Lever Solomon Ltd v Solomon Islands Electricity Authority [2017] SBCA 3; SICOA-CAC 29 of 2016 (5 May 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	Appeal from Judgment of the High Court of Solomon Islands (Brown J)
COURT FILE NUMBER	Civil Appeal Case No 29 of 2016 (On Appeal from High Court Civil Case No. 71 of 2016)
DATE OF HEARING	27 April 2017
DATE OF JUDGMENT	5 May 2017
THE COURT	Goldsbrough P Ward JA Wilson JA
PARTIES:	LEVER SOLOMON LIMITED -v- SOLOMON ISLANDS ELECTRICITY AUTHORITY
ADVOCATES: APPELLANT: RESPONDENT:	G Suri B Upwe
KEY WORDS:	Trespass – lawful authority – Electricity Act
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED	Dismissed
PAGES	1-6

JUDGMENT OF THE COURT

1. The appellant owns lands in Lungga and Henderson which are occupied by squatters.
   
2. The respondent is a statutory corporation under part II of the Electricity Act cap. 128. It erected poles and hung transmission and distribution or supply cables over the appellant’s lands for the purposes of supplying electricity to the squatters without the appellant’s prior consent.
   
3. In CC No 71 of 2016 the appellant claimed damages for breach of a contract between it and the respondent dated 24 February 2014, as well as declarations that the erection of the poles on its lands and the hanging of the cables over its lands constituted trespass and an order that the respondent pay damages for losses suffered prior to the disconnection of electricity services to the squatters.
   
4. On 30 September 2016 Justice Brown dismissed the proceeding after hearing argument on points of law raised in the defence. His Lordship found that the agreement was illegal, and that there had been no trespass.
   
5. This is an appeal against that part of the judgment which relates to trespass.
   

The reasoning of the primary judge

6. His Lordship held that pursuant to s 34 of the Electricity Act the respondent was entitled to carry out its function to provide electricity without hindrance. He continued –
   

The rights to be found in s 34 are not conditional, as argued because of the notice entitlement for landholders whereby 14 days’ notice of intention must be given, for that notice does not prevent or otherwise curb the Authority’s power to enter land to carry out its work.

Trespass

7. The elements of trespass were succinctly summarised in Gesring Gabing Bob v Stettin Bay Lumber Company Limited [2008] PGNC 120. To succeed in an application for trespass to land, a claimant must prove –
   
   • (a) that the defendant entered land, either directly or indirectly;
   • (b) that the defendant did so by some intentional act;
   • (c) that the defendant had no lawful authority;
   • (d) that the claimant was in lawful possession of the land; and
   • (e) that the claimant’s enjoyment of the land was interfered with.
     
8. The present case turns on whether the respondent had lawful authority to enter the appellant’s lands.
   

Submissions for the appellant

9. Counsel for the appellant submitted that the respondent had no lawful authority to enter private lands without prior authority or permission.
   
10. His submission continued as follows. Section 13(1) sets out duties of the respondent, and the performance of those duties is dealt with elsewhere in the Act. s 13(1)(d) expresses a duty, but does not authorise entry into land without permission. Section 13(2) sets out facilitating powers. The power to acquire real property in paragraph (d) of subsection (2) negates any implication of entry without permission. When pressed by the Court whether he was submitting that it was necessary for the respondent to buy the land on which every pole was erected, he submitted that paragraph (d) should be read broadly, and that acquisition of a right of user would be enough.
    
11. He submitted that his Lordship misconstrued s 34. The requirement in the proviso to s 34(1)(d) that the respondent give 14 days’ notice prior to entry denies the respondent any right to enter land without permission. The purpose of the notice requirement, he submitted, is to give the owner an opportunity to agree or object. Otherwise, it would serve no useful purpose.
    
12. Lastly, he submitted that agreements made between the respondent and the squatters were contrary to public policy and so unenforceable. His Lordship erred in sanctioning the respondent’s receipt of revenue from illegal occupation of the appellant’s lands by the squatters: no court would lend its aid to someone whose cause of action was founded upon an immoral act. (See Knight v Attorney General [2005] SBHC 6.)
    

Submissions for the respondent

13. Counsel for the respondent submitted that his client entered the appellant’s lands under lawful authority.
    
14. He submitted that the respondent has the power to enter any lands when carrying out its functions under the Act. Section 13(1)(d) expresses a duty, which is accompanied by an implied authority to do what is reasonably necessary for carrying out that duty. The respondent has power to enter private lands by virtue of s 13(2)(b) and s 34(1)(a) of the Act, and it has powers to carry out its distribution network under section s13(2)(b) and 34(1)(d).
    
