HIGH COURT OF SO ISLANDS
Civil Case No. 368 of 1999
MAXWELL SIMIKERA
HERRICK RAGOSO AND OTHERS,<
COMMISSIONER OF LANDS AND REGISTRAR OF TITLES
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High Court of Solomon Islands
Before: F.O. Kabui, J
Civil Case No. 368 of 1999
Hearing: 17th April, 2001
Ruling: 19th April, 2001
G. Suri for the Plaintiff
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A. Nori for the 1st Defendants
J. Keniapisia for the Attorney General
RULING
(Kabui, J):span lang="EN-GB"> By Notice of
Motion filed on 13th March 2001, the PlainPlaintiff has asked the
Court for the following orders �
1. &nbssp;&nnsp;&&nsp; Lsp; Leave be granted to lhe Plaintiff to
further amend his Statement of Claim.
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and
Others Civil Case No. 232 of 1999 be continued to be so
restrained until the final determination of this case.
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Costs ofincofincid to tpplic be i causpan>
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There are two cases currently in the High Court about
disputes of ownership of Mbava Island in the Western Province. The first
is
between Marlon Kuve and Herrick Ragoso and Others (Civil Case No.
232/99). Marlon Kuve claims that he and others are the true trustees of
Mbava Island tribe and should
have been the registered trustees of Parcel
No. 079-006-4 on Mbava Island. He therefore sought an injunction against
Herrick Ragoso and Others restraining them from receiving moneys from the
logging operation being carried out on Mbava Island.
Awich, J. granted that
injunction on 16th August, 1999. The term of that injunction was that 7% of
the 45% receivable
by the 1st and 2nd Defendants be retained for the benefit
of the Mbava Tribe. The second is this case, between Maxwell Simikera
and
the same Defendants. (Civil Case No. 368/99). Maxwell Simikera claims he
represents the Sisoro (Zimbo) tribe of Mbava
Island and should have been
registered as owners of Parcel No. 079-006-2/3/4 on Mbava Island on the
ground that he represents
the original owners of Mbava Island. He seeks from
the Court an order for rectification of the register on the ground of fraud
or mistake.
Leave to Amend the Statement of Claim
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Parcel No. 079-006-4 on Mbava Island, Vella La Vella, in
the Western Province, was transferred t
1st Defendants on 5th
February, 1998 as joint owners. It was a transfer of perpetual estate from
the Commissioner of Lands to the 1st
Defendants effected on that same date. The registration of that
transfer was also effected on 5th February, 1998. The Plaintiff
is already challenging the legality of this transfer in this case by
applying for the rectification
of the register in his favour on the ground
of fraud or mistake. He now seeks leave to further amend his Statement of
Claim to include claims for damages for trespass to land and conversion of
trees. He bases his claims upon the premise that
this tribe were the
original owners of Mbava Island before registration and still are the
original owners. In my view,
the Plaintiffs claims are misconceived. Parcel
No. 079-006-2/3/4 is registered land. It is not customary land. It has
ceased to be customary land long ago. It may well be that the Plaintiffs
tribe were the original owners by custom. That would
not change the present
legal status of Parcel No. 079-006-2/3/4. The hope that one day, the
Plaintiffs tribe will be
declared the original owners of Mbava island, is
only a hope. It is a hope that cannot be realized until the Government has
put in place the legal machinery for the determination of claims of original
ownership regarding present registered lands
formerly owned by Solomon
Islanders in the early days of British colonization of this country. I do
not think there can
be a cause of action in trespass or conversion based
upon facts yet to be established as true facts upon which any cause of
action can arise. My remarks in my ruling of 16th August, 2000
regarding the Plaintiff's right to establish his tribe's rights to original
ownership of Mbava Island were
to recognise the fact that there is still
Government standing policy allowing, original customary ownership to be
re-established
in the appropriate forum yet to be designated by Parliament.
There is so far no legislation passed by Parliament to allow the
current
Local Court system to penetrate the seal of registration
in order to identify who are the current
descendants of the original owners of any
land already acquired and registered in
the name of the Commissioner of Lands. My remarks were not meant to generate
further
cause of action by the Plaintiff. I would refuse leave sought by the
Plaintiff. This being the case, I would also refuse to
make the order sought
in 2 of the Plaintiffs Notice of Motion. That is to say, there is no basis
for me to grant the
order sought. There is a difference. In the
Marlon Kuve v Herrick Ragoso and Others
(Civil Case No. 232/99), the Plaintiff is
claiming priority over the Defendants as the trustees, he and his followers
being also members of the Mbava tribe as stated in a Statutory Declaration
dated 30th
April, 1987. There was an arborted attempt to execute a transfer to that
effect on 30th April, 1987. Whereas in the
Maxwell Simikera v Herrick Ragoso and Others
(Civil Case No.
368/99), the Plaintiff is seeking the rectification of the register, on the
ground of fraud or mistake. There
can be no ground for seeking an injunctive
order against the Defendants on the basis of trespass to Parcel No.
079-006-2/3/4
and conversion of trees thereon. There is no evidence as yet
that they own Parcel No. 079-006-2/3/4 in custom as the original
owners in
line with the standing Government policy on the matter. In the result, I
refuse the application with costs.
In my view, this application is
unnecessary and should not have been brought to Court in the first place.
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The
11st
Defendant�s Summons
1. &nbbsp; ;&sp;; Leave bn gratoed to the Fihe First Defendants
to re-amend the
b>  &nbs; &nbbsp;&&nbp; &nsp;
< Amended Statement of Defeere herein; and
>
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<2. &nbssp;&nnbsp;&nsp; &nsp; The Plainto pay pay costscosts occasioned by
this application.
nbsp;
This application is being
supported by an affidavit filed by Mr. Nori on 13th March, 2001.
The Amended Defence was filed on 26th October, 2000. Counsel for
the 1st Defendants told me that he would wish to place emphasis
again on the question of time limitation imposed by an Act
of Parliament in view
of the Plaintiff's refusal to answer interrogatories. I have, read Exhibits
�AN2� and �AN3� attached
to Mr. Nori�s affidavit referred to above. I feel
that leave should be granted to the 1st Defendants to amend the
Amended Defence as they deem fit. I do so under Order 30, rule 6 of the High
Court (Civil Procedure)
Rules 1964 of (the High Court Rules). Rules 7 of
this Order of the Court of the High Court Rules would apply automatically.
That is to say, I have not imposed any time limit for less then 14 days.
Cost be in the Cause.
<
F.O. Kabui
Judge
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