As the Court of Appeal pronounced in Hiva[10] and SMM[11] cases, there is no general provision in the LTA allowing for the conversion of customary land into registered title. Part V[12] of the LTA is entitled “Purchase or Lease of Customary Land”. That part prescribes the procedure by which purchase or lease of customary land can take place.
  2. I will summarise the important requirements of Division 1 – Sections 60 – 70 - Part V of the LTA that are applicable to the facts of the 2012, Mr. Limopu acquisition: -
    1. A customary land can be leased or sold to the COL or any Provincial Assembly under Division 1 – Section 60 – Division 1 - Part V. Here, COL wish to acquire the original plot and to lease the same from the Lessors for purpose of Honiara international seaport, maritime and coastal activities (repeat paragraphs 10, 11 and 12).
    2. When COL wishes to lease or purchase customary land under Section 60, he shall appoint an Acquisition Officer (AO) in writing as his agent for the purpose of the acquisition – Section 61 (1) – Division 1 – Part V. Here, COL appointed Mr. Limopu, to be his agent in this acquisition, on the 1/03/2012 (paragraph 9).
    3. The AO, shall identify the boundary of the land to be acquired and to publish it publicly to bring to the notice of persons affected – Section 62 (a). Here, the boundary of the land to be acquired is described more fully in the public notice (repeat paragraph 9 above).
    4. AO to make a written agreement for the lease with persons who purport to be the owners or duly authorised representative of the owners of the land to be acquired for lease, prior to acquisition – Section 62 (b). Here the Agreement and the Lessors were prior known as discussed in paragraph 13.
    5. AO shall bring to the public eye, the notice of the Agreement under Section 62 (b). And to inform the public about arrangements for a public hearing, whereby the AO, will conduct enquiry to establish any opposition claims against the purported lessors in the Agreement – Section 63. From evidence we see the AO’s notice at Pages 62 and 63, of Court Book.
    6. AO conducts the actual public hearing – Section 64. Hearing was conducted because we see evidence of AO’s determination at Pages 65 – 69 of Court Book.
    7. AO record his determination from the hearing conducted. And send copy of determination to COL. And bring notice of his determination to public, especially the opposing claimants – Section 65. AO recorded his determination and brought it to the public. Repeat (vi) above.
    8. Any one aggrieved has 3 months to appeal the AO’s determination to Magistrates Court – Section 66 (1). There was no appeal or challenge to this acquisition.
    9. If no appeal or appeal is dealt with after 3 months, the COL may implement the Agreement or rescind the Agreement as the case may be – Sections 67 and 68. Because there was no appeal, the COL was duty bound to implement the Agreement under Section 68 1 (a) (See x and paragraph 16, next).
    10. The Agreement will be implemented in the following ways: (i) make a “vesting order” of the PE in the acquired land in the names of the Lessors; (ii) require the Lessors to execute a lease in favour of the COL, as per the terms of the Agreement; (iii) pay premium or rent as per the Agreement and (iv) take possession of the land – Section 69 (b) (i), (ii), (iii) and (iv). Agreement must be implemented under Section 69 (b), (i) – (iv), because evidence showed that COL wants to lease the acquired land, in Mr. Limopu’s acquisition (Repeat paragraphs 10, 11, 12 and 13).
  3. Closely examining the facts and evidence of this acquisition, it is very clear the acquisition deviated in a material way from what the law required, especially the completion part of the acquisition. There was no appeal. So COL should implement the Agreement under Section 69 (repeat paragraph 15 x). Instead of implementing the Agreement as per the requirements of Section 69 (b) (i) (ii) (iii) and (iv), the (i). COL vested the PE in the Lessors, but (ii). COL did not execute a lease with the determined Lessors, (iii). COL did not pay premium or rent to the Lessors and (iv). COL did not take possession of the land from the Lessors, for the intended public purpose. Instead the COL gave possession of the land to the Lessors (for private ownership), by registering the PE and giving the acquired original plot away to the surviving Lessors (Mr. Kurilau and Renato on 15/08/2017). The COL has deceived the interests of Honiara City. For the COL set out to acquire the original PE plot for Honiara international seaport, maritime and coastal activities, as per the purposes of the acquisition notice, put out to the public. So how will the Government achieve the purpose of the acquisition, now that ownership is in the private hands of the Lessors? What happened here is that, in the name of public purpose, the COL had expended public money, to acquire the larger original plot/land, so that a few private individuals and tribes could own what was acquired through public resources. This looked like a big trick, whether by design or default. So I find that Mr. Limopu’s whole acquisition, was made in violation of the requirements of Division 1 – Sections 60 - 70 - Part V, of the LTA. Attorney General admitted to this in its defence at paragraphs 8 and 9 (Page 10, of Court Book). Attorney General agreed that the acquisition of PN 9, should be declared null and void.

