Attorney General v Suhara [2021] SBCA 19; SICOA-CAC 25 of 2018 (30 September 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Attorney General v Suhara
Citation:
Decision date:	30 September 2021
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Brown J)
Court File Number(s):	25 of 2018
Parties:	Attorney General v Wilson Suhara and Nelson Kepulu
Hearing date(s):	Paper Hearing August 2021 Sitting
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Gavara-Nanu JA
Representation:	Banuve S for Appellant Tovosia R for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133] S.71 (1) (2) (3), S 79, 78, 75, 77, S 79 (10 (2) (3), S 81, S 257 (3) and (4), S 257 (4) (c) Solomon Islands Civil Procedure Rule 2007 r 12.3
Cases cited:	SMM Solomon Ltd. v Axiom KB Ltd [2016] SBCA 1, Vunagi v Palmer, O’Reilly v Mackman [1983] 2.A, Brown v Dunn
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-10

JUDGMENT OF THE COURT

1. A decision made under Part V Division 2 of the Land and Titles Act [Cap 133] (LTA) which deals with compulsory acquisition of land for public purposes is the genesis of this appeal. In this instance the decision was made to acquire customary land for the purposes of a hydro-electric scheme, referred to as the Tina Hydro Project. That decision to compulsorily acquire customary land under the LTA was made in August 2014 and gazetted on 21 August 2014. Following that gazetted decision an appeal period ran. However, no appeal was ever lodged or heard and so the decision to acquire the land came into effect unchallenged.
2. Landowners whose interests in the acquired land ceased to exist were invited to claim compensation for those lost rights and a number of claims were made. The majority of those claims were accepted by the government, but a minority were not. Of those whose claims were rejected, only one brought an appeal against that rejection.
3. The appeal against rejection of the claim for compensation was heard by the High Court in October 2017 with judgment delivered on 5 December 2017. It is against that decision, allowing the appeal in the High Court and directing the government to pay compensation, that this appeal is brought on behalf of the government.
4. This entire process is governed by the LTA, in particular Part V Division 2. The appeals process is also governed by the more general provisions of the same legislation which have been the subject of other decisions in this Court.
5. The Act provides, inter alia: -

Land may be acquired for public purposes

71.- (1) Whenever it appears to the Minister that any land is required for any public purpose, he may make a declaration to that effect and require the same to be published in such manner as he shall think fit.
(2) The declaration shall specify (either by reference to a plan or otherwise) the boundaries and extent of the land so required, and the general nature of the public purpose for which it is required.
(3) As soon as may be after the declaration has been made, the Commissioner shall cause to be posted, in prominent positions on or near the boundaries of the land specified in the declaration, notices in the prescribed form stating the fact that the declaration has been made and drawing attention to its effect and to the right to claim compensation conferred by section 79 and to the liberties and restrictions conferred and imposed by section 78.

6. The effect of such a declaration is described in section 75 which provides: -

Effect of declaration

75. On the publication of a declaration that land is required for a public purpose, all interests in or affecting the land specified in the declaration shall, subject to section 76, cease to subsist, and, subject to section 78, the right to use, occupy and enjoy the land and any buildings thereon and its produce shall vest in the Commissioner for and on behalf of the Government, and where the land is registered land the Registrar shall, upon application to him by the Commissioner accompanied by proof of the declaration, make a note in the registers relating to the interests in that land that the perpetual estate therein free from all other interests is vested in the Commissioner subject to appeal under section 76.

7. Section 77 deals with registered land and so is not applicable here, and section 78 deals with former owners remaining in occupation until given notice to vacate. Nothing provided there affects this land or this appeal.
8. Section 79 provides: -

Claim for compensation

79.- (1) Any person who claims to be entitled to an interest which, by reason of section 75, ceases to subsist may within three months from the date of the publication of the declaration under that section, or within such further period as the Commissioner for good reason may allow, claim compensation from the Commissioner.
(2) Within three months of any claim, the Commissioner shall, after considering the claim, and, if the claimant so desires, hearing the claimant, reject the claim or make in the prescribed form an offer to pay to the claimant such amount of compensation as he may think proper, and shall serve upon the claimant notice of the rejection of his claim or the offer:
Provided that where the offer is accepted by the claimant the commissioner shall cause payment to be made within three months of the receipt by him of such acceptance.
(3) If the claim has been rejected or the claimant is dissatisfied with the offer, he may within three months from the service upon him of the notice or the offer as aforesaid, appeal to the High Court, which may confirm the Commissioner's rejection of the claim or his offer, or assess such amount of compensation (if any) as to it may seem just, or remit the matter to the Commissioner with a direction that an offer be made under subsection (2).

