Winner Properties Ltd v Permanent Secretary of Communication and Civil Aviation [2023] SBCA 1; SICOA-CAC 17 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Winner Properties Ltd v Permanent Secretary of Communication and Civil Aviation
Citation:
Decision date:	28 April 2023
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Faukona, DCJ)
Court File Number(s):	17 of 2022
Parties:	Winner Properties Limited v Permanent Secretary Ministry of Communication and Civil Aviation, Commissioner of Lands, Registrar of Titles
Hearing date(s):	20 April 2023
Place of delivery:
Judge(s):	Goldsbrough; President Palmer, CJ Hansen; JA
Representation:	Rano W and Ale M for the Appellant Pitry B for First Second and Third Respondent
Catchwords:
Words and phrases:	Civil Procedure Rule 15.3.16 Conference, Procedure, Arguable case, Trial
Legislation cited:
Cases cited:	Anthony Chee Ming Wong v. Attorney-General & Commissioner of Lands, Korean Enterprises Ltd v. AG [2014] SBCA 4
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-8

JUDGMENT OF THE COURT

1. This is an appeal by Winner Properties Limited, (“the Appellant”) against the orders of the Court below in which the Court dismissed, at the Rule 15.3.16 Conference stage, the claim for judicial review filed on the 10^th October 2019 and awarded costs in favour of the Respondents.

Brief background.

2. The Appellant is the titleholder of the Fixed-Term Estate in parcel number 192-017-010 (“the FTE”) at Henderson, East Honiara.
3. By letter dated 9^th September 2019, the Commissioner of Lands issued a Notice of Resumption of the said FTE, pursuant to Clause 8 of the 1^st Schedule of the Grant Instrument dated 27 June 1998 for the purpose of taking back the land for roads or other public purposes.
4. Clause 8 inter alia states: “The Grantor has the right, on giving one month’s notice in writing to the Grantee, to take back such parts of the land as may be needed for roads or other public purposes.”
5. It is not in dispute that the land was sought to be resumed for purposes of extracting gravel for use at the Honiara International Airport.
6. It is also not in dispute that the Appellant takes issue with the ground relied on that the extraction of the gravel was for a public purpose. They rely on the case authority of Korean Enterprises Ltd v. AG^[1], which defines “public purpose” as:
   • “There does not appear to be any single accepted definition of “public purpose”. In general terms it must be something for the direct general benefit of the community such as the provision of a service by the Government. It would not be sufficient that there was, for example, an indirect benefit to the community through an increase in government revenue from a commercial activity or an increase in employment.”
7. The Appellant takes issue with the extraction of gravel as being for a public purpose and that it would directly benefit the community.
8. As soon as practicable after the defence has been filed and served, a conference is to be called under Rule 15.3.16 of the Solomon Islands (Civil Procedure) Rules 2007 (CPR). This matter came before such a conference. Itis argued on behalf of the Appellants that the primary purpose of a Chapter 15, rule 15.3.16 conference is for the Claimant to satisfy the court of the four (4) conditions set out in rule 15.3.18 of the Civil Procedure Rules, in particular paragraph (a), which requires the Claimant to show that it has an arguable case.
9. Rule 15.3.18 of the Civil Procedure Rules provides:
   • (a) “The court will not hear the claim unless it is satisfied that:
   • (b) the claimant has an arguable case; and
   • (c) the claimant is directly affected by the subject matter of the claim; and
   • (d) there has been no undue delay in making the claim; and
   • (e) there is no other remedy that resolves the matter fully and directly.”
10. The Appellant says that once an arguable case has been established together with the other three matters therein to the satisfaction of the court, the matter should then progress on to the next stage being, for determination of the claim or for directions and for a trial date to be fixed (see rule 15.3.21).
11. On the other hand, if the court is not satisfied under rule 15.3.18 regarding the conditions set out therein, it can refuse to hear the claim.
12. At rule 15.3.19, it also provides that the court may at the conference hearing:
    • (a) consider the papers filed in the proceedings; and
    • (b) hear argument from the parties.
13. Rule 15.3.20 in turn gives power to the court to decline to hear the claim and have it struck out if it is not satisfied about the matters set out in rule 15.3.18.
14. Counsel Mr. Pitry, for the Respondents submits that the learned Deputy Chief Justice was entitled to find that there was no arguable case before him on the papers filed and have the claim dismissed.

The Appeal.

15. The substance of the Appeal can be summarised as follows, that the learned judge erred in law and fact when he proceeded to assess on the merits that the extraction of gravel for use in the rehabilitation and expansion of the Honiara International Airport was for public purpose without the benefit of relevant evidence and argument that would have been provided in the context of a contested trial.
16. We turn now to deal with each ground of appeal herewith.

