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Solomon Imports and Export Ltd v Onika [2024] SBHC 186; HCSI-CC 102 of 2014 (29 July 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 102 of 2014

BETWEEN:

SOLOMON IMPORTS AND EXPORT LTD
Claimant.

AND:

HONORABLE JOSEPH ONIKA
(Sued in his capacity as Minister of the Crown).
First Defendant

AND:

DEPUTY REGISTRAR OF TITLES
Second Defendant.

AND:

ATTORNEY GENERAL
Third Defendant.

AND:

J. J LIMITTED
Fourth Defendant.

AND:

TOP TIMBER COMPANY LIMITED
Fifth Defendant.

Civil Case No. 531 of 2016

BETWEEN:

SOLOMON IMPORTS AND EXPORTS LTD
Claimant.

AND:

TOP TIMBER COMPANY LIMITED
First Defendant.

AND:

WONG CHEE KONG JOHN
Second Defendant.

AND:

ATTORNEY GENERAL
Third Defendant.

Dates of Hearing: 28^th September 2021, 6^th, 7^th 8^th March 2023, and 2^nd August 2023.
Date of Judgment: 29^th July 2024.

Mr. G. Suri for the Claimants in Civil Case NO. 102 of 2014 and for Claimant in Civil Case No. 531 of 2016.
Mr. J. Taupongi for the 5th Defendant in Civil Case No. 102 of 2014 and for 1st and 2nd Defendant in Civil Case No. 531 of 2016.
Mr. Chris Hapa for the 4th Defendant in Civil Case No. 102 of 2014.
The Solicitor General representing 2nd and 3rd Defendants in CC. 102 of 2014, and 3rd Defendant in CC. 531 of 2016. However, Solicitor General decided not to participate.

JUDGMENT

Faukona DCJ:
Introduction.

1. There are two cause of actions consolidated by an order of Court. They concern a fixed term estate in PN: 192-010-262 located at Ranadi coast line or there about. The two cases are the most complex cases I ever preside over. There are a lot of issues and the Counsels have not mediated the issues at least to reduce to a comprehensive level. There are a lot repetitions and references in the submissions. The Claimant has file three submission volumes, closing submissions, further submissions and summary submissions whilst the three defendants one each.
2. The cause of action in CC. 102 of 2014 is a judicial review claim premised on a direction given by the Minister of Lands to the Deputy Registrar of Titles, and the de-registration of that parcel which consequently cancelled the fixed term estate in the name of the Claimant.
3. The reliefs sought are declarations and quashing orders which would, if made, declare the Crown action wrong and restore the Claimant’s title to the disputed parcel. The claim also seeks consequential reliefs against the 3^rd and 4^th Defendants for damages as a result of encroachment.
4. The 4^th Defendant has made a counter claim in CC 102 of 2014. The reliefs sought include rectification of the disputed parcel (to cancel it altogether) and damages for destruction caused by dangerous thing escaping from that land.
5. The action pleaded by Top Timber in the counterclaim was for right of way, right of occupier, legitimate expectation, equitable interest, mistake and fraud, breach of duty of care, financial loss, business loss and expenses.
6. In Civil Case No. 531 of 2016, the claimant sought damages for trespass, eviction and possession. The reliefs sought are eviction from PN.192-010-262, taking possession of the land, permanent injunction injuncting the 1st and 2^nd Defendants from entering, birthing, occupying, using and restitution of SBD$6,303,000.00 for occupation, or alternatively for damages for trespass to be assessed and business loss.
7. The 1^st and 2^nd defendant also file counterclaim in CC531 of 2016 for fraud and mistake, breach of duty of care and losses. The reliefs sought are:
   1. Damages for breach of common law duty of care SBD 2,556,000.00
   2. Damages for additional loss of business and costs SBD 10,556,000.00
   3. Cancellation of PE in PN. 192-010-262 on the ground of mistake and fraud
   4. Cancellation of FTE in PN. 192-010-262 on the ground of mistake and fraud
8. Those reliefs depend on the Claimant’s succession in CC 102 of 2014. Any determination on the Claimant’s claim for judicial review will affect the reliefs in CC 531 of 2016
9. The 1^st and 2nd Defendants also filed a counter-claim against the Claimant including orders directed to the Crown. Against the Crown the counter-claim seeks rectification of the Claimant’s title to the disputed land registered in July 2016.
10. Counsels have almost equally correlate land transformation through various land transactions during the post and colonial era and at last in the independence state of Solomon Islands.
11. It would also be noted that the Claimant has sourced its point of commencement since 1886 from the pre-colonial time whilst the defendants chose to commence their case as from 2004.
12. In any event, for the purpose of understanding the background history on land development, from pre-colonial era; at the same time provide wider perspective for good learning about history on land acquisition upon which Honiara city finally located.

Development of Land Legislation in Solomon Islands.

13. These lawsuits have evolved touching on the history and the Colonial land laws. To appreciate the transitions, it is crucially important to set out the development of land legislations in Solomon Islands which directly impacted ownership of foreshore and seabed from Colonial era to this date.
14. The first set of laws relating to land when British Solomon Islands Protectorate (BSIP) established were;
15. 1. Small Islands Native Regulation 1896 (No. 3 of 1896).
    2. Land Regulation 1896 (No.4 of 1896).
    3. Waste Lands Regulation 1900 (No.1 of 1900).
    4. Waste Lands Regulation 1901 (No.1 of 1901).
    5. Waste Land Regulation 1904 (No. 1 of 1904).
16. In 1914, land law was reduced to just one Regulation, the Land Regulation 1914 (No. 3 of 1914) which repealed the earlier Regulations.
17. Between 1915 and 1923 the Land Regulation 1914 remain the principal land legislation although new and separate Regulations were enacted to govern land survey, land registration and Crown acquisition.
18. In 1919, a Lands Commission was established to inquire into claims by native Solomon Islanders over customary land leased by foreigners, alienated as waste lands, and lease by Colonial administration. The first Commissioner appointed was Captain G.G Alexander. The second one replacing him was Sir Beaumont Philips. The Commission made recommendations to the administration, which were gazetted and given full effect of law.
19. In 1950, the first BSIP land revision was conducted. The Land Regulation 1914 became Chapter 49 of the 1950 Revision.
20. In 1951, a Special Land Commission comprised of Sir Collin Allan was tasked to study, record and report on customary land tenure in BSIP. On 17^th July 1959, Sir Allan submitted his report.
21. Based on that report, the first Land and Titles Ordinance (LTO) (No. 13 of 1959) was enacted. That Legislation amalgamated the Land Regulation 1914 with other Regulations dealing with land.
22. At that time the lawmaking purview was vested on the Western Pacific Council based in Fiji. Laws then came in the forms of Ordinances and no longer Kings or Queen’s Regulations.
23. In 1963, another revision of BSIP laws was completed as at 31 December 1961. The Land and Titles Ordinance 1959 became Chapter 56 of the 1963 Revision (Cap. 56).
24. In 1968, the Land and Titles Ordinance (No. 4 of 1968 (LTO 1968) was enacted. It repealed the LTO (Cap. 56) and all other and related Ordinances. The LTO 1968 was the first comprehensive Colonial legislation which dealt with all aspects of land. It is the predecessor of the current land legislation.
25. In 1971, another revision of the BSIP laws was completed at 31^st December 1969. The LTO 1968 became Chapter 93 of the 1971 Revision (LTO Cap. 93).
26. At independence in 1978, the LTO, Cap. 93 became the Land and Titles Act by virtue of Legal Notice 88/1978 which converted all Colonial Ordinances into Acts of the new Parliament. That instrument is what is now the current Land and Titles Act (Cap. 133).

The sale of Kooree and Nanago land.

27. It started in 1886 when three Guadalcanal men namely Woothia (Chief of Langa), Allen (Chief of Nanago) and Manugo (Son of Allen) sold a large tract of land in North Central Guadalcanal to Mr. Thomas Gevin Kelly, John Williams and Tomas Woodhouse of Sydney, NSW, Australia by deed of conveyance dated 7^th November 1886, for sixty pounds in trade goods.
28. The area sold described in the 1886 Deed is as follows; “All that piece (sic) of land called Kooree and Nanago extending from a remarkable grass patch in Langa bay westwardly to a point in Le Crux bay called Bah, from Bah point S.S.W from grass patch in Langa bay”.
29. Having read the boundary it is of significant that the land sold includes part of present Honiara city extending from Point Cruz to Red beach or inland Tenaru.
30. In 1905, following a number of sales, the new owner of the land was one named Oscar Svensen. On 14^th February 1907, by conveyance, Levers purchased the land from Oscar Svensen.
31. However, doubts were raised about the boundaries, some of those alienated lands were declared as not “waste Land” and return to the original owners.
32. As a result, a Commissioner of Inquiry was appointed. The decision of the Commissioner had affected land acquired by Levers. Subsequently Levers negotiated a tradeoff deal with British Solomon Islands Protectorate (BSIP). That Levers would surrender to the High Commissioner for cancellation of its instrument of title to the land and a substitution would follow.
33. By indenture dated 2^nd November 1926, between the Commissioner of Lands (COL) on behalf of BSIP and Levers, there was consensus on two points;
    1. LPPPL to surrender the whole of land (as purchased in 1886) to the BSIP to be cancelled; and
    2. In exchange, BSIP agreed to convey to LPPPL a portion of land of 19,740 acres from Mataniko to Tenaru known as Levers 1962 Land.
34. The applicable law at that time was Solomon Land Regulation 1914 (Kings Regulation) define in two expressions, “native land “and private land”.
35. After that, BSIP cancelled LPPPL’s instrument of title to the whole land but registered the Levers 1926 land (19,740 acres), as freehold estate in fee simple in the name of LPPPL. A plan of the land was attached to the indenture.
36. In mid-1940 BSIP was interested to established an industrial area for Honiara Town to the east of Mataniko river. That area was part of Lever’s land in 1926.
37. By indenture dated 12^th February 1947 LPPPL sold to BSIP a portion of its 1926 land covering 5,620 acres as freehold estate in fee simple.
38. The 5,620 acres of land covers the area between Mataniko river to what is now Ranadi. The ownership of the remainder 14,120 acres remained on Levers. That area stretched from Ranadi to Tenaru point in the east. The reminder land was later assigned land Reference No. 83 of LR 83.
39. By conveyance dated 25^th February 1970 Levers sold to the COL its unencumbered freehold interest from part of its remainder, LR83 to BSIP, namely, Lots 17, 18, 25 and 26. COL then held those lots as free hold estate in fee simple. The lots are marked on the map1711 attached to the 1970 Conveyance (see page 46, Court Book 2).
40. On 2^nd October 1970, the COL lodged on application for first registration on behalf of the Government, to registered Lots 17,18, 25 and 26 of L.R 83/R, see plan NO. 1721 depicted.
41. As a result of the registration Lot 17 was registered as Parcel No. 192 -010-1 which the COL held the PE, or/which the disputed land was registered since 15^th March 1971.
42. Further background facts are related by the defendants, that in 2004 Eagon, JJ Ltd and Dettke were neighbors at Ranadi seafront. They owned lands adjoined each other right next to the sea. Each owner used the sea front of their land without complaint from each other, Eagon owned PN. 224, JJ Ltd owned PN. 228 and Dettke owned PN. 243.
43. Mr. Chow owner of JJ Ltd, knew sea in front of his land was customary so he signed an agreement with Tandai landowners giving him right to use that sea front.
44. In 2005 Top Timber leased JJ Ltd’s land for use in its business. Top Timber then reclaimed part of the sea area in front of land and built a jetty on it. This would enable off-loading timber from vessels onto JJ’s land.
45. Top Timber had used that land and sea in front for 6 years without any complaint.
46. In 2011, the Claimant started charging Top Timber for the use of the sea in front of JJ Ltd’s land.
47. On further enquiry, it was discovered that the sea in front of both JJ Ltd’s land and Eagon had become a new parcel owned by the claimant. Somehow Mr. Dettke registered the sea in front of those two company’s dry lands in order to charge them for using the sea.
48. Top timber refused to pay the charges demanded by the Claimant. This was the start of the dispute.
49. In 2014, the then Lands Minister, Mr. Onika (deceased) directed the then Deputy Registrar of Titles to de-registered the Claimant’s sea parcel. Mr. Onika was acting on a Cabinet decision of 25^th October 2013. The Deputy ROT then de-registered the parcel.
50. In response, the Claimant commenced Civil Case no. 102 of 2014 challenging the de-registration. Whilst this case was on foot, the Claimant’s title to the disputed parcel was restored based on a consent judgment between Claimant and the Crown. Other parties did not know of or sign.
51. In 2016, the Claimant commenced Civil Case No. 531 of 2016, alleging that Top Timber had encroached into the disputed parcel.
52. In 2017, Top Timber applied for interim injunctions against the Claimant, but the application was refused. In September 2017, a consent judgment in CC 102 of 2014 was set aside, there was no appeal by the Claimant.
53. Eventually trial of the two consolidated cases commenced on 28^th September 2021.