Consequences for Non-compliance

  1. In Hiva and SMM, Court of Appeal cases, where acquisition and registration failed to comply with the requirements of the law (Part V of LTA), Court can rectify the register by removing the registrations of the PEs vested in the names of the Lessors and to revert the land back to customary ownership. In Hiva case, Court of Appeal says “mistake is an error of law and extends to anything improperly done or omitted to be done”. And is a ground for Court to order rectification under Section 229 (1) of the LTA.
  2. The error of law at hand is, instead of vesting the PE in the Lessors and requiring the Lessors to execute a lease in favour of COL, for public purpose, the PE was registered in the names of the Lessors as private property. Evidence shows the PE, of the original acquired plot, I am talking about is the PE in PN 191-082-5 (“PN 5”[13]). The PE was registered in the names of two of the Lessors to the Agreement (Mr. Vincent Kurilau and Renato Kavichavu on 15th August 2017). By then the other Lessor, Mr. Savino Laucana was already a deceased (I take judicial notice).
  3. Subsequently, the PE in PN 5, underwent mutation, resulting in the registration of the PE under dispute herein (PN 9)[14]. It is error of law and is improper for COL, to acquire the whole of Honiara foreshore and seabed boundary and then to give it back to customary ownership (private ownership). What will that mean to Honiara City, Honiara public, Honiara international seaport, Honiara maritime and coastal activity interests? What will happen, if one day, we wake up and the PE holders (private individuals and tribes) block all ships from coming in to berth at the Point Cruz Wharf? We do not know how far into the sea, is the boundary of the PE titles, which these individuals and tribes have been given as a result of Mr. Limopu’s acquisition? All these seriously uncertain concerns and sentiments, go to show one thing: “The impropriety of the actions taken by the COL”. I should call this a sham (will return to this below). Hiva case called this: “anything improperly done or omitted to be done”. The COL used provisions of the LTA, in the pretext of Government interests, for public purpose, yet gave the original acquired plot and the subsequent mutated plot (PN 5 and PN 9 respectively) away to private ownership.

Does the claimant have “Locus Standi” and “Common Mistake”?