15. In his submission his Lordship interpreted s 34 correctly. The proviso to s 34(1)(d) does not condition the respondent’s power to enter land and carry out its work.
    
16. Because the respondent’s entry into the appellant’s lands was authorised by the Act, any benefit it received from that entry and from use of the lands was lawful and not contrary to public policy. His Lordship’s judgment did not sanction illegal occupation of the appellant’s lands by squatters or the receipt of revenue from that illegal occupation.
    

Discussion

17. Section 13 of the Electricity Act provides relevantly –
    

(1) Subject as hereinafter in this Act provided, it shall be the duty of the Authority –

(d) to promote and encourage the generation of electricity with a view to the economic development of Solomon Islands.

(2) For the purposes of subsection (1), the Authority may -

(a) subject to the provisions of this Act, generate, transmit, transform, distribute and sell electricity either in bulk or to individual consumers;

(b) purchase, construct, reconstruct, maintain and operate supply lines, generating stations, transformer stations and all other appropriate stations, buildings and works;

(d) acquire, in accordance with the provisions of this Act or otherwise, any property, real or personal, which the Authority deems necessary or expedient for the purposes of constructing or extending or maintaining any installation or otherwise for carrying out its duties and functions under the provisions of this Act.

18. Section 34 provides relevantly –

34. (1) In the exercise of the powers conferred upon the Authority or a licensee by the provision of this Act, the Authority or licensee, as the case may be, may by their officers, agents or servants, do all or any of the following –

(a) enter, survey and take levels of any land or any part thereof and also dig out and remove any earth, stone, soil, and gravel whatsoever for the construction, maintenance or alteration of any line or part thereof or for any other purpose in connection with the works authorised by this Act.

(d) after consultation with the local authority, erect and maintain posts, staywires, poles or pillars in or upon any land and attach, place and maintain wires, lines, conduits and other appliances and things necessary for the works in, under, through or over, across or upon any street, road, land, building, houses or premises.

Provided that before the exercise of any of the powers conferred by the provisions of this paragraph, notice of the intention of the Authority or the licensee, as the case may be, shall be served on the owner of owners or other interested party at least fourteen clear days before the exercise of such power.

19. By s 13(1)(d) of the Act, the respondent has a duty to promote and encourage the generation of electricity with a view to the economic development of the country. Section 13(2) sets out a series of facilitating powers. In the circumstances of the present case, the relevant paragraph of subsection (2) is paragraph (b). The power to acquire property in paragraph (d) is not relevant to whether the respondent may enter private property without permission.
    
20. The respondent’s entry into the appellant’s lands was authorised by paragraph (a) of s 34(1), and its erection of poles and hanging of cables was authorised by paragraph (d) of that subsection. In the present case, there is no issue about consultation with the local authority.
    
21. The respondent was not obliged to give the appellant notice before entering its lands pursuant to paragraph (a) of s 34(1). The proviso about prior notice to the owners of the land is a proviso to paragraph (d) and not to the whole of subsection (1). This is clear from the wording of the proviso “powers conferred by the provisions of this paragraph”. Moreover, it is apparent from the structure of the entire subsection as a series of paragraphs, all but the first of which have provisos to them.
    
22. We do not accept that the proviso would serve no useful purpose if it were not to allow an owner to allow or disallow the erection of poles on its land and the hanging of cables over the land. On the contrary, it gives an affected owner an opportunity to take steps to protect his property from damage which might result from the way the work is performed, and it gives him an opportunity to negotiate a time for the work to be done which will not be inconvenient.
    
23. On the proper construction of the proviso to paragraph (d) of s 34(1), prior notice to the landowner is not a condition of the respondent’s power to erect poles and hang cables, and non-compliance with the prior notice requirement does not render the erection of poles and hanging of cables unlawful. We accept counsel for the appellant’s submission that the proviso is within that category of provisions described by Brennan CJ in the following passage in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 373-374 [38] -
    

A third kind of provision must be distinguished from provisions which restrict the ambit of the power and provisions which prescribe conditions on its availability for exercise. A provision may require the repository or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but non-compliance with the provision does not invalidate a purported exercise of the power: the provision does not condition the existence of the power. Such a provision has often been called directory, in contradistinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period. The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory.

(Emphasis added. References omitted.)

24. As the respondent’s entry into the appellant’s lands and its erecting poles and hanging cables was lawful, there is no basis for finding that any financial return it received from supplying electricity to the squatters was contrary to public policy. The legality or otherwise of the squatters’ occupation of the lands is a matter between the appellant and them, and has no bearing on the lawfulness of the respondent’s conduct.
    

Disposition

25. The appeal should be dismissed with costs.
    

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Goldsbrough P

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Ward JA

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Wilson JA