Observation on HWM since 1886 sale of Mooree/Nanago land.

54. The land sold by three (3) natives of Guadalcanal in 1886 formalized by a Deed of Conveyance described its boundary from Point Cruz to Tenaru. Apparently, the land covers half of Honiara city now, inclusive of Ranadi.
55. Unfortunately, there was no plan or map attached to the Deed, however land and boundary bounded by sea in the north was not well defined.
56. Solomon Land Regulation 1914 (King’s Regulation) define in section 2 the expression “native land”. It means land owned by natives or subject to the exercise by the natives of customary rights of occupation, cultivation or other uses, for instance fishing and hunting.
57. From the definition, Solomon Islands natives in the 18^th Century would discern by acknowledging that they were the real customary land owners; no one had ever disputed the first sale transaction. The land they sold was land they actually saw with their physical eyes, and no more.
58. What they actually own was a land mass used for occupation, cultivation, and other uses. Where one boundary line was bordered by sea, the usage of it was to obtain salt and fishing. The beaches with modern description, between high water mark and low water mark was used for recreation and leisure. None of them ever knew about high water mark, low water mark, who owns the foreshore and who owns the sea bed below low water mark.
59. They even had no slightest idea about the definition of land expressed in S. 2 of the Land or Titles Act or as discussed in Combined Fera Group V AG case.
60. On 14^th February 1907, Levers bought the land by Deed of Conveyance from Oscar Svensen. Reference was made to 1886 transaction for the main purpose that the same boundary be maintained and it was so.
61. In 1926 there was an agreement between BSIP and Levers, for surrendering and substitution. BSIP would convey to Levers a land of 19,740 acres, from Mataniko river to Tenaru bordered with Tenavatu.
62. There was a plan at page 35 (Court Book 2) attached to the Indenture. It shows the boundary of the land indicated.
63. The land sale on 12^th February 1947 when Levers sold 5,620 acres of land to BSIP and retained the remainder. The boundary of the land was from Mataniko river to Ranadi. Attached to the indenture was a map on page 37 of Court book 2. The northern boundary of the map which runs followed the contours of the foreshore indicated the high-water mark was the boundary. At this point, it is certain that land below high-water mark was untouched.
64. On a map 1711, 3 lots were identified Lot 22, 24 and 17. The indication of the northern boundary can be reasonably assured that HWM was the boundary.
65. On 25^th February 1970, Levers sold part of its freehold interest in LR 83 to BSIP. The LR contain four lots, lot 17, 18, 25 and 26. From that point Commissioner of Lands held those lots as freehold estate. Again, HWM was the same boundary as in 1926 conveyance.
66. Upon observations of map 1711, lot 22 and lot 24 are separate lots. Any application to register lot 17 will not affect these two lots. The question whether the two lots were created first in time from lot 17 is immaterial.
67. Part of lot 17 as shown on map page 48 (CB2), focusing on the northern boundary is with thick straight line that joined lots 14 and 22. Assumably, that is the HWM boundary as indicated. However, on the conveyance document, there were handwritten parcel numbers 192-010-1, 192-002-4, 192-002-5 and 192-007-4. Those parcels were proposed parcels upon registration.
68. On 2^nd October 1970, the COL lodged an application for registration of Lots 17, 18, 25 and 26. There were notice put up by ROT on 23^rd December 1970, and also inviting persons who had interest to give notice.
69. At that time the land legislation in force was Land and Titles Ordinance (Cap. 93). Under S. 10 there were two types of registration, one for legal interest and second for seabed and foreshore.
70. The application for registration was in fact made under S. 10(1) of LTO (Cap. 93), for registration of a free hold interest but had nothing to do with foreshore and seabed.
71. On 19^th March 1971, Commissioner of Land’s freehold interest in lots 17, 18, 25 and 28 were registered for the first time. As a result, Lot 17 became PN. 192-010-1, lot 18 became 192-010-4, etc. From then Commissioner of Lands held PE title in all the four parcels. Noted they were all on dry land.
72. In a map packet 5 of CB (4), indicate the conversion of lot 17 which became PN. 192-010-1. The northern boundary as noted was similar or the same with 1970.
73. Upon observing the block plan there were certain parcels drawn up, PNs. 224, 228, 262 and 243. It would show PN. 228 is almost shallowed up by PN. 262.
74. Also noted is map on page 35 with dotted lines which Mr. Suri describe in his submissions as HWM boundary. However, there is no proper indication but that can be accepted because there were words to the effect, “rough coral beach” and” sand and gravel”.
75. It is with no doubt, but clear as crystal that plan on page 35, map on page 37 and map on page 4 (all from Court book 2) and map 1711 show boundary as HWM. However, map 48, map 59 and map packet 5 show HWM as straight lines.
76. Map packet 7 which is more of latest creation shows PN. 262 as created from lot 3192.
77. Whilst I would accept there was HWM identified of the land BSIP bought from Levers, despite whether it was a straight line or line that followed the contours of the coast line.
78. It commenced at first registration of lot 17 and others, the map used was described as plan 1721 which I noted the HWM is a straight line. This concludes that HWM in 1971 did not reflect the natural curves and points. The significant question to ask, what is the acceptable HWM drawn and recognized by the parties immediately before the claimant and 3^rd and 4^th Defendants acquired their specific parcel numbers in 2004 or may be earlier.

Accepted High Water Mark

79. The argument by the Claimant is that the original HWM was placed on the painted stake affirmed by the surveyor during the site visits. It could have been drawn in 1971 when the COL registered PN. 192-010-1 in that year.
80. I have observed important maps and HWMs which reflect on land sales and transactions on the coastline which the subject land PN.262 was located.
81. It is further argued that 1999 HWM was the seaward boundary of PN: 228, and in 2011 HWM was outside of PN: 228.
82. When PN. 192-010-1 was registered the northern boundary was the HWM and that PN was on dry land. On the second paragraph of Mr. Taupongi’s submissions he says in 2004 Eagon, JJ and Dettke were neighbors.
83. Before 2007 the neighbors would have been fully aware of the boundaries of their specific parcel numbers and had been self-involved in their various business activities.
84. The important question to pause, what is the accepted HWM existed before the Claimant and defendant (3) acquired their lands in 2004 or earlier.
85. In identifying which HWM should be accepted the Claimant relies on the survey plan drawn by Mosese and Associates showing movement of HWM lines, ref-Annexure “BD-2” attached to Dettke’s sworn statement filed on 28^th August 2017.
86. The survey plan shows the original HWM of the Crown land in 1970 was the far outer line and the original HWM of PN. 192-010-262 before it’s subdivision. The second outer line which is the 1999 HWM as the seaward boundary of PN.192-010-228. And the 2011 HWM line is the line outside of PN. 228. The map also shows the HWM of the disputed land. It shows that in 1999 the HWM was where the dryland (PN. 224 and PN. 228) ended.
87. The Counsel for the defendant (4) argues that the 1886 HWM and 2007 HWM are the same, it is a straight line cutting across the front of PN.224 and PN.228. The 1999 HWM is different, it follows the contour lines and points. The Counsel questions how did the HWM move from running across the natural contours of PNs 224 and 228 in 1999 to a straight line out in the sea in front of those parcels in 2007.
88. In any event Counsel for the Claimant suggests that the court can draw inference that in 2007 when PN. 192-010-262 was created, the HWM either same as 1999 HWM or between 1999 HWM and 2011 HWM. He further suggests that in 2007 there was some dry land which constituted PN.192-010-262. That does not go down well with the defendant (4) because the 2007 HWM on the Lands Office map is inconsistence with 1999 HWM.
89. The question is how did the HWM moved running along the contours of PNs. 224 and 228 in 1999 to a line out in the sea in-front of those parcels in 2007. The counsel for Defendant (4) submits there was no reclamation in front of those two parcels between 2004 and 2007.
90. The shift of the HWM from 1999 to 2011 and then diagonally out into the sea when reached PN.228 implicated there was backfilling and construction of seawall and jetty by Def.4. But it cannot be any mass excavation which is contrary to the shift of the HWM as drawn by Mosese and Associates, that was four years after 2007 HWM when PN. 262 was created. When I turn my mind on the logic of it, it is different.
91. During survey I noted the pink mark painted as original HWM on PN.243, reflected as photograph (2) on page 13 of Claimants further submissions. I also observe photographs 1 and 2 which appear as dead photos or computer photographs.
92. Despite those arguments it is obvious the parties have agreed in their written submissions that 1999 is the correct HWM to be adopted in this case. Definitely 2011 HWM is inappropriate for the reason that three neighbors had originally allocated their parcels and they are quite familiar with their boundary marks. No one inhabiting a registered land can be ignorant of the boundaries of his land. As I would observe PN: 262 was never on dry land according to HWM in 1999 which is a common boundary to all parcels owned by the Claimant and 3^rd and 4^th Defendants.
93. Having determine the accepted HWM premise on the reasons express herein, none of the evidence of Mr. Lodi, Mr. Kabolo and Mr. Satu is convincing enough to be inclusive as determinant factors.