  1. Mr. Kurilau and JQY argue that Solomon Motors does not have standing to challenge Mr. Limopu’s initial land acquisition process. And that the time for appeal against the process has lapsed. Such argument overlooks that the amended claim is not an appeal against the acquisition process. The amended claim is one for rectification, nuisance and permanent restraining orders. And the amended claim pleaded that the root cause of the issues, claimant faced and the reliefs sought is the acquisition and registration of the PE in PN 9. Counsel Radclyffe submitted in reply to Counsel Tabo’s submission, that his client did not challenge the acquisition and registration of the PE in PN 5, because it did not have standing. But now that Counsel Tabo disclosed the said PE in PN 5 and made submissions on it, Counsel Radclyffe was entitled to submit that the PE in PN 5 should be rectified on the ground of mistake, under Section 229 (1) of the LTA. The said section relevantly stated:-
  2. The amended claim pleaded mistake in relation to the registration of the PE in PN 9. Evidence uncovered at trial shows that, PN 9 was a mutated plot from the originally acquired and registered PE plot in, PN 5. This became abundantly clear from Mr. Tabo’s lately disclosed evidence and written submission (repeat paragraph 20). What is manifestly exposed in evidence, to the Court, is that the registration of the PE in PN 9 was a direct result of the original acquisition and registration of the PE in PN 5. So collectively the acquisition and registration of PE in PN 5 and the registration of PE in PN 9 (by subsequent mutation) were both obtained by a common mistake. That common mistake had its origin in Mr. Limopu’s acquisition, which I found to be illegal in paragraphs 15 and 16 above. And Mr. Vincent Kurilau (owner of PN 9) was aware of the common mistake. Mr Vincent Kurilau was one of the Lessors, with whom COL entered into the Agreement, prior to going into the acquisition process. And one of the PE holders in the original PE in PN 5.
  3. Coming back to standing, Solomon Motors has sufficient interest to raise the issues it complained of in this Court. Its interests have been threatened or likely to be threatened by the developments, taking place or likely to take place on PN 9; especially the likely reclamation of the foreshore[15]. And the PE in PN 9, had inherited its share of the common mistake from the original acquisition and registration of the PE in PN 5. A person is said to have standing, if his own legal position in the facts of the case, can link him to the remedy or liability in the case[16]. Other cases say simply if he/she has sufficient interest[17], he/she will have standing. There is no doubt claimant has satisfied these requirements of locus standi, in relation to development of PN 9. And PN 9 is directly linked to PN 5 originally. So claimant would undoubtedly have standing in relation to both PEs, just like any other Honiara business house or individual, would have right to question why the whole of the foreshore of Honiara city boundary, was given into private individual or tribal interests, as opposed to public and national interest (international seaport and costal and maritime activities). The root cause of Solomon Motors problems was, the registration of both plots (PN 5 initially and PN 9 by mutation subsequently).
  4. Counsel Tabo, submitted that the issue for determination is: “Whether the 2012, Mr Limopu’s acquisition and registration of the Honiara shoreline boundary was done properly according to Division 1 – Part V of the LTA?[18] I agree with Counsel Tabo on this further issue. I can see that the registration of PN 9, is part of a much broader problem. Evidence shows that PN 9, was registered and born out from Mr. Limopu’s acquisition and registration of the PE in PN 5, after mutation. What happened was Mr. Limopu’s acquisition instigated in 2012, resulted in the registration of the PE in PN 5, in the names of the Lessors, in the Agreement, on 11th August 2017. And then the PE in PN 9 was mutated from the PE in PN 5 and registered on 23rd November 2017[19]. The PE in PN 5 was registered in the names of Vincent Kurilau and Renato Kavichavu on 11/08/2017[20]. Two months later through mutation, the PE in PN 9 was registered in Vincent Kurilau’s name. As I look closely at PN 5 and PN 9, in PN 5 the PE title holders were two of the Lessors in the Agreement (as trustees). With PN 9, there is no mention of trusteeship. So it implies that the PE in PN 9, is now owned by a private individual – Mr. Kurilau. The concern is: a land that was initially intended to be acquired for a public purpose (international seaport, maritime and coastal activities) is now in the hands of private individual person and tribes. This concern leads to the discussions below.

