Gu v Nagu [2016] SBCA 12; SICOA-CAC 6 of 2015 (22 April 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Maina J)
COURT FILE NUMBER:	Civil Appeal Case No. 6 of 2015 (On Appeal from High Court Civil Case No. 190 of 2014)
DATE OF HEARING:	13 April 2016
DATE OF JUDGMENT:	22 April 2016
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	Gu - v - Nagu
ADVOCATES: Appellant: Respondent:	Mr. Pitakaka with J Taupongi Mr. Donald Marahare
KEY WORDS:	Land & Titles Act section 115 Civil Procedure rule 7-2
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED	Discontinued
PAGES	1 - 5

JUDGMENT OF THE COURT

1. The appellant is the registered holder of the fixed term estate in parcel 191-032-136 (-136) which is situated in the Bahai area of Kukum in Honiara. He has held it since September 2009. The respondents are the registered owners of the fixed term estates in adjoining parcels numbers 191-032- 85, -86, -90, -91 and -92. Parcel -136 had been left undeveloped since 1999 and the respondents had been using it for access to their land. In 2009 when it was purchased by the appellant, the respondents and a number of other families in the area had objected to the sale to the appellant because it was felt that any development of -136 would impede access to their properties.
   
2. On 4 March 2014, lawyers representing the respondents applied to the Commissioner of Lands to grant a right of way or alternative reasonable means of access through -136. Whilst they were still awaiting a decision from the Commissioner of Lands, construction work had commenced on -136 and was obstructing the respondents' access.
   
3. On 25 June 2014, the respondents made urgent application for interlocutory orders to prevent the work continuing and, on 11 March 2015, orders were made by Maina J restraining the appellant from further construction (order 1), permitting continuing access by the respondents (order 2) and ordering the Commissioner of Lands to consider and determine the respondents' application within 28 days (order 3). Orders 1 and 2 were to continue "until further orders of the court or pending the determination of the [Commissioner of Lands] pursuant to section 115(2) of the Land and Titles Act."
   
4. Para 4 or the Order stated:
   
   1. "4. Subject to the outcome of the determination by the [Commissioner of Lands] outlined in order 3 hereof, the [present respondents] are hereby granted leave to file an appeal in the proceeding by way of a claim for the purposes of section 115(6) of the Act."
      
5. On 13 March 2015, the Commissioner refused the respondents' section 115 application.
   
6. Section 115 of the Land and Titles Act provides a procedure whereby unresolved disputes over rights of way can be referred by the person requiring the right of way to the Commissioner to decide. By subsection (6), any person aggrieved by the Commissioner's decision may appeal to the High Court within three months of being informed of the Decision.
   
7. The present appeal listed before this Court was brought by the appellant against the orders of Maina J on the basis that the procedure under section 115 had not been completed and any appeal to the High Court under subsection (6) could only be against the Commissioner's decision.
   
8. When the case was before this Court, Mr Marahare agreed that, as no appeal pursuant to the leave referred to above had been brought from the Commissioner's decision under section 115, there was no longer any cause of action in the High Court. In light of that admission, Mr Pitakaka requested that this appeal be discontinued.
   
9. Noting the concession made by counsel for the respondents, the Court ordered that the appeal be discontinued and that the respondents pay the appellant's costs in this Court and in the court below.
   
10. We indicated that we would deliver a short judgment on procedure in such cases which we now do.
    
11. Section 115 of the Land and Titles Act sets out a clear procedure by which unresolved disputes over rights of way may be determined by the Commissioner of Lands. If the provisions of the section are carefully followed they should give rise to no difficulty over the process. Any lawyer instructed to conduct such an application should bear in mind the relatively short time allowed under subsection (6) to appeal the Commissioner's decision.
    
12. Disputes over rights of way may give rise to serious problems if not resolved quickly and the time taken to receive a decision in the present case causes this Court considerable concern. When such delays occur, there is a significant danger that applicants who have been deprived of a claimed right of way may resort to more desperate means of resolution.
    
13. What, then, can a person do in such a case to try and protect his position? As counsel have acknowledged in this case, if there is no proceeding before the High Court, interlocutory relief may not be available.
    
14. Under the 2007 Civil Procedure Rules, provisions are made for interlocutory relief and sub-rule 7.2 provides that application may be made by any party for an interlocutory order at any stage before a proceeding has started (7.2(a)(i) ), during a proceeding (7.2(a)(ii) or after a proceeding has been dealt with (7.2(a)(iii) ) and whether or not the party seeking it had mentioned an interlocutory order is the claim, response or pleading (7.2(b) ). In any such case where the matter is sufficiently urgent it may be made orally (7.13)
    
15. The nature of an application under sub-rule 7.2(a)(i) requires special considerations and any such application must be made in strict compliance with the special provisions in sub-rules 7.9 to 7.12 and, when it is an oral application, sub-rule 7.13.
    
16. In all such cases, of course, there has to be a cause of action in which protection of an interlocutory order is necessary. The "new" rules have been in use for some years now and counsel should ensure they are fully cognizant of all the provisions.
    

Order:

Appeal discontinued.
Respondents to pay the appellant's costs in this Court and in the court below.

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Goldsbrough P

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Ward JA

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Hansen JA