Written Agreement

94. The next issue is the written agreement for sale of land under sea-bed to provide access to 100 meters north of PN: 192-010-228 own by JJ Ltd.
95. On 15^th October 2003, Mr. Peter Chow owner of JJ Ltd and Trustees of Tandai Land Holding Group, comprised of Mr. Savino Laughana, Simon Mavi, Vincent Kurilau, Renato Kavichavi and Damoso Loko signed the sale of land agreement. The written agreement was prepared by Mr. G. Suri.
96. In my respectable view Mr. Suri was fully convinced the area was customary land. I do not doubt Mr. Suri is one of the prominent lawyers in this country. He knew thoroughly and quite well that the subject land (seabed) was customary land, therefore he was willing to prepare the agreement, knowing the five representatives represent the Trustees who were rightful owners of the area in custom.
97. In this case Mr. Suri represent the Claimant against JJ Ltd which was the 3^rd Defendant in this case.
98. I learned from Mr. Suri’s submissions that preparation of the written agreement was a minimal task therefore reflected in a small amount as his legal fees. He further stated that he did what he did according to instructions and no more.
99. More significantly is when Mr. Suri retracted in his submission that on the set of new evidence which he found, render the written agreement obsolete. He also refers to the termination.
100. I must honestly state that the documents and correspondences, has been available in the COL and ROT ‘s offices. A little research will enhance mass collection of documents, even right up to 2014 before this case was filed on 2^nd February 2014. They are not new documents so as to be treated as new evidence.
101. In reality Mr. Suri now finds himself going against his former client. It may most probable he is contradicting himself. To avoid being mean he relies on the termination of the agreement which was valid from 15^th October 2003 to 1^st September 2011, almost 8 years in the making.
102. I noted JJ Ltd filed an application to disqualify the Counsel for the Claimant, which Justice Keniapisia dismissed. His Lordship’s reason is different, after hearing the entire submissions in this case.
103. In the application His Lordship was correct that JJ Ltd did not sue on the basis of the agreement, nor for breach of the agreement. In fact, JJ Ltd was only a 3^rd party defendant.
104. To distinguish that case from this one, the issue is that Mr. Suri should have full knowledge of the status of the land before drafting the agreement. He should have done some better research.
105. The fundamental of the agreement premise on wrong assumption as to the status of the land. Whilst the Counsel for the Claimant agreed that the land was customary, later retracted by new evidence that it was a registered land, which the Commissioner owned the PE title as of 3^rd November 2007.
106. The change of ideology and the change of description as to the status of the land, makes the core of the agreement different from the application for recusal.
107. As I have mention earlier, though the agreement had been terminated after 8 years of good standing, had lured JJ Ltd into litigation and changed the flow of revenue expected from lease to the 4^th Def. The trustees of Tanadai Land Holding Group and the Counsel could be a possible party for financial losses and expectation for the termination of the agreement.

Creation of PN: 192-010-262.

108. The Claimant’s case is, after Lot 17 was registered as PN. 192-010-1, it was subdivided and mutated. There is a legend at Pages 41-43 of CT. Book (2). The same was amplified in Ct Book (4).
109. The Claimant submits that the history of mutation shows clearly that both PN: 228 and PN: 262 are products of the very first parcel PN: 192-010-1.
110. Noted on the legends and map packet (2) were the location of PN. 228 and PN: 262. From packet 2 I noted mutation no. 75 of 2007. The superseded parcel is 54 which appear on the legends. There is no explanation whether it was 254 on 54 as correct parcel. Also noted the parcels entered were PN. 260 – 265. The name of the surveyor was J. Vaikota.
111. The Claimant’s case stipulated that legend shows PN. 262 was muted from PN. 254 which was already created and registered.
112. From submissions I concur that the Commissioner of lands (COL) was the owner of PN. 254 situated at Ranadi. The COL then applied under S. 99 (2) of Land and Titles Act on 20^th November 2007 to subdivide PN. 254. On the contrary the legend failed to show parcel 254 but only 54. However, the application is referred to as No. 1176/2007 which I noted on the legend.
113. It would appear the sub-division of PN. 254 was authorized and approved by the COL, Surveyor General and the Registrar of Titles. However, copies of application and any accepted note or approval to verify is not available. Meantime just a tune of submissions and nothing more.
114. The Claimant denies causing or influencing the COL to apply for subdivision, as alleged by Mr. Wong. The application requested subdivision of three (3) parcels into 15 parcels – three parcels are 192-010-254, 192-002-185 and 192-007-209 situated at Ranadi and Panatina amongst them is Lot 3192/VI/H.
115. The block number for Vura is /056/. When Lot number 3192/VI/H was used in the application for subdivision no reference was made to the block no. thus when lot number was used it was not meant for Vura.
116. The Claimant seem to subsidized that if there was an error in lot number (3192) it can be statutory cured. For time being it is immaterial, the importance is the subdivision of PN. 254 was authorized and approved by COL, Surveyor General and Registrar of Titles. Further what was intended was for the registration to be at Ranadi and not at Vura.
117. As I have said copy of letter of application by the COL on 30^th November 2007 should be a good evidence, as well as copies of memo or letters which the Registrar of Titles informed the Surveyor General that he had authorized the parcels in the listing schedule after examining the application.
118. Note the application and authorization was on the same date 30 November 2007. A day before that, on 29^th November 2007, the Surveyor-General had already entered on the registry map before informing the Registrar that the subdivision registered by the commissioner had been entered on the registry map. That appears fizzy; hence, the Claimant submits retracting that the date 29.11.2007 may be an error. But there was no reason or explanation for the error made.
119. The subdivision of PN: 254 resulted in creation of PN: 260 to 265.
120. The defendant’s argument is that going by 1999 HWM the disputed area (PN. 262) was not available to the COL when he applied for subdivision of PN. 254 in 2007. The reason being the disputed area was always part of the sea and never part of Lot 17, part of the remainder after subsequent subdivision.
121. Top Timber accepts that Surveyor General and ROT in 2007 assigned new parcels being PNs. 260, 261, 262, 263, 264 and 265 as part of 2007 subdivision. However, the description of PN 262 was wrongly assigned to the disputed area and not part of PN.254 but part of the sea.
122. Even if the disputed area was part of PN: 254, there was no survey to the disputed land prior to creation of it. The only survey connected to PN: 262 is in fact a survey of a different parcel in Vura.
123. In 2003 Frank Marape who owns 191-056-269 in Vura requested an extension to his parcel. This required survey of that area. On 8^th August 2003 Mr. Marape filled in an Instruction to Survey (I to S) Form requesting Survey of his land at Vura. That area for extension was given Lot No. 3192 because the reference for the survey shown in the instruction to survey was for Lot 3192/VI/H. There was no evidence of what happened to Vura Survey later.
124. Four years after, on 30^th November 2007, the COL applied for subdivision of the reminder land in 192-010 block in Ranadi, that is PN: 254 together with two other parcels. In that application the propose PN: 254 be subdivided into PN: 260 to 262 etc.
125. Since the assignment of lot 3192 to Mr. Marape’s area for extension in Vura in 2003, it was the first-time lot 3192 reappeared in official documents again. By then in 2007 lot 3192 had been assigned to land at Vura which had been surveyed under that reference.
126. Subdivision of PN: 254 went ahead. That PN was cancelled and replaced by PN: 260 to 265 (lot 3192) thus came into existence in 2007.
127. A year later in August 2008, office of Surveyor General picked up the discrepancies with the creation of PN: 262. The Acting COL then requested the Surveyor General to look into the issue. The Surveyor General called for investigation. By a memo dated 29^th August 2008, addressed to him by the Principal Surveyor, Mr. Volelia posted the following findings.
128. Survey records for issuance of lot 3192/VI/H was in fact for Vura and not at Ramadi (sic) and was raised under I to S 38/2003 being for extension of parcel 191-056-269 Lot 3192 /V1/H for Mr. Marape.
     • 2. The existence of lot 3192/VI/H at Ranadi shown on the C. Series plan was unknown as there was no record at hand to prove that.
129. From two different opposing views expressed under this subhead, Top Timber does not deny PN: 254 was at Ranadi and was subject to COL’s application for subdivision. That subdivision would include PN: 262. The procedures in relation to subdivision was in fact not in order. And the subdivision requested was entered into the Registry map for unknown reason earlier by the Surveyor General.
130. Those process and the powers of those three Officers are not denied by Top Timber. They had done it. The irregularity noted by Top Timber is that the description of PN.262 was wrongly assigned to the disputed area was not part of PN: 254 but part of the sea.
131. Top Timber also detested that PN: 254 was not surveyed prior to creation of the disputed land. I noted the preparation and documentations as to legend which show all information related to parcels PN: 260 to 265 was mutated from PN: 254.
132. The anomaly situation noted is that there was no survey record issuant for Ranadi. One that was issued was raised under Instruction to Survey for S. 38/2003 for extension of PN. 191-056-269 at Vura for Mr. Marape.
133. The existence of lot 3192/VI/H at Ranadi according to Principal Surveyors investigation, shown on C series plan was unknown. There was no record and no evidence to poof it. Ultimately it would be a mistake or an extremely none performance of duties that subsequently related to no survey being done before subdivision of PN: 254.
134. Apparently how would PN: 262 emerged from lot 3192, located at Vura whilst PN. 262 was at Ranadi. Whatever could have happened would have invalidated the creation of PN. 262.
135. Even if PN: 262 is invalidated, PN: 254 will still remain in existence no doubt. But whilst good will emerge out of it, in my respectable view there is risk in that submission. When one observes the block plan properly it is obvious that PN: 264 is nine (9) blocks away on dry land but not for PN: 262 which submitted by the Claimant that little part of it is on dry land and the rest under water. The question is, how big is PN: 254? So far, no explanation, and undoubtedly the block plan was drawn to a fixed scale with a fixed ratio.
136. The Claimant submits that if there was a genuine error it can be rectified by statutory legislation. The Claimant refers to S. 94 (1) which confine to any error in the registry map, the Registrar if he thinks fit bring notice to any person and require the Surveyor General to correct the error. And if so, the Surveyor General to prepare a new edition of the registry map and the old map be omitted.
137. The argument advance by the Claimant is that those provisions were not resorted to because PN: 254 was properly muted and the boundary followed the original HWM.
138. The problem with that submission is when the Survey General picked up the discrepancies, he did not resort to the statutory provisions but resort to investigation. Not because the mutation was properly done, but was done inherently with discrepancies. As a result, the Principal Surveyor recorded his finding in his letter to Surveyor General on 29^th August 2008.
139. Secondly, S. 94(1) and S.95 of L & T Act do not provide for mandatory actions but optionally after taking steps which he thinks fit to correct the error and by omitting it from the new map.
140. Neither the Surveyor General nor the R of T had done anything and the mistake persisted until the Claimant acquired PN. 262 in 2011.
141. Perhaps with the cabinet paper and the Minister of Lands concern about implementing the paper at the end of 2013, that ROT enquired with the Surveyor General about PN: 262, then Mr. Volalia being the Chief Surveyor advised in his letter dated 25^th February 2014, stated that the actual instruction to survey 38/2003 according to our record was issued to SOLAND a private survey firm. The initial instruction to survey lot 3192/VI/H was for site at Vura and the survey work should be carried out for Willie Frank Marape, of Live Wire Electrics, P. O. Box 1268, Honiara.
142. To conclude, if the instruction to survey was for Vura (sic) but plotting was done at Ranadi then something has gone wrong with the process between the surveyor, the examiner and the draftsmen in the Ministry.
143. Based on that the Deputy ROT issued notice to the COL to rectify and cancel the PE in PN: 262 on 28^th February 2014. In the notice the ROT gave 3 grounds, the last two are relevant being;
     2. There is no instruction to survey on record authorizing the surveying and creating of PN.192-010-262.
     3. In the absence of instruction to survey this parcel should not be drawn on the registry map. The drawing of this parcel 192-010-262 on the registry map was based on misrepresentation by the office of COL and Surveyor General.
144. This is the similar finding by Mr. Volalia when he was the Principal Surveyor on 29^th August 2008. That finding was quoted by COL Ms. Ohukeni in March 2014 and stated;

The finding of these various officers seemed to conclude that the manner in which the eventual survey and registration of parcel 192-010-262, lot 3192/VI/H was conducted was erroneous in nature as paramount standard operating procedures were being by passed and the whole process was being totally disregarded. Therefore, according to the survey report it was a mystery how it ended up to be on cadastral map at Ranadi.