SHAMMING ACQUISITION

  1. Evidence in this case shows, though not pleaded by claimant, that the registration of PN 9 was directly linked to the shamming acquisition, COL instigated in 2012, with the appointment of Mr. Limopu. Shamming acquisition because, COL says in the acquisition notice that Government wished to acquire the subject customary land and to lease the same for purpose of Honiara International Seaport, Coastal and Maritime activities.
  2. If that was true, the PE should have been registered in the names of the Lessors and leased to the COL, from the Lessors, with payments for rentals and COL should have taken possession. Lessors should have been Savino Laucana, Vincent Kurilau and Renato Kavichavu. Instead COL gave the acquired PE straight to the Lessors. In other words, the customary land acquired by the COL, to be leased from the owners (Lessors) was given to the Lessors for private ownership and use. What will become of the public purpose, intended with the original acquisition notice[21], now that the land is registered in private hands – (PN 9, private individual person and PN 5 private individual tribes?) This is the broader issue not only for Solomon Motors, but for Honiara City, National Government and Honiara public.
  3. All of Honiara foreshore extending into Iron bottom sound, into Central Islands Province is under private ownership. COL failed to protect public interest for international sea port, coastal and maritime activities. What will happen if the custom owners assert their right to possession and enjoyment of the Honiara foreshore, to the exclusion of Honiara international seaport, coastal and maritime activities? All these shows the impropriety of the COL’s decision, to use public resources in the pretext of public purpose, for the benefit of private individuals and their tribes at the expense of the greater Honiara public, Solomon Islands and the world at large. For Honiara international seaport is the door way to the world, in terms of our international sea and ships transportation. Let me make some relevant regional comments. Other salt-water cities in the Pacific (Port Villa, Suva, Port Moresby and Nukualofa) they built long sea walls along their city foreshores. City residents can enjoy the oceanic resources like: good sea view, beautiful oceanic look outs, sea breezes, spaces for families to gather, sports people to do their exercises and even to hold swimming and canoe racing competitions. In Honiara city, we see the opposite. Foreshore is taken up by private owners and jammed with buildings. Public are denied the oceanic resources. Very sad. Very true. Very unwise decisions, like the one been exposed herein, leads to this sad state of affairs for our Honiara city foreshore.

Conclusion

  1. To answer the issue Counsel Tabo posed, the acquisition of PN 5, was not done according to the requirements of Division 1 – Part V of LTA. I also repeat paragraphs 15 and 16. Consequently the entire acquisition and registration of the PEs in both PN 5 and PN 9 are a sham. The impropriety in PN 5 extends onto PN 9, which was subsequently mutated from PN 5. Both registered parcels suffer from the same “sham” or “common mistake”, I dealt with herein.
  2. The case of SMM makes it plain clear that where COL wish to lease customary land, it must acquire the land under the requirements of Division 1 – Part V, of LTA. And must lease the acquired land from the determined trustees (Lessors in the Agreement, put out publicly prior to acquisition). The COL cannot acquire the land and give it away to private hands, under the requirements of Section 69 (1) (b) (i), (ii), (iii) and (v) of LTA – (repeat paragraphs 15 and 16 above).
  3. Indeed I can smell sting in the whole acquisition process. The sting will last a long time into the future. The sting is unhealthy to the national interest of having Honiara City, Honiara International seaport and Honiara Coastal and Maritime activities. Should I just ignore the sting? I can ignore it, if I do not have power to address the sting. In this case, I have power to amend the register under Section 229 (1) of the LTA. I will exercise that power to amend the register in respect of both PN 9 and PN 5. PN 9 had inherited its share of the broader common mistake occasioned in the acquisition and registration of the PE in PN 5.
  4. Can JQY benefit from the protection under Section 229 (2) of LTA, as bona fide purchaser without knowledge of the mistake? And now that JQY is in possession, not Solomon Motors? That argument will stand under Daokalia[22], had it not been for the bigger problem of acquisition and registration occasioned initially to the PE in PN 5. So when PN 5 goes, PN 9 must also dismantle. This Court has wide powers to make declarations, relating to any legal issue, that may arise during Court proceedings. In making declarations, Court must exercise proper discretion in the exercise of such wide powers. It is not surprising that every reliefs in any claim, must always include the standard wide relief for “...such further or other reliefs as the Court thinks fit.” Here, that standard wide relief, is pleaded in the amended claim, at paragraph 3 of the reliefs sought. And so I will cancel the registration of the PE in PN 5 and PE in PN 9, under that wide relief, issuing declarations, for rectification, as per orders in 33, below.
  5. The bona fide purchaser protection argument under Section 229 (2) of the LTA, does not apply here, because claimant is not asserting ownership of PN 9. Protection only applies where there is competing claim of ownership over a property like in the case of Daokalia and other rectification cases. Claimant is complaining about the mistake in registration of the PE in PN 9. And the likely problem, development of PN 9 will have on its property and business next door. Additionally, the owner of the PE in PN 9 is Mr. Kurilau. Mr. Kurilau is not in possession. Even JQY is not in possession of PN 9. For JQY is yet to develop PN 9. And there is no evidence, Mr. Kurilau acquired PN 9 for valuable consideration. Even in PN 5, there was no consideration in the Agreement. Mr. Kurilau contributed to the mistake, occasioned in the registration of the originally acquired PE in PN 5. For he was one of the Lessors named in the Agreement, for the initial acquisition proceedings. Being party to that initial acquisition, he then with full knowledge, benefited individually, by registering the PE in PN 9 in his own name, by mutation. Consequently, the registration of the PE in PN 9, would not be protected under Section 229 (2) of the LTA. For the owner of the PE in PN 9, (Mr. Kurilau), had full knowledge of the shamming initial acquisition (PN 5), which subsequently led to the registration of his own PE in PN 9. And Mr. Kurilau and JQY are not in possession of PN 9.
  6. Nuisance is not established at this stage, unless reclamation of PN 9 has taken off ground. No reclamation has started as yet. Nuisance is not established on the balance of probability. Accordingly, I refuse permanent injunction orders,
  7. The orders of the Court are:-