9. Section 81 deals with payment of any compensation awarded by either the Commissioner or the High Court. There is thereafter provision for temporary occupation of land and for, in the case of customary land, the possibility of granting former owners alternative land in lieu of compensation.
10. Finally, the legislation sets out how the amount of compensation should be assessed when it is to be determined by the High Court. There is no provision within Part V Division 2 allowing for an appeal to the Court of Appeal from the decision of the High Court.
11. Part XXVIII Miscellaneous makes clear that in the absence of any express provision to the contrary, the High Court has exclusive jurisdiction in all matters and proceedings of a civil nature arising under this Act or involving its interpretation.
12. Section 257 (3) and (4) deal with the exception allowing an appeal to proceed in the Court of Appeal It provides: -
    • (3) Except where otherwise expressly provided, a decision, whether given in an original proceeding or on appeal, of the High Court given in any matter or proceeding arising under this Act or involving its interpretation, shall, subject to the provisions of subsection (4), be final and conclusive and not subject to any appeal.
    • (4) Any person aggrieved by any such decision as is referred to in subsection (3), may, within three months after the issue of the decision, appeal to the Court of Appeal, if, and only if-
      • (a) the decision was not given by the Court in exercise of its jurisdiction under sections 19, 57, 66, 115(6) or 140(2); and
      • (b) some question other than a question of fact is raised by the appeal; and
      • (c) the person aggrieved obtains leave to appeal either from the High Court or from the Court of Appeal.
13. This appeal was not started within three months after the issue of the decision complained of, nor was it started with the grant of leave under section 257 (4) (c). It does, however, comply with subsections (a) and (b) of 257 (4).
14. Prima facie this appeal is not in compliance with the applicable statutory framework as set out above, and this issue was raised prior to this Court embarking on the substance of the appeal. It is not the first time that this Court has been asked to decide upon the meaning of the provisions.
15. The Appellant seeks to support a submission as to the validity of the appeal relying upon a decision of this Court in SMM Solomon Ltd. v Axiom KB Ltd^[1]. In that case, this Court made it clear that the requirement to obtain leave as described in s257 (4) (c) was not limited by the earlier words in s257 (4) as being within three months. It was accepted that provided the appeal had been filed within the three-month period, the necessary leave could be granted outside of that period. In particular at paragraphs 94 and 95 this Court said: -
    • 94. It may be that section 257, worded as it is and not specifically requiring that leave be granted within the three-month period but requiring that the appeal be commenced within that period, failed to acknowledge the general rule that without leave an appeal by leave is not properly commenced until that leave is obtained. Be that as it may, in the absence of a clear and unambiguous provision that leave must be obtained within the three-month period, it would, in our view, be wrong to remove the right of appeal when in all other respects there is provision for that appeal.
    • 95. After hearing submissions on this question, we indicated to counsel that we granted leave for the appeal to the extent that it is necessary under section 257 (4) (c) and that the reasons for that decision would be incorporated into the final judgment on the appeal. The conditions precedent referred to in section 15 of Cap 6 have not been complied with but in the exercise of the discretion under section 16 the appeal is entertained by granting leave outside the three months referred to in section 257 Land and Titles Act and by deeming the notice of appeal filed on 24 October 2014 to have been filed with leave for the reasons set out above.
16. Thus, the decision in SMM Solomon does not assist the appellant in this instance as neither leave was obtained nor the appeal itself filed within the necessary three months following the decision. This is not the situation as described in SMMS where the appeal itself was filed within the three-month period.
17. Before finally leaving the question of whether this appeal fails because of the s.257 restriction it is also important that a further question is considered and that is a question discussed in Vunagi v Palmer.^[2] In that case, at paragraph 15 this Court noted the earlier application of the principles flowing from the line of authorities starting with Anisminic Ltd v Foreign Compensation Commission.^[3]