145. Despite those correspondence the Claimant attempted to argue that operational procedures had been complied with. In fact, it was totally by-passed, the whole process was a sham. It is clear therefore that in 2007 when PN. 262 was created there was never an actual survey done prior to creation though some marks were shown during site visit. The only instruction to survey on file for PN.262 was that for the land in Vura for Mr. Marape. The lot number which was assigned to PN: 262 was Lot 3192/VI/H Vura land.
146. It would appear that PN: 262 was patched on the cadastral map for Ranadi by the orchestrated officers. I noted the application for subdivision referred to land at Ranadi and Panatina not Vura. But things happened as they were and differently.
147. With the clear discussions, is it possible that the error be rectified under S. 94 (1) and S. 95 of Land and Titles Act? I take the time to read the case of DJ Graphic Ltd V Commissioner of Lands [1995] C 111; HCSI – CC 102 of 1995; 40 of 1995; 164 of 1995 (11 December 1995) Palmer J at that time said... “There is nothing in subsection 4 (4) L & T Act which says that the Minster of Lands (MOL) can issue as many directives as he wants to the COL. However, there is no lawful requirement on COL to comply with directives. The Commissioner of Lands is obliged to take that directives into account but whether he complied with it or not is a matter of discretion that he alone must make”.
148. In this case the ROT has exercised his discretion whether to de-register the land or not. It is a matter left upon himself to exercise his discretion and he did exercise it according to information he received.
149. In winding up this sub-heading it is almost significant to rehearse one part of the introductory that land to natives of Guadalcanal is land in its physical form. There was no knowledge of the definition of land or high-water mark on law water mark. Therefore, the land sold in 1886 and subsequently in 1970 was dry land.
150. By virtue of S. 47(1) (b) of 1959 L& Title Ordinance (Cap. 56) all foreshore and seabed in BSIP were vested in a Board as public land. The foreshore and seabed in front of Moore/Nanago land was vested in the Commissioner of Lands. Therefore, foreshore and seabed of Mooree/Nanago land could never be sold by Levers or any other person because they were already vested in the Crown.
151. Therefore in 1968 under the LTO (Cap. 93) the Commissioner of Lands was given the right to apply for first registration of any foreshore and seabed including Mooree/Nanago. The Commissioner of Lands did not exercise that right.
152. In 1970 Levers sold part of Mooree/Nanago land to BSIP, under LTO, Cap. 93. In fact, Levers did not include foreshore and seabed because those sea areas had already been vested in Commissioner of Lands.
153. When the Commissioner of Lands applied for registration of Lot 17, he did so pursuant to S. 10 (1) of LTA, Cap. 93 and not S.10 (4). That was not for foreshore and seabed in front of Lot 17 which required a different process.
154. Therefore, the status of the area now PN: 262 has always been part of foreshore and seabed of Honiara, known as Ranadi.
155. The argument by the Counsel for the claimant that in 2007, when the Commissioner of Lands applied for subdivision and registered PN: 262, part of the land had submerged was already registered piece of land being part of PN: 254 from which PN: 262 was sub-divided.
156. Therefore, in legal sense registration of PN: 262 in 2007 was within the spirit of S.10 (4) of L&T Act and that should be protected to the original HWM.
157. Since the sale 1886 and the inquiry and the substitution in 1926 there was no native claim to challenge any registration under S.10 (4) in favor of the Commissioner of Lands, because it was never done. Therefore, the movement of the HWM did not affect the right of the Commissioner of Lands to register PE in PN: 262. It is only necessary for the Commissioner of Lands to apply for registration of the land under S. 10(4) as it was a submerged land.
158. The Claimant’s argument in aligning with the statutory provisions almost on equal footing with the Defendant (4)’s submissions.
159. Whether the land transferred from one hand to another, as in this case from Levers to BSIP and if at all times the land is under water or sea, how would it be registered. Would the peg marks out into the ocean be identified, or just a mere description that the land extends into sea by 100 meters for example.
160. In this case if PN: 262 may have some pegs on the dry land, but what about out into the sea? Are there beg marks shown in the seabed. There was nothing shown during site visit.
161. I noted the parties would agree about the statutory provisions related to foreshore and sea-bed which vested on the Commissioner of Lands. However, the ROT and the Surveyor General denied the process to sub-divide PN: 262 was complied with. There was no instruction to survey done before the rest of the requirement to follow suit.
162. Initially the responsible officers probably agreed to the application for subdivision, but when actual carrying it was a mystery.
163. There were a lot of words about what had been done but there is no material evidence as to copies of application, copies of approval or authorization referred to, except for details of parcel numbers.
164. Because of none production of those references, no one ever know of any instruction to survey which should have been the first step before the rest, was never done, or done but was destroyed or conceal for some other reasons. In the absence of all that the activities down the line has no basis in law.

Cabinet paper.

165. There was a cabinet paper conclusion dated 25^th October 2013, that all registered land located on the stretch and below HWM from the north west coastal boundary to north east boundary in Honiara sea front be de-registered.
166. The Claimant was granted FTE in PN: 192-010-262 on 12^th April 2011, along Ranadi coast line bordered by HWM.
167. There was a court order on 17^th July 2013 to rectify the register and register the FTE back to the Claimant. The ROT failed in his attempt to de-register the parcel. That failure led to the Cabinet conclusion dated 29^th October 2013. As stipulated in the cabinet paper, the Minister of Lands immediately after conclusion of the paper attempted to implement its requirement.
168. Having noted the Minister’s concern, the ROT made an enquiry with the Surveyor General who investigated the reason for the cabinet paper. The Chief Surveyor Mr. Volalia carried out his investigations on 25^th February and his findings were;
169. The actual instruction to survey (I to S) was not located in the deposit storeroom, however only the duplicate copy of I to S was presented for verification.
170. The I to S 38/2003 according to record was issued to SOLAND, a private survey firm. The initial instruction was to survey lot 3192/VI/H was for site at Vura and should be carried out for Mr. Marape.
171. If the I to S was for Vura but plotting was done at Ranadi then something has gone wrong with the process between the surveyor the examiner and the draftsman in the Ministry
172. From the Chief Surveyors findings there had already been irregularities noted, if not some weird actions taken place evading the right processes and tampering with the file.
173. There were number of correspondences after that finding. One of them was written by the Assistant Commissioner of Lands dated 6^th March 2014 and addressed to the Registrar of Titles Page 98 of CB (2). At paragraph (5) she stated; “However due to important concern raised by the Minister to our respective offices, further research was carried out in consultation with the Surveyor General Office, Registrar General’s office, the Cartography Office, and the Commissioner of Lands Office. The finding with these various offices seemed to conclude that the manner in which the eventual survey and registration of parcel 192-010-262, lot 319/V1/H, was conducted was erroneous in nature as paramount standard operation procedures were being by-passed and the whole process was being totally distorted.
174. At paragraph (6) she stated; “According to the survey report produced by the Chief Surveyor, Mr. Lesly Volalia dated 25^th February 2014, the actual instruction to survey file was not located in the deposit store room. The only evidence is the duplicate copy. The report on I to S 38/2003 as recorded was issued to SOLAND Survey firm for lot 3192/V1/H at Vura. The lot is supposed to be an extension to an existing parcel 191-056-269 for client Frank Marape.
175. At paragraph 7, she stated, “Therefore according to the survey report it was a mystery how the lot was ended up to be on the cadastral map at Ranadi. There could be a whole lot of contributing factors that resulted in this mal-administration mishap, but none of those could justify the fact that the registration of the said parcel in the unprocedural manner.
176. At paragraph 2 of the Deputy Registrar of Titles letter dated 11^th March 2014 addressed to the Permanent Secretary, Ministry of Lands, Housing and Survey states; “The registration of PN192-010-262 was based on the subdivision you requested in 2007. The land registry was never aware at the registration of that subdivision that the land was submerged under water nor were aware that instruction to survey for the creation of this parcel was for different lot altogether. These facts have been known to you since 2008 according to memo of 26^th August 2028 from the Surveyor General”.
177. If you have properly informed us of the facts stated above, we would not have resumed and end up this way but rectify the register on the grounds of misrepresentation by the COL and the S. General”. The same sentiment was shared in para. 21 of the ROT’s letter addressed to the Permanent Secretary, Ministry of Justice and Legal Affairs on 4^th May 2014.
178. Eventually notice of rectification for FTE in PN 192-010-262 was issued to the Claimant Page 115 CB (2). There are (4) reasons for rectification;
     1. That files in the office of the Commissioner of Lands and Surveyor General show that the whole area marked as Parcel 192-262 had been submerged under water by 1999 HWM.
     2. The Commissioner should not have registered himself as the owner of PE because the land has been washed away by rising sea.
     3. There is no instruction to survey on record authorizing survey of the parcel 192-010-262.
     4. In the absence of instructions parcel should not have been entered in the registry map.
179. It is noted though the Registrar of Titles was pressured by the Minister to do what he did, the fact is that the reasons for de-registration had been acceptable in the particular circumstances of this case and hence exercised his discretion.
180. One thing ought to acknowledge there may have been different hands tipping their fingers in this case including the Commissioner of Lands and Surveyor General as clearly stated in the correspondences.
181. I appreciate the fact stated in the Registrar of Titles letter which re-surfaced important issues and affirm the land was a submerged one and the HWM is confirmed to be 1999 HRM. And further affirm the creation of the parcel was for Vura and not for Ranadi. That pops the question is Lot 17 or PN. 192-010-1 including Vura, or overlap with Vura in some ways. The answer is negative. The technical people in the offices of Commissioner and Registrar of Title had expressed mal-administration in the Office of Commissioner of Lands and Surveyor General.
182. In the case of DJ Graphics V Others, Palmer J as he was then stated that there is nothing in s. 4(4) of L&T Act which says the Minister of Lands cannot issue directives to COL. The Minister can issue as many directives as he wants to the COL. There is no lawful requirement on COL to comply with. He is obliged to take into account, but whether he complies with it or not is a matter of discretion.
183. Then out of the blue was a statement of admission by the Solicitor General filed on 10^TH June 2015. The statement was made subject to notice of discontinuance of 2^nd and 3^rd Defendants case who he represented. Amazingly the statement was made before further amended claim was filed on 13^th January 2017, which eventually omitted the 2^nd and 3^rd Defendants.
184. In general, the statement was actually in favor of the Claimant. It outlines the Minister has no statutory power to direct or authorized the Deputy ROT to exercise powers vested on him under S.228(1) of L&T Act.
185. The proper power to exercise in case of any error on a registry map is vested on the ROT and the S. General under Ss 94 and 95 of the L&T Act.
186. The S. General interfered latter course of time. The AG was requested for advice by the D. ROT on para 12 indicating in his previous letter on 4^th May 2014 attracted no reply. Subsequently a notice for rectification was issued by the Dep. ROT.
187. No wonder the Solicitor General and the Claimant agreed on a consent Judgment which later was dismissed by the court for none inclusion of other parties. Such behavior is questionable.
188. The Counsel for the Claimant made reference to certain paragraphs of initial letters written by the Deputy ROT to certain authorities involving pressure mounted by the Minister including the Prime Minister and others on her. Subsequently those pressures become water under the bridge when evidence had revealed the truth of the matter.
189. At the initial stage when the Minister commenced implementing the cabinet paper and the issue of de-registration emerged, there was a period of investigation and flashing of correspondences. That was the period the ROT wrote those letters which the Counsel for the Claimant refers to. Subsequently, however, when the facts began to reveal the truth of what had happened, the Deputy ROT was satisfied on the material evidence available before him, hence he issued the notice of rectification under S. 228(1) of L&T Act.
190. Again, the Counsel further argues the ROT must exercise power in his own discretion and no body including the Minister, Prime Minister, Permanent Secretary, COL and Private Secretary to the Prime Minister could direct the ROT to exercise the power.
191. As I have said the discretionary power was exercised upon revelation of evidence, initial pressures therefore become redundant and would be futile rehearsing them after all.
192. The question to pose is has the Minister of Lands acted ultra vires or has no any statutory power at all? The Counsel for the Claimant in submissions states that the Minister was wrong in law and acted ultra vires. The Counsel quoted a para. of the ROT memo of 13th December 2013 addressed to the Minister, “At the time of registration of the FTE the registry map shows the parcel was part of the reminder parcel 192-010.”
193. The Counsel again refer to Deputy ROT’s memo of 4th March 2014 addressed to the Permanent Secretary informing him that the Minister consistently pursuing rectification of the register.
194. Again, the Counsel refers to the Minister’s letter of 20^th March 2014 addressed to the Deputy ROT that the parcel PN. 262 Lot 3192/VI/H was acquired through fraudulent dealing.
195. In response to the above letter Deputy ROT stated, “I have been under pressure since the middle of Februarys. Pursuing me to my residence during weekend and ...sitting behind me waiting for de-registration notice be issued ...and demanding a copy”
196. The first memo refers to was written before the findings of the Chief Surveyor on 25^th February 2014, the others were after that finding. All those incidences in those memos and letters began to be rectified by the findings of the Chief Surveyor. Further conclusive findings liberated the anomaly and rectified the entire situation.
197. At the time of issuant of the notice for rectification, it is with due respect, the Deputy ROT was clear in his mind, that all the pressures had gone, having being satisfied with documentary evidence retracted his mind, exercising the discretion vested on him and issued the notice for rectification, see case of DJ Graphics V Others.
198. Equitable discretion vested on the COL as stated in the DJ Graphic case, also applies to the Registrar in dealing with S. 228 (1) of the L&T Act.
199. The fact that the notice was not served on the Claimant was an administrative matter for the Registrar. It should not be used against the 4^th Def. Again, discretion in my opinion takes precedent on any administrative matters relating to this issue including inviting the Claimant to explain his case. Therefore, I am able to conclude that the Minister had acted quite aggressively at the initial stage but gradually vade away when knowledge of the mystery and real evidence emerged.