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

[1] Point of law is “Whether the acquisition and registration of the Perpetual Estate in PN 191-082-9 was made in violation of the requirements of Division 1 – Part V of Land and Tiles Act (Cap 133)”?
[2] Facts not disputed are: “There was acquisition and registration of the Perpetual Estate in PN 191-082-9, as confirmed in Mr. Limopu’s statement at Pages 52 – 75 of Court Book”.
[3] See Defense at Pages 9 - 10, of Court Book.
[4] Reclaim shoreline, as we see in Honiara, is when developers back fill with soil and solid materials, parts of the shoreline, to build houses, taking up portions of the shallow fore shore reefs.
[5] See Page 40, Court Book – For Mr. Kurilau’s PE title in PN 9.
[6] See Page 77, Court Book – For the Lease of PE in PN 9 from Mr. Kurilau to JQY.
[7] Statement by Mr. Limopu and the PE in PN 191- 082-5, Counsel Tabo disclosed at trial.
[8] Appointment letter is at Page 55 – 56 of Court Book.
[9] See Page 57 – 58, Court Book - Copy of Notice of the land to be acquired.
[10] Hiva v Mindu [2009] SBCA 22; Civil Appeal 13 of 2008 (23rd July 2009).
[11] SMM Solomon Limited v Axiom KB [2016] SBCA 1; Civil Appeal 34 of 2014 (21st March 2016).
[12] In the context of this acquisition/case, Division 1 – Section 60 – 70 - Part V - Purchase or Lease of Customary Land.
[13] Mr. Kurilau’s lawyer disclosed this PE very late and is attached to Counsel Tabo’s written submission.
[14] See paragraph 10 of Mr. Limopu statement at page 53 Court Book.
[15] Sworn Statement by Yang Jian Qing for JQY on approval to develop PN 9 – Pages 20 – 35, Court Book.
[16] Gatu v Solomon Islands Electricity Authority [1998] SBHC 72; HCSI – CC 59 of 1997 (11th May 1998).
[17] Kenilorea v Governor General [2004] SBHC 80; HC-CC 415 of 2004 (4th November 2004).
[18] Paragraphs 1 and 4 of Mr. Tabo’s written submission, read together.
[19] See Page 77 of Court Book – for PE in PN 9.
[20] See late disclosed PE in PN 5, attached to counsel Tabo’s written submission.
[21] Purposes were for Honiara international sea port (Page 57, Court Book) and for Honiara maritime and coastal activities (Page 60, overleaf – Clause 4 (f) of Agreement). Also repeat paragraph 10 above.
[22] Billy v Daokalia [1995] SBCA 5; CA-CAC 001 of 1995 (27th October 1995).

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2020/108.html