18. In Vunagi v Palmer this Court said: -
    • The effect of Anisminic is best described for the purposes of this appeal through the words of Lord Diplock in O’Reilly v Mackman [1983] UKHL 1; [1983] 2 A C 237 at 278 as: -
    • “The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported 'determination', not being a 'determination' within the meaning of the empowering legislation, was accordingly a nullity."
19. The relevance of this principle is brought into sharp focus when reading the direction from the High Court following the decision to allow the appeal. Recalling the circumstances of this appeal, against a decision not to award compensation under section 76 LTA, the High Court was empowered under section 79 (3) to agree with the decision of the Commissioner to reject the claim or assess the amount of compensation or remit the matter to the Commissioner for him to assess the amount. Compensation under section 79 is limited to an interest (in land, here customary land) which had ceased to exist by virtue of the declaration.
20. The direction made by the trial judge was that the matter be remitted to the Commissioner for him to assess “compensation for the drilling activities carried out on Nala land. The trial judge did not remit the matter to the Commissioner for an assessment of compensation for the loss of interest in land which had ceased to subsist. For all practical purposes, the direction to assess was for damages as might have been claimed in a trespass and damage claim, not a section 79 appeal.
21. In those circumstances, the trial court was not exercising its jurisdiction under section 79 or any other power under the relevant legislation. Its decision was ultra vires any power conferred on it by the LTA. The determination by the High Court in this instance was a nullity.
22. The same conclusion may have been arrived at were it necessary to examine in detail the conduct of the trial. Although the matter has not been raised before us, from a reading of the judgment it appears that evidence was received through the use of sworn statements. Such use is permissible under the relevant Civil Procedure Rules, but not to the extent that material can be regarded as in evidence when contained in a bundle of “unaccepted” documents, to which the trial judge had access by consent of the parties. It may have been helpful to the parties to set out where in the judgment references can be found to ‘unaccepted’ or ‘not agreed’ material but as the trial judge found it unnecessary to number his paragraphs that option becomes difficult. Page 2 at its midpoint and the penultimate paragraph of the judgment afford but two examples.
23. Sworn statements included in a court book under Rule 12 Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) by consent may be received as evidence without being proved (Rule 12.3) but that does not apply to ‘not agreed’ material which the trial judge appears to have taken into account as if it were evidence.
24. This Court has said enough in the three preceding years about trials conducted on ‘paper’ and without fail has condemned such trials as unfair and contrary to the principle set out in Browne v Dunn.
25. Bringing a nullity to this Court on appeal is not governed by the provisions of section 257 and thus we direct that the appeal may proceed. Based as it was, on evidence improperly put before the trial judge resulting in an order which the High Court was not entitled to make under the provisions it purported to exercise suggests that the appeal may be determined without further consideration. Indeed, to try and comment on the issues without knowing what material is in evidence would seem foolhardy.
26. This appeal is allowed. We are grateful to counsel for the additional work in making submissions on jurisdiction during which we were told of attempts to settle this matter. Should that be the case we would support such a course. A lot of time has necessarily passed until this Court was in a position to make its determination. We would be content for the parties to file a draft order disposing of this matter by consent, given that the appeal has now been allowed rather than simply remitting the matter to the High Court for further and proper determination, but we will be guided by counsel in that matter. Should counsel wish to take the consent order course, an indication should be given to the Deputy Registrar of the Court of Appeal within 14 days of delivery of this decision failing which an order remitting the matter to the High Court will issue. In the absence of a consent order disposing of this appeal, we would order costs of and incidental to the appeal to be paid by the Respondent.

Goldsbrough (P)
Hansen (JA)
Member
Gavara-Nanu (JA)
Member

---

^[1] [2016] SBCA 1
^[2] [2019] SBCA 2
^[3] [1968] UKHL 6; [1969] 2 AC 147