Whether Crown lost part of its land by movement of original high water mark.

200. The argument identified under this topic is whether PN. 262 is part of the original PN. 192-010-1 (Lot 17 of LR 83) or was never part of it.
201. On 19^th March 1971, the COL registered Lot 17 became PN. 192-010-1.
202. To consider whether the Crown lost part of his land it is relevant to identify the HWM at the time of the registration.
203. At the time of the first registration the HWM according to map 1721, which the Claimant refers to as broken line, runs from the corner of Lot 22 to the corner of Lot 14. On map page 48 of CT Book 2, is the magnified exposure which shows an unbroken line but in a straight line, the same as broken line in map 1721 which is almost straight.
204. I noted it is quite difficult to tell from the maps in particular map on page 35 of Ct Book 2 and map 1711, whether there was a gradual loss of shore line (HWM).
205. If PN. 243 was mutated from PN. 220 which had a connection marked HWM was straight line from PN. 243 to PN. 224 which Mr. Volalia placed the painted stake during site survey.
206. We also walk along a straight-line rope implicated as 1999 HWM. The failure is that no HWM can be measured by straight line rope.
207. Courts observation is that the painted stake was really out into the sea (not deep sea). But probably at that time of site’s visit it was high tide, and the photographs taken show the painted stake was almost at LWM that does not agree with my observations.
208. The colour aerial map in packet 7 of Book 4, shows the southern boundary is almost similar to 1999 HWM. The northern boundary is placed at where the painted stake is and round across to the northern tip of PN. 224 with some small curves.
209. The problem occurred during survey that no one informed the survey party of the northern boundary of PN. 262. However if one runs a straight line from the painted stake it will cut through the Top Timber land and reclamation made by Top Timber and even put the wharf at stake.
210. That colour map does not put the northern boundary beyond the straight line from the original HWM painted stake to top northern tip of PN. 224. Therefore PN. 262 placed Top Timber land a narrow strip of land incapable of holding business activities, almost defaced it out of the map.
211. The most significant aspect exposes by colored map packet 7 is that PN. 262 was written below No. 3192. This shows a clear interpretation that PN. 262 was muted from Lot 3192 which is the mystery that has never been resolved in this case and which we try to.
212. From arguments and observations, it could not be true the area now in dispute was dry land at the time of the first registration. The question to pause is, is PN. 254 on dry land? It may be true. That left the notion that PN. 262 cannot be on dry land and seabed at the same time that is logic.
213. But not in 2007 upward when Top Timber reclaimed most part of its land and constructed a wharf. The reclaimed land as observed is beyond the pointed stake straight line due to permission granted through the customary land purchase agreement which Counsel Suri is at the center of it. Today Mr. Suri retracted and persist that the agreement he constructed and adopted was wrong. He may treat that as wrong due to new evidence. However, it was valid for 6 years even when PN. 262 was created, before it was terminated in 2011.
214. All that development and business activities were done under the written agreement. To untie the effects of the agreement is quite costly so would I presume.
215. Therefore, and indeed, the movement of HWM deprived the Crown of its land, in fact it diminished the crown land in some proportion due to natural cause, storms and high waves along the shore line.
216. In the case of Lynn Shellfish and Others (Appellants) V Loose and another (Respondent) (2016) UKSO 14 (2014) EWCA Civi846, the UK Supreme Court refers to LWM as thus;
     • “It is also clear that the low water marks (ie the lines sowing the edge of the sea at low water) of the foreshore have moved significantly with passage of time. At least in recent periods the low water mark have, in every general terms, move further west – ie... seaward, further away from the share...
217. In this case as the Claimant alleged that the LWM moved in land allowing a space between original HWM and 1999 HWM filled with water. This by virtue of the above case was done with the passage of time. There is no strict rule of law that HWM can only move in one direction.
218. The Counsel for Top Timber submits that in 2007 when PN. 262 was created, there was no reclamation by Top Timber yet. There was no wharf constructed at that time and no business activities yet. Apparently, if it was the case then PN. 262 located between the original HWM and 1999 HWM, was in the shallow area and seabed.
219. There is no question about PN. 192-010-1 was on dry land when registered in 1971. However, after transition through years the HWM may move through natural occurrences.
220. In order to create PN. 262 in 2007, the Commissioner of Lands ought to comply with the current Lands and Titles Act, which was reviewed in 1977, S. 10 (2) of L& Titles Act (cap. 133) S. 47 (1) of 1959 Lands and Titles Ordinance merely vests land on Land board, irrespective of foreshore and see-bed.
221. Since PN. 262 was a covered land below low water mark, and should the Commissioner wish to register it as owner on behalf of the Government he must filed application.
222. The Counsel for the claimant argues that there is no requirement for the Commissioner of Lands, the land had subsequently been bought, hence there was no customary interest in existence. Having registered it in his name he was not required to apply for another registration.
223. It would be acknowledged that shift of the HWM due to natural cause or human activities will either diminish or appreciate the size of land. In this case it was shifted against the Crown land so the status of the foreshore and sea-bed became changed. So, if the Commissioner of Land wish to re-acquire again and registered under S. 10 (4) an application should be filed. The Crown land cannot be saved as Crown land through the shift of HWM. If the Commissioner of Lands applied for registration under S.10 (2) for sure the original landowners would intervene.
224. Human activity refers to by the claimant for shifting of HWM due to massive excavation by Mr. Lodi had been dismissed earlier and cannot be accepted. It was done 30 or more years before 1999 HWM was created. 1999 HWM was accepted by both parties as a determination of PN. 262.

Is PN. 262 situated on customary land?

225. The Defendants contend the land PN. 262 is situated now on customary land. And because of that the Commissioner of Lands could not able to register it.
226. The Claimant refers to S. 2 of the Land and Titles Act which define “land” including land covered by sea.
227. I noted the case of combined Fera Group v AG [1997] SBH C 55; HC-LC 004 of 1993 (19^th November 1997). In that case the Court had made certain significant pronouncement. One of it is that S. 47 (1) of the repealed Act had vested the seabed in the Commissioner of Lands as public land subject to subsection 47 (5). Secondly if foreshore and seabed are capable of becoming public land, then they surely form part of native customary land through claims of ownership, use or occupation that had been in place since time immemorial or for a lesser time (in accordance with current native usage).
228. Therefore, it becomes obvious that both dry land and land covered by sea under the definition by the core authority is called land.
229. The argument by the Claimant is that Ranadi area comes under the mass of tract land sold in 1886 after which it changed hands several times. The land area not return to native or tribal owners despite now covers by the sea. Subsequently the Commissioner of Lands owned the land in 1970 and registered it in 1971. Further argument states that the land was submerged due to massive gravel and sand excavation in 1980s. however, the title of Commissioner of Lands did change but preserved though submerged.
230. Finally, the claimant concluded that there is no longer any native ownership, used and occupation of PN. 262. The natives of Guadalcanal has to prove against the Commissioner of Lands.
231. The 4^th Defendant’s view is different, that the area that is now PN. 262 has always been covered by sea and was not part of the dry land in 1886 and eventually sold to BSIP in 1970.
232. In 1959 when LTO (Cap. 56) was enacted, all foreshore and seabed of the land sold in 1886 was vested in Commissioner of Lands in 1959. From that point the foreshore and seabed of the land sold in 1886 could never sold by Levers because they were already vested in the Crown.
233. When Commissioner of Lands registered Lot 17 under PN. 192-010-1 in 1971, that parcel did not include foreshore and seabed in 1970, and that’s important.
234. When the Commissioner of Lands applied for registration of Lot 17, he did so under S. 10 (1) and not S. 10 (4). Simply mean the application was not concerning foreshore or seabed that would require another different process. So PN. 262 is always part of foreshore and seabed at Ranadi.
235. With the status of PN. 262 now expose it is necessary for the disputed area (PN.262) be acquired under Part V of Land and Title Act. It was open for Commissioner of Lands to apply for registration of the disputed area. Had the previous Commissioner of Lands done so relevant native tribe of Guadalcanal claiming to be original owner will challenge such application if that tribe can prove the disputed land was native customary land through usage, occupation or possession. If that is proved then PN. 262 could be excluded from foreshore and seabed.
236. Over the years when LTO (Cap. 93) was in force, no Commissioner of Lands applied for registration, even for foreshore and seabed of Honiara city. Frankly the Commissioner of Lands never attempted to utilize the mechanism for registration of the disputed area though available for that.
237. Finally, acquisition was made under Part V of current Lands and Titles Act (Cap. 133) when J. Limopu was appointed by the COL to conduct acquisition for registration resulted in a number of litigations; Heritage Park Hotel V Commissioner of Lands, Solomon Motors Ltd v JQY Enterprise Ltd. In both cases the Court considered the acquisition process was dubious and highly questionable. The fact remains if the foreshore and seabed of Honiara is Crown land why should the COL appointed an Acquisition Officer to act on his behalf to conduct acquisition proceedings under Part V of the L&T Act.
238. The question whether the acquisition was valid or not, the fact remains that PN. 262 as disputed area, is part of the vast area that was attempted to be acquired.
239. A conclusion can be drawn, as clear from the arguments that the disputed area or PN. 262 was customary land at that time of registration. Even the Counsel for the Claimant agrees that a small portion of the land was on dry land and the rest was foreshore and seabed. If that was the view then 1999 HWM which both counsels agree upon cannot apply to PN. 262.

