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Samlimsan (SI) Ltd v Bato [2017] SBHC 43; HCSI-CC 548 of 2015 (8 December 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 548 of 2015

BETWEEN: SAMLIMSAN (SI) LIMITED - Claimant/Respondent

AND: DONALD BATO & VICK PAULSEN - First Defendants/Applicant

AND: PARI DEVELOPMENT COMPANY LIMITED - Second Defendant/Applicant

CROSS CLAIM

BETWEEN: PARI DEVELOPMENT COMPANY LIMITED- Cross-First Claimant

AND: DONALD BATO & VICK PAULSEN - Cross-Second Claimant

AND: THE ATTORNEY GENERAL - Cross-First Defendant
(Representing Registrar of Titles &
Commissioner of Lands)

AND: SAMLIMSAN (SI) LIMITED - Cross-Second Defendant

Date of Ruling: 8 December 2017

Mr. Marahare D for First & Second Defendants/Applicant
Mr. Rano W for Claimant/Respondent

RULING

Maina PJ:

Introduction

This is an application to vary the injunctive orders of 4^th November 2015. The injunctive orders restrained the First and Second Defendant their servants, agents or otherwise from entering Fixed Estate in Parcel no. 098-009-33 be and interfering with the Claimant’s work carried out on the land and from causing any disturbance until furthers orders.

The Applicant seeks to extend and or by varying the order of 4^th November 2015 to include the claimant not to conduct any development or work until the substantive issues of ownership of the land is sorted out under this case.

Brief Background

The Claimant (who is the Cross-Second Defendant in the Cross claim by the Applicant) claim ownership of Fixed Estate in Parcel no. 098-009-33. And Claimant filed a claim seeking an order of the court to permanently restraining the First and Second Defendant/Applicant in this application from interfering with its works on the property or Fixed Estate in Parcel no. 098-009-33.

On 4^th November 2015 by an ex parte hearing an interim order was granted to the Claimant restraining the First and Second Defendant from entering Fixed Estate in Parcel no. 098-009-33 and interfering with the Claimant’s work carried out on the land.

On 10^th December 2015 the First and Second Defendant applied for an order to dismiss the claim and consequently the interim orders of 4^th November 2015. But the application was withdrawn on 1^st June 2016.

On 31^st January 2017 the Defendants filed a Defence on the Category A: Claim of the Claimant. The Defence states that the Fixed Estate in Parcel no. 098-009-33 was reverted back to the Commissioner of Lands.

And on the same date the First and Second Defendant also filed a Cross claim, among others seeking the declaratory orders that their grant of profit that was removed from Parcel no. 098-009-33 amounts to overriding interest under section 114 (a) of the Lands and Titles Act (Cap 113). It also seeks an order to direct reinstatement in the relevant register in respect to the Parcel no. 098-009-33 and grant of profit to them.

Defendants claimed this Parcel no. 098-009-33 was within or part of the land they have the grant of profit. And it is a piece of land in the Parcel no. 098-009-40 which the Defendant has a grant of profit.

On 24^th February 2017 the Claimant filed a defence on the cross claim denying the claim by the Defendants in the Cross claim. The grant of profit claim by the Defendants was not registered; hence, there cannot be any encumbrances presumed or subsisting.

Also on 24^th February 2017 the Claimant replied to the Defendant’s defences claiming still the owner of Fixed Estate in Parcel no. 098-009-33. The Registrar fail to reinstate the Claimant as owner in the Registrar following the consent order entered in Civil Claim Case no. 628 of 2016 on 20^th April 2016. And the Parcel no. 098-009-40 is still own by Commissioner of Land and grant of profit remains with that parcel.

Issues

Amidst this situation or circumstances of the parties whether it is proper to vary orders of the court on 4^th November 2015 to extend or to also apply to the Claimant until further orders of the court.

The Court

The fact shows that the parties have some interest in both or either the Parcels no. 098-009-33 and Parcels no. 098-009-40 but currently with no fixed term titles. Among others that raises serious issues to be tried in the trial. There is also issue relate to the acts of the Commissioner of Land on these parcels of land.

Both parties have assert interests in the concerned parcels of the land but at this juncture the Register does not bear any of the parties as fixed term owners. For Claimant it is subject to consent order entered in Civil Claim Case no. 628 of 2016 on 20^th April 2016, but that had not been executed. And there are issues for trial in this matter.

With the current circumstances of this matter it is my view and proper that the interim of 4^th November 2015 be varied to apply to both parties until the substantive issues is determined by the court.

ORDER

1. The interim orders of 4^th November 2015 is now varied,
   
2. The Claimant/Second Defendant in the Cross-Claim and First and Second Defendant/Claimants in the Cross-Claim/Applicant their servants, agents or are restrained to conduct any development or work on Parcel no. 098-009-33 and Parcel no. 098-009-40on until further orders of the court,
   
3. All parties are also restrained from disturbing access or for the purpose of looking after the party’s properties at the respective area or location they are currently occupying until further orders of the court,
   
4. Matter for mention on 31^st January 2018 and;
   
5. Cost in the cause.
   

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge