Lomulo v Amoi [2008] SBHC 8; HCSI-CC 332 of 2007 (13 February 2008)

ROLLENS REBI & JAMES PULEIPU
Representing themselves and -
Other Deceased Trustees
2nd Defendants

Date of Hearing: 30 October 2007
Date of Decision: 13 February 2008

Mr Tegavota for the 1st Plaintiff
Mr Kingmele for the 2nd Plaintiff
Mr Ashley for the 1st Defendant
Mr Apaniai for 2nd Defendants

1	This dispute relates to land at Vanguna Island, Marovo, Western Province, and in particular, parcel No., 143-0120-1 (Davala Land).
2	In his statement of claim, the Plaintiff, Ben Lomulo, representing the Busimati tribe seeks to rectify the land register by removal of the second defendants, Rollens Rebi and James Puleipu, as the registered landowners. The tribe claims they are the rightful owners and seek a declaration that the land is customary land.
3	Parcel 143-0120-1 was the subject of acquisition proceedings in 1974, and at that time the second defendants, Rollens Rebi and James Puleipu, were held to be owners of that land.
4	However, the actual acquisition of the land by the Government did not in fact occur, and so Rollens Rebi and James Puleipu were not then registered as the owners of that land (which would have been necessary had the acquisition by the Government proceeded). They were not in fact so registered until 10 August 2007, when they were granted a perpetual estate in the land.
5	Hence during the period 1974 until August 2007, the land remained as customary land.
6	During that period, namely in October 2005, the plaintiff, Ben Lomulo was determined as the person entitled to grant timber rights over the land. This was in a ruling of the Western Customary Land Appeal Court on 17 October 2005. That ruling has been unsuccessfully challenged by the first defendant in other High Court proceedings.
7	In January 2006 Ben Lomulo entered into a timber rights agreement with a timber company in respect of the land. That company then obtained a felling licence dated 1 March 2006. In a logging agreement dated 2 March 2006, that timber company granted the second plaintiff, Omex Limited, the right to fell and market the timber (Omex Limited was joined in this proceeding as a second plaintiff on 30 October 2007).
8	It is understood that logging was not yet taken placed in respect of the parcel in question, and that this has been at times physically prevented by persons associated with the first and second defendants.
9	The second defendants, along with the first defendant who has an identity of interest, seek a continuation of the restraining orders preventing logging (originally made ex parte on 16 October 2007) until the Court can hear and determine the plaintiff’s claim for rectification of the register and for a declaration that the land remains customary land.
10	Those defendants based their claims for restraining orders on the fact that the second defendants are now the registered owners of the parcel in question, and have been since 10 August 2007. They claim that such registration in effect supersedes the October 2005 ruling of the Customary Land Appeal Court that the plaintiff, Ben Lomulo, was the person entitled to grant timber rights over the parcel in question.
11	The first and second defendants contend that the timber agreement and felling licence, and its assignment to the second plaintiff, Omex Limited, are now ineffectual because of the registration.
12	The first and second defendants rely on s.181 of the Land and Titles Act, which entitles the registered owner of land to grant a "profit" in respect of the land by a registrable instrument in the prescribed form. It is clear from the definition in the Act that "profit" includes timber rights. The first and second defendants say that without such a grant a licensee has no authority to enter the land and carry out logging operations.
13	The first plaintiff opposes the continuation of the restraining orders, arguing that the rights bestowed on him in relation to the timber survive the registration, which occurred much later in time and, it is said, in dubious circumstances. He also claims that there was material non-disclosure to the Court at the stage the ex parte orders were obtained on 16 October 2007. This is as to other High Court proceedings 192/06 and 495/06, in which some of the defendants were involved and relating to part of the parcel of land in question in this proceeding. The second plaintiff supports these contentions.
14	I do not consider there was material non-disclosure. In paragraph 4 of the first defendant’s affidavit dated 19 September 2007 he makes specific reference to those High Court proceedings, and the fact that orders were made against him by the Court on those occasions. While it would have been prudent for him to have elaborated further, I consider there was sufficient disclosure and that there was no intention to mislead the Court.
15	As to those other High Court proceedings, the rulings of which predated the registration of the land in favour of the second defendants, the central issue there was the validity of the timber rights agreements. The central issue in this case is whether the subsequent registration of the land was valid, and if so the effect if anything this has on the previous rights conferred as to timber.
16	It is well known that the registration can only be cancelled, and rectification ordered, if there is found to be mistake or fraud. Whether that has occurred here is impossible to determine on the affidavit evidence. A full trial will be necessary to resolve that matter.
17	In the meantime, as the registered owners of the land who are not prepared to recognize any rights asserted by the plaintiffs or to grant them any "profit", the second defendants have a tenable argument that any unregistered rights in respect of the land are displaced by the registration i.e superseded by it.
18	In my view, there are serious issues to be tried in this case which cannot be resolved without trial. I also consider that the balance of convenience favours the status quo, namely the restraining of persons from entering and logging the land until the matter is properly resolved. Damages would not compensate for the losses which could occur should logging be permitted now. Immeasurable and irreversible harm to the environment and to the life of the local people would be a distinct possibility.
19	The restraining orders will remain in place until the trial of this matter. The parties are at liberty to request the matter be placed in a call-over list for trial as soon as possible.
20	For these same reasons, I decline to strike out the plaintiff’s statement of claim.
21	Costs will be in the cause.

High Court of Solomon Islands

Lomulo v Amoi [2008] SBHC 8; HCSI-CC 332 of 2007 (13 February 2008)