Counter Claim in CC.102 of 2014.

240. The facts upon which the 4^th Defendant based his Counter-Claim is summed up in paragraph 5 (a) to (u) in its amended defence and counter-claim filed on 22^nd May 2017.
241. It started in 2003 when Mr. Chow owner of JJ Ltd intended to develop his parcel PN. 228 for construction of jetties. He then entered into a written agreement with Tanadai land owners so that he would have right to use the sea in front of his parcel. A written agreement drafted by Mr. Suri was endorsed by the parties.
242. In 2005 Mr. Chow entered into a lease agreement with Top Timber. Under the agreement Top Timber will occupy PN. 228 for business operations and storage of timber products. That agreement will vest upon Top Timber rights, including right under the Tanadai agreement.
243. Based on those two agreements T. Timber then developed PN. 228 by reclamation constructing sea wall and a temporary jetty.
244. Unknown to JJ Ltd and Top Timber, on 30^th November 2007, the Commissioner of Lands registered as the owner of PE in PN. 262. The same occurred on 12^th April 2011 when the Claimant was registered as the owner of FTE in PN. 262.
245. The counter-claimant asserts that due to frequent storm and high waves it suffered financial loss by extending further sea wall and repairing and maintaining the jetty as well.
246. About May 2011 the Claimant attempted to evict T. Timber from PN. 262. At that time T. Timber was not aware that the Claimant was the registered owner of PN. 262. However, T. Timber refused, So Claimant then blocked vessels passing through to load or off load timbers. As a result, T. Timber clients sold their timber elsewhere.
247. On 19^th February 2014, the claimant issued notice to T. Timber to remove its products and wastes from PN. 262. On 26^th February 2014 the Claimant issued another notice. This time T. Timber removed its products wastes from the area.
248. From 2005 to 2011 lease right of JJ Ltd including right of way were assigned to T. Timber. T. Timber enjoyed that right without objection from Commissioner of Lands the PE holder.
249. It would be seen that T. Timber rights over PN. 262 subsisting at the time of registration, was an overriding interest. When claimant obtained FTE in 2011, it held the FTE subject to T. Timber right of way though not registered.

Right of way.

250. The first issue raised in the counter claim in cc 102/2014 is right of way. The facts which support a claim for right of way are stated above.
251. In challenging the issue of right of way the Counsel for the Claimant refers to S. 115 (3) and (8) of Lands and Titles Act.
252. Upon reading those two provisions, it convenes that should an issue of right of way arises the Commissioner is vested with power to order a person by who the right of way is to be exercised to pay the person an amount the Commissioner of Lands may assess by way of compensation in S. 115 (8) Lands and Titles Act.
253. In subsection (5) is the provision for compensation for loss and damages in respect of land which a right of way is made, payment of compensation should be by mutual agreement between parties. Should no agreement is reached the matter be referred to the Commissioner of Land and compensation shall be assessed.
254. I noted the same issue was brought before Justice Mwanesalua on 14^th March 2013 and the Judge had dismissed the claim for none compliances with the process provided under s. 115 of Lands and Titles Act.
255. Pacific Lawyer who represented JJ Ltd had referred the matter to the Commissioner of Lands by letter of 18^th January 2014, and the claimant made submissions on 28^th January 2014. Until today the Commissioner of Lands has not determined the referral claim yet.
256. Whilst that referral is still pending, I would refrain from discussing the doctrine of appropriate and reprobate. At the same time, I would also refrain from discussing S. 243 of Land and Titles Act. Suffice to say that the Court had dismissed the claim for right of way whilst the referral to the Commissioner of Lands is yet to be determined. I will not deal with this issue further.

Right of Occupier.

257. On this issue the Counsel for the Claimant drawn the court’s attention to S. 243 of Lands and Titles Act. The main argument is that Top Timber was occupying an estate vested in the Commissioner of Lands. Therefore, the claim of overriding interest in PE over remainder of public land was unlawful and is a criminal offence and cannot constitute overriding interest.
258. It ought to be noted that the creation of PN. 262 out of Lot 254 was a myth. In fact, it was merely assumed that the creation process complied with the requirements of the Lands and Titles Act. The officers from the office of the Survey General, Commissioner of Lands and Registrar of Titles had one thing in common, the creation of PN. 262 was a mystery, misrepresentation, erroneous, standard procedures bypassed, whole process was totally disregarded and administrative mishap.
259. All throughout the submissions the claimant seems to favour that PN. 262 was partly under water and partly on dry land. The reason being that there was a shift of HWM to 1999 HWM. In between was covered with sea and part of it was on the fore share.
260. The Claimant persisted that shift of HWM did not change the status of PN. 254. Therefore the Commissioner of Lands still own land under water from 1999 HWM.
261. I do not settle with that sentiment. The principle of HWM operate to flex the size of the land. Anyone who owns land boarded by HWM stand to loss or gain his land.
262. In this case the 1999 HWM was the border of PN. 224 and PN. 228. Beyond those lands is foreshore and seabed. When observing rack 7, the colour map, PN. 262 is right in front of PN 224 and PN 228 into the ocean. The location concludes that PN. 262 is covered by sea.
263. Secondly the creation of PN. 262 as I have reiterated was marred by mistake or scrupulous art which authorities had finalized describing as above. This cannot be changed; evidence has shown that due process was not complied with.
264. Whilst I agree with S. 243 of L&T Act applied to right of occupier, the right described by Tanadai agreement had fostered Top Timber to move beyond its boundary to develop what was known as seabed at that time. Mr. Suri the draftsman knew which area covered by the agreement he drafted.
265. Before the work on the reclamation, construction of the sea wall and a jetty commenced, PN. 262 was created from Lot 3192 for Vura a different location from Ranadi.
266. Until now the claimant is using PN. 262 to oust Top Timber and claim it as a trespassed. How would it be when Top Timber was first enjoyed the right to occupy before PN. 262 patched in front of it. Sadly, evidence has revealed PN. 262 was created by mistake and or fraud and the Claimant is still utilizing it to claim money from Top Timber. I must say that is absolutely wrong.
267. Top Timber had developed the foreshore and seabed in advance before the Claimant obtained FTE in PN. 262 in 2011. It cannot be an over statement in my view, that Top Timber has the right to assert overriding interest, primarily on the basis that it had developed, use and did construction well in advance before the claimant appear on the scene.

Equitable interest.

268. It is not in dispute that PN. 192-101-1 was a public land situated on dry land at that time of registration in 1970. Since then no equitable interest was emanant.
269. The equitable interest as appear, seems to develop on 30^th November 2007 when PE in PN. 262 was registered in the name of the Commissioner of Lands and later the FTE was registered in the name of the Claimant. The simplicity of the conflict refers to the two agreement which Top Timber relies on and the new creation of PN. 262.
270. Unknown to Top Timber were those land transactions until about May 2011 when the Claimant attempted to evict Top Timber. After then it was realized and the commencement of conflict of interest emerge.
271. For obvious reason PN. 262 must be below LWM, because PN. 228 as a fixed PN. has its boundary bordered by 1999 HWM (accepted by both parties). Therefore, the land which the Claimant asserts own by Commissioner of Lands is foreshore and seabed. To own such land the Commissioner of Land must apply under S. 10 (4) of Lands and Titles Act. There was nothing done in this case. No wonder the Commissioner of Lands now wish to acquire the full seafront of Honiara City by appointing an acquisition officer, M. Limopu in 2012.
272. As I would repeat and reiterate again that PE obtained by COL in PN. 262 was done under massive suspicion. Any acceptable process was far from being achieved. All that was done was fake and unacceptable. All documentary evidence adduces through Surveyor General, Commissioner of Lands and Department of Registrar of Titles points to one thing, the procedures were not complied with and the titles obtained thereafter was but fallacy.
273. Therefore S. 243 of Lands and Titles Act does not apply and cannot prevent any claim for equitable interest.

Legitimate expectation:

274. This issue was raised not because the defendants would prefer benefit out of it. But it comes into the picture knowing that PE in PN. 262 is under water. The Commissioner of Lands did not own it. To register it, he has to comply with S. 10 (4) of Lands and Titles Act and must give notice.
275. Should the Commissioner of Lands give notice there is no doubt others as customary landowners may have the opportunity to challenge it.
276. The Claimant’s argument circles around the same point that the land PN. 262 was part of public land. It can’t be so. The 1999 HWM which both parties agreed had left PN. 262 out into the sea.
277. The Claimant cannot assert that what has left behind due to shift of HWM was still public land vested on the Commissioner of Lands. I would repeat again that the sub-division of PN. 254 which PN. 262 emerged from was done by a process formed as mystery and sham.
278. The description of PN. 262 was strongly assigned to the disputed area which was not part of PN. 254 but of the sea.
279. I must say that there is requirement under S. 10 (4) Lands and Titles Act for the Commissioner Lands to give notice, if he so wishes to acquire title for submerged land. In 2012 he did exactly as that, by appointing Mr. Limopu as acquisition Officer to acquire all foreshore and seabed lands in front of Honiara City.
280. The Claimant in almost of all the issues assert that PN. 262 is a Crown land. Again, Crown land ends at 1999 HWM, beyond that is foreshore and seabed. Crown cannot own a land that is part dry land and part submerged. How would he own it? Explanation and argument advance by the Claimant are totally out of logic, Common sense and law.

Counter Claim related to CC 531 of 2016.
Whether JJ Ltd, Top Timber Ltd and John Wong trespass.

281. To support its challenge for trespass Top Timber, make reference to the case authority of Levers Solomon V SIEA [2017] SBCA 3; SICOA – CAC of 2016 (5^th May 2017) which outline the elements of trespass. To succeed in trespass the Claimant must prove;
     • (a) that the defendant entered the land directly or indirectly.
     • (b) with some intentional act;
     • (c) which the defendant has no lawful authority
     • (d) at that time the claimant was in lawful possession of the land.
     • (e) and enjoyment was interfered.
     • (f) that the defendant entered the land directly or indirectly.
282. To substantiate its claim the Claimant refers to the sworn statement of Mr. Dettki which attached certain annexures. Those annexures were reports produced by Mosese and Associates.
283. It shows encroachment into two areas 1,289 square meters and 1800 square meters by JJ Ltd, Top Timber and John Wong. The activities on those square meters of land were storages, and marine vessels were loading and unloading.
284. There are pictures as well in one of the annexures showing timber piled, vessel birthing and they were taken in May, July and October in 2016.
285. There was also report from Surveyor Mr. Buga dated 6^th July 2016 that there was a wharf and timber activities. There were also two aerial photos of occupation and timber activities.
286. 286. In their Counter-Claim Top Timber does not deny the fact that it has reclaimed part of PN. 262 and had been using it for its timber business. Top Timber also agreed to the test in Lever Solomon case is correct.
287. However, Counsel for Top Timber submits that Top Timber moved into PN. 228 (JJ Ltd’s land at that time) in 2005 and reclaimed part of the sea of JJ’s land and built a wharf into the sea. At that time the Claimant did not hold title to PN. 262 not until April 2011. By then Top Timber had developed part of it.
288. The Counsel further submits that for the period from April 2011 to March 2014, the claim for trespass cannot be sustained for 2 reasons.
289. First, when Claimant obtained FTE in PN. 262 in April 2011, that title was subject to overriding interest S. 114 of Lands and Titles Act provides for,
     1. Right of way.
     2. Rights of a person –actual occupation of the land.
290. The right of way under S. 112 (a) arose in 2005 when Top Timber moved into PN. 228. It accessed to the sea through what later became PN. 262. Although it is not on register but it binds the Claimant. In 2011 when the Claimant obtain the title it knew Top timber was using the area to access the sea and was developing it and using it.
291. Counsel for the Claimant also outline certain annexures 5,6,8,9 (a), 11, 13, 15, 21-23, as evidence from letter issued by the Claimant, caveat lodged by Mr. Tegavota, claim in CC 262 of 2011, seeking PN. 262 as customary land, ex-parte orders of 22^nd August 2011, ruling on 14the March 2013 dismissing CC 262/2011, letter by Tendai land owners on 1^st September 2011, notice of resumption, letter on 14^th June 2012 by Defendant. Registrar cancelling the Fix Term Estate. Order of Court on 17^th July 2013 granting default judgment, and denial of cabinet conclusion.
292. From my commentaries and analysis under the topic of creation of PN. 262, the chief Surveyor, Commissioner of Land and Deputy Registrar of Titles had affirmed in their correspondences that the procedures were not complied with prior to creation of PN. 262. The Commissioner of Land and the Deputy Registrar of Titles also affirmed that the land was submerged.
293. I noted there was an application for subdivision of PN. 254 which is part of the remainder of the original PN. 192-010-1. Of course, for good reason PN. 254 was never a submerged land and of course the first registration was not obtained by fraud. However, Lot No. 3192/VI/H was wrongly utilized to create PN. 262 despite PN. 262 had been authorized and entered in the registry map.
294. As the officers had corroborated in their correspondences the initial steps taken by them or former officers, appeared fizzy.
295. I noted the Surveyor General Mr. Vaikota, had examined and made entry on 29^th November 2007. On page 73 to 76 of book 3 were details which reflected on page 23 of Counsel for Claimant submission showing PN 192-010-262 was created from Lot 3192, the area is 0.1333 hectares.
296. If the Surveyor General actually involved in surveying and subdivision of PN. 254 why only draft instruction to survey was found in the file related to subdivision of PN. 254 at Ranadi and not an original copy. Why the original copy was missing, was it thrown out and destroyed, if so, for what reason?
297. In the diagram at page 23 of Claimant’s submission book, it appeared intentionally that PN. 262 was created from Lot 3192, Vura. Who would have done that Mr. Vaikota or SOLAND? It can be any body’s guess; however, it must be for some purposes.
298. For no reason that was not explained, however, it was the Officers who label it as mystery. It would appear there was no instruction to survey filed, and probably there was no actual survey done at Ranadi. There are four peg marks, but no one showed to the visiting party the boundary of PN. 262 to the north which is seabed. Is it bordered by 12 nautical mile zone or something else?
299. Ultimately, it appears a game was played but mysteriously unbelievable. The officers who worked in those officers had served for many years and they knew the procedures well. Therefore Lot 3192/V1/H was wrongly used to purport the creation of PN. 262 at Ranadi. Therefore it must be fatal to the Claimant’s case.
300. Another issue is, has the Claimant in lawful possession of the land. The Counsel for the Claimant refers to the case of Kii and Sons Construction Co. Vs Vuvula Poultry Ltd [2017] SBHC 17; HCSI- 264 of 2013 (16^th March 2017).
301. In that case the major issue is “possession”. In S. 229 (2) Lands and Titles Act, it refers to “actual possession” in accordance to the case of Moveni V Chaffas. Actual possession must be by the owner who acquired the interest for valuable consideration.
302. In that case the original owner of the land was Winner Properties Ltd. Vuvula Poultry Ltd which had been using the land under a lease agreement and rental was still in continuation.
303. Somehow, the Claimants entered the land and occupied it. Winners Property could not develop the land because there were trespassers on the land. That case is different from the current case. Therefore, the case of Vuvula cannot assist the Claimant.
304. In this case who is the trespasser? It cannot be denied that Top Timber had occupied the land from JJ Ltd since 2005. Since then it reclaimed good part of the land, constructed a wharf and occupied it.
305. Those activities were done well in advance before the COL acquired the PE title and the claimant obtained FTE title to the land in April 2011. Those activities were done by an occupier first in time.
306. Because Top Timber had been using PN. 262 since 2005 created a statutory overriding interest of rights of way and right of first occupier and because the Claimant holds title subject to those interest, Top Timer’s use of PN. 262 between 2011 and 2014 cannot amount to trespass under the test in Lever Solomon’s case.
307. Secondly, the reason why Top Timber could not have been trespassing into PN. 262 during that period the Claimant took title because its title was wrong as it had been obtained through mistake or and fraud. The Claimant is not entitled to claim damage for trespass into the land, which it never owned in the first place.
308. On the second period as from July 2015 to the present, the Claimant should not have restored its Fix Term Estate in PN. 262 in 2015 for the reasons as exposed and therefore the claim for trespass in CC 531 of 2016 is not made out as well.

Mistake/ Fraud.

309. Mistake or and fraud is the major challenge to the creation of PN. 262 in CC 102/2014 and deals with the issues arose first in time and also deals with the decision made in 2014.
310. In the counter claim Top timber pleads that the creation of PN. 262 in 2007 was a mistake or fraud at the first place because that area was never on dry land but part of the seabed.
311. The argument by T. Timber is that PN. 262 was never part of Lot 17. And the Claimant has never proved that it was part of Mooree/Nanago when it was sold in 1886. What is PN. 262 now has always been part of the foreshore and seabed.
312. The Claimant’s stand is that none of the particulars of fraud and mistake pleaded in both cases (CC 102/2014 and CC 531/2016) was committed by Mr. Dettke or anyone representing the Claimant. PN. 262 was already created in 2007 before the FTE was granted to the Claimant in 2011.
313. Mr. Wong alleged in his statement, paragraph 16, that Mr. Dettke, a Minister misused his position in the government to register part of the sea in his company’s name. That allegation was never proved by Mr. Wong.
314. That is not the primary challenge in the counter claim at this stage but the crucial mistake was made by the Commissioner of Lands in 2007 with a wrong assumption from PN. 192-010-1 (Lot 17).
315. And it is clear that the particulars do not challenge the first registration of PN. 192-010-1 occurred on 15^th March 1971, but attaching registration of PE in the name of the Commissioner of Lands in 2007, and FTE in the name of the Claimant in 2011.
316. There is no dispute that the original crown land registered in 1971 as PN. 192-010-1 was on dry land. However, the Claimant states over the years through massive excavation of gravel in 1988 – 1995, the Crown land was partly lost but not through accretion. Hence crown land remains as of the time of first registration in 1971, therefore no fraud or mistake.
317. The important part of Top Timber argument is that the Commissioner of Lands used maps produced by Lands Office in 2007 which shows a wrong HWM that is a straight line sitting on top of the sea. It cut across PN. 228 and PN. 224.
318. Of such map could be the colored map, racket 7, then that could be true. The whole entire PN. 262 was on the seabed.
319. I would not accept the argument that the area submerged was due to natural process, even so, the land would still be saved by S. 10 (4) of Land and Title Act. The Commissioner of Lands need not apply for registration of the submerged land because it was already bought and had been registered in his name. That is completely out of context.
320. PN.265 which was one of the six lots in the subdivision can be located in the map, 6 blocks away towards the tributary of Lunga river mouth. PN. 265 is actually on dry land. This raises the question, is PN. 254 partly on dry land and partly below low water mark or foreshore and seabed? In my personal view that simply cannot add up. If 1999 HWM is the seaward boundary of PN. 224 and PN 228, then any HWM in 2007 beyond 1999 HWM, places PN. 262 in the seabed. It can’t be said that part of PN. 262 is on dry land and part in the seabed.
321. Therefore, the description PN. 262 was wrongly assigned to the disputed area which was not part of PN. 254 but part of the seabed.
322. Top Timber therefore relies on S. 229 Lands and Titles Act to rectify the registration for mistake/fraud done.
323. In this case whilst Commissioner of Lands was entitled to have PN. 254 subdivided he was not entitled to include in the subdivision of the sea in front of PN. 224 and PN. 228, because it was part of the seashore and seabed not part of the remainder land.
324. It was a mistake because the Commissioner of Lands relied on the wrong map which had a wrong HWM (2007). It was a deliberate action to include the sea in the remainder knowing it was part of the sea. On the other hand, the Claimant argues that the COL need not to apply for registration because it had already bought the land.
325. The action by the Commissioner of Lands resulted in the registration of the PE should never had happened at the first place through subdivision. The actions were prior to the registration yet link in time and directly caused the registration, therefore it was a mistake.
326. The Commissioner of Lands is not entitled to the protection under S. 229 (2) Lands and Titles Act. In this case the Claimant did not cause the mistake/fraud, or had knowledge of it however the Claimant is deprived of that protection in S. 229 (2) because it never had possession of PN. 262.
327. In the case of Moveni v Chaffers^[1], the Court stated at paragraph 11, “Unfortunately, I do not agree with that proposition. Ownership and possession are not the same thing. A person may own a plot of land but unless he occupies the land, he is not in possession of the land. The fact that he owns the land does not necessarily mean that he is in possession of it”.
328. In this case, it is as crystal that the claimant does not in possession of the land, hence is not protected under S. 229 (2) of the Act. On appeal the Court of Appeal said, In the circumstance “possession” must mean actual possession”.
329. The Claimant admits it has never had actual possession of PN. 262 but blamed Top Timber for preventing it from taking actual possession of the area. The Claimant relies on the case of Kii and sons cited earlier. I have dealt with the application in that case in law. It does not apply in the current case. Therefore, ownership of PN. 262 must be interpreted as actual possession not just a mere claim or ownership by attribute. That case was decided based on no evidence of mistake, hence the court refused to rectify the title.
330. Evidence reveal Top Timber reclaimed PN. 262 and using it since 2005 until 2011 when the Claimant obtained Fix Term Estate. Top Timber did not prevent the Claimant from taking possession. In fact, Top Timber had been already there engaged in business activities building sea wall and jetty before Claimant obtained its title. That is different from what the Claimant is complained of, its allegation is not supported by any evidence.
331. In the absence of any such protection under S. 229 (2) Lands and Titles Act, PN. 262 must be rectified on the ground of mistake/fraud. That would mean PN. 262 be reverted to be part of the foreshore and seabed.

Alternative mistake/fraud.

332. I would have fore shaken this second part as unnecessary because I have found mistake/fraud in the first part proved on the balance of probability.
333. However, to give justice to the case I will consider the issue raised to some extent. It appears the issues concern the alleged early mistake/fraud which I have touched on in the topic “creation of PN. 262”.
334. In any event the same issue of no instruction to survey was raised and there was no survey of the disputed land prior to creation of PN. 262. That has been analyzed under the microscope and found to be true.
335. In fact, the record reveals survey connected to PN. 262 was a survey for a parcel in Vura, Honiara. The Claimant challenge that Top Timber has the onus to proof in documentary evidence but there was none.
336. The facts which are similar to the ones stated under the heading creation of PN. 262, is that it started in 2003 when Frank Marape owner of PN. 191-056-269 situated in Vura requested an extension to that parcel. This required a survey of the area. On 8^th August Mr. Marape filed in an Instruction to Survey Form to request the survey at Vura.
337. It would appear the area for extension was given Lot No. 3192 because reference showed I to S was for Lot 3192/V1/H. After then, nothing was heard. The Claimant produced a cadastral map showing Lot 2781 and lease register of PN. 191-056-269 of Marape. If that is correct why Lot 3192, a mistake?
338. Four years alter on 30^th November 2007 Commissioner of Lands applied for subdivision of land in block 192-010-1 in Ranadi, ie; PN. 254. That application proposed that PN. 254 be subdivided into PN. 260 to 265 (6 new parcels). Only one proposed new parcel was not given a Lot number. At that point in time PN. 262 was given Lot 3192.
339. By 2007 Lot 3192 had been assigned to Vura. Subdivision went ahead and PN. 254 was cancelled and replaced by PN 260 to PN 265, and hence PN. 262 (lot 3192) came into existence in 2007.
340. Later in August 2008 the Office of the Surveyor General noted the discrepancies with the creation of PN. 262. An investigation was carried out and on 29^th August 2008, the Chief Surveyor made his findings.
341. The result of findings by the Chief Surveyor it was the first correspondence that kick start further correspondences which I have referred to above. He stated that survey record for existence of Lot, 3192/VI/H was for Vura and not at Ranadi was raised in 1 to S 38/2003 for extension of parcel 191-056-269 Lot 3192 /V1/H for W. F. Marape.
342. The above finding was related to the Acting Commissioner of Lands letter on 3^rd September 2009, she also ridicules the situation.
343. In early 2014 the Registrar of Titles enquired about PN. 262. In respond on 25^th February 2014, the Chief Survey related the same stint found in his conclusion. In his last paragraph he stated, if the Instruction to Survey was for Vura but the plotting was done at Ranadi then something has gone wrong with the process between the Surveyor, the examiner and the draftsman in the Ministry”.
344. As a result, the Deputy Registrar of Titles issued the notice to Commissioner of Lands to rectify and cancelled the PE in PN. 262 on 28^th February 2014. The registrar gave 3 reasons in his letter of notice. He noticed there was no instruction on record authorizing the surveying and creation of PN. 262. And in the absence of Instruction to Survey the parcel should not be drawn in the registry map. The drawing of the map in the absence of Instruction to Survey, the parcel should result in not being drawn in the registry map. The drawing of the map in the registry was a misrepresentation by Commissioner of Lands and Survey General.
345. The same finding of the Surveyor General was noted in the Commissioner of Lands letter to Registrar of Titles in March 2014. She commented that survey and registration of parcel 192-010-262, Lot 3192/V1/H was conducted erroneously. Normal standard operation procedure was by passed on the whole process was totally disregarded.
346. After several correspondences involving the Cabinet Paper and the late Minister Onika’s action, the Deputy Registrar of Titles in April 2014, deregistered PN. 262.
347. The law relating to mistake/fraud has been expressed above. The mistake in this case was created in 2007 with what appeared as a purported survey done by SOLAND of a different land in Vura.
348. Any subdivision cannot take place without physical survey. During survey the surveyor will pick existing boundaries of parcel to be sub divided and plot boundaries of proposed parcel. Physical placement of new concrete pegs in the ground should show the parameter of the new parcel. Only then the registry map be amended to reflect new parcel.
349. None of those steps were taken. Yet the Claimant states the original HWM registered in 1971 was sufficient. It did not change as shown by the block plan. The Commissioner of Lands was entitled to use the HWM as northern boundary, so survey not required, it only follows the HWM.
350. The HWM which the Claimant insisted on is right in the ocean in 2007. The other boundary identified toward the dry land was also floating on water. So where would concrete pegs be grounded. The Claimant is arguing the impossibility. The excavation done according to evidence from 1982 to 1988 and not from 1988 to 1992. That was about 25 years ago from 2007 backward. The cut off line was the 1999 HWM which both parties accepted as the right HWM. This HWM was the seaward boundary for PN. 224 and PN. 228. PN. 262 was beyond the two parcels into the seabed.
351. There is no denial that subdivision of PN. 254 was authorized by the Commissioner of Lands, Surveyor General and the Registrar of Titles. Those were paper works. However, when it comes to actual physical work there was no survey at all. The evidence has revealed so.
352. The instruction to survey found in the file was for extension of a land at Vura, Lot 3192. It did not authorize a survey to be done at Ranadi foreshore and seabed.
353. The Claimant submits by treating Lot 3192/V1/H meant to Vura land for PN. 262 at Ranadi as an error in Lot number. It ought to be noted by the correspondences from the Commissioner of Lands office and Registrar of Titles office that error went to the heart of creation of PN. 262. As a result the error was not authorized at the first place. Until today no official from those offices explain what exactly happened.
354. The law in Lands and Titles Act in respect of processes which the Claimant refers to only apply to creation of new parcel properly authorized. Where there is no authorization those provisions and processes do not apply. The mistake arose before the process started.
355. The Claimant and its Counsel attempted to explain this mystery; however, they are not experts in the subdivision and registration processes. Only the officials who are familiar with the processes could conclude how PN. 262 was created without survey and they had described it as mystery, misrepresentation, something gone wrong with the process, erroneous, standard procedures were by passed, the whole process was being totally disregarded and administrative mishap.
356. Those sentiments by the public officers can only mean one thing, creation of PN. 262 was done by fraud. Only fraud involves underhand tactics no one can witness and is able to bypass processes.
357. Therefore, registration of PN. 262 in the name of Commissioner of Lands in 2007 was obtain by mistake and fraud, making registration of Fix Term Estate in the name of the Claimant in 2011 obtained by mistake and fraud.
358. Therefore, both Perpetual Estate and Fix Term Estate must be cancelled under S. 229 (1) of Lands and Titles Act.

Further mistake/ fraud.

359. The law on rectification also applies in this situation. It is pleaded that the restoration of the Claimant’s FTE in PN 262 was also made by mistake/fraud. After the deregistration by the Deputy ROT of PN. 262 in 2014 that parcel ceased to exist and the Claimant commenced CC 102/14 to challenge that action. In June 2015 the Crown and the Claimant signed a consent judgment granting relief sought by the Claimant against the Crown itself. Based on that consent judgment the Claimant’s FTE title to PN. 262 was restored on 21^st July 2015. At that time CC 102/14 was still progressed for trial.
360. The mistake is very clear in this case. The restoration of PN. 262 was based on the consent judgment which later over ruled by the court on 16^th April 2018 and ordered it as null and void.
361. The re-registration of PN. 262 in 2015 was based on invalid consent judgment, was a mistake caused directly by the Claimant and its Counsel who would have provided a copy of that consent judgment to the ROT to procure the registration. In those circumstances, the Claimant cannot rely on the protection of S. 229(2) of the LTA.
362. Therefore, the counter claim in CC 531/16 is made out on the balance, and hence I must grant.

The Judicial review claim.

363. The Crown do not oppose the claim at trial. In fact, it had withdrawn without notice and without an order of Court.
364. A surprising event occurred when the Counsel for the Claimant and the Solicitor General in 2015, prematurely terminated CC 102/14 in favour of the Claimant through a consent judgment. The Crown took that position based on a purported statement of Admission.
365. On 16^th April 2018 this Court ruled on the validity of the judgment, it did not accept the statement of Admission as a proper document and made a finding that the Crown had not properly amended its earlier defence by consent or leave. This means the Crown is still bound by that defence which denies the Claimant’s claim for judicial review. Therefore, it is not for Top Timber to defend the action by the crown.

Conclusion.

366. The issues as whether or not the cabinet and Onika (former Minister) were entitled to direct the Deputy Registrar of Titles to de-register PN. 192-010-262, is an issue I have dealt with in paragraphs above.
367. The issue whether or not the Registrar of Titles have power to de-register the PN.192-010- 262 is again an issue I have dealt with above.
368. The issue whether or not the rules of natural justice should have been followed is an issue I have dealt with above as well.
369. Any mistake by the Crown in 2014 resulting in de-registration of PN.192-010- 262 is an arguable point which engages bulk of determination in this judgment, because PN. 192-010-262 was created by mistake and fraud in the first place in 2007. That mistake/fraud occurred first in time so that PN. 192-010-262 should not have existed in the first place.
370. All in all, based on all the narratives and reasons compiled in this judgment, PN. 192-010-262 should be cancelled because of fraud/mistake. I must therefore dismiss the claim for judicial review, and uphold the counter claims.

Orders:

1. That the second amended claim for judicial review in CC. 102 of 2014 filed on 9^th June 2018 is hereby dismissed.
2. That the amended claim in CC 531 of 2016 filed on 3^rd March 2017 is hereby dismissed.
3. That the counter claim against Civil Case 102 of 2014 and as against Civil Case 531 of 2016 are hereby granted in the following terms:
   1. Damages for common law duty of care granted except for right of way which I dismissed. The amount claims as SBD2, 556,000.00 is hereby awarded to be assessed.
   2. Damages for additional loss of business and costs is granted. The amount of SBD10, 560,000.00 as claim is hereby awarded to be assessed.
   100. The court hereby orders that the Perpetual Estate in PN. 192-010-262 registered in the name of the Commissioner of Lands be cancelled on the ground of mistake.
   4. The Court hereby orders that the Fixed Term Estate in PN. 192-010-262 registered in the name of the Claimant be cancelled on the ground of mistake.
4. Costs of these proceedings be paid to J.J Limited, Top Timber Company Ltd and Wong Chee Kong John on standard basis if not agreed upon.

The Court.
Hon. Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [2013] SBHL 160; HCSI-CC 107 of 2011 (20 December 2013).