Appeal Ground 1 (a) and (b):

1. Erred in the application of rule 15.3.18 of the Solomon Islands Courts (Civil Procedure) Rules 2007 in that:
   • (a) The Court ought to be satisfied that matters outlined in (a) to (d) does not warrant the matter proceed to trial; and
   • (b) The matters to be decided are whether the proceedings ought to proceed to trial after the Claimant satisfies the Court that it had the requisite factual basis to put the matter to trial.
17. We are satisfied this ground should be allowed in that all that was needed to be established at such a conference hearing is for the Claimant (Appellant) to show to the satisfaction of the court that contested matters exist, which will need to be considered further in detail at trial.
18. We do not need to repeat that the issue in contention for determination was whether the extraction of gravel was for a public purpose and justified the resumption of the F-TE by the Commissioner of Lands.

Ground 3. In furtherance to appeal ground 1 above, the filtering process under Rule 15.3.18 is meant to ensure that the Claimant does have a case as opposed to it being frivolous or vexatious. Accordingly, the Court merely looks at the facts and where complicated legal issues are raised, those matters needed to be tried.

19. This appeal ground restates the approach that should be taken by the court where it has been shown an arguable case subsists on the facts and complex legal issues raised that should appropriately be determined at trial or directions issued for trial.

Appeal Ground 4. Erred in dismissing the proceeding in setting out to deal with the legal issues in full without inviting proper and full legal arguments from counsel.

20. Again we are satisfied this ground should be allowed in that the Appellant clearly was not given the opportunity to raise in full whether by calling evidence or providing legal argument in support of their claim on the contested issue(s) before the court.

Appeal Ground 5. Alternatively, the learned Judge erred in law and fact in treating the Chapter 15 conference as if it was a trial when all he had to do was ascertain whether there is an arguable case or serious issues for trial.

21. Again this ground should be allowed for the same reasons given above.

Appeal Ground 6. In encroaching into the merits of the case, the learned judge erred and or misconceived himself as to the meaning of, the right of, and the power of the Commissioner of Lands to exercise resumption. In that the question of whether the Commissioner of Lands can or does have power to resume land to extract gravel is within the terms “road reserve or other public purposes”. This is a question of fact as much as law to which proper trial of the issues are required.

22. We agree these are relevant questions for determination at trial after hearing evidence and submissions on the meaning and definition of “road reserve or other public purposes” and whether the extraction of gravel falls within that purpose.

Appeal Ground 7. The judge erred into venturing into the merits when extraction of gravel is a profit that constitutes an overriding interest in the land. Given that the perpetual estate in the land remains with the Commissioner of Lands it begs the question whether resumption was necessary when the Commissioner of Lands could have entered into an agreement with the Appellant to extract the gravels. Whether compensation for the extraction or inconvenience should be paid should be a simple matter of agreement.

23. This ground should also be allowed as the question of whether resumption is appropriate in the circumstances or whether an agreement for the extraction of gravel from the land should have been entered into instead are matters, which should more appropriately be considered at trial.

Appeal Ground 8. The learned Judge misapplied or misconceived himself in the ratio in Anthony Chee Ming Wong v. Attorney-General & Commissioner of Lands, unreported, Court of Appeal, Civil Appeal Case No. 3 of 2010 (11 October 2010). In doing so he had misapplied the law to the facts of the case.

24. In Anthony Chee Ming Wong v. Attorney-General & Commissioner of Lands, the Court of Appeal was dealing with the question of reasonable compensation pursuant to section 8 of the Constitution. While it held that section 8 of the Constitution, which relates to compulsory acquisition of land did not apply, it noted that reasonable compensation under the terms of the grant will apply in the circumstances of the case where resumption had occurred.
25. The view of the Appellant however in this case is that the question of whether resumption was justified in this instance, was an arguable case which needed to be determined in full at trial after hearing all the evidence and arguments in law on the point.

Decision.

26. We are satisfied the learned judge erred when he made determinations on matters which should have been determined after trial.
27. For the reasons set out above, this appeal is allowed, the judgment and orders of the court below quashed, the matter remitted to the High Court for directions and fixing a date for trial under Rule 15.3.21 CPR given that we are satisfied that all four matters prescribed in Rule 15.3.18 CPR are satisfied. If an amended claim is now required, it should be filed within 21 days.
28. In terms of costs in the court below, these are to be vacated and lie where they fall. In relation to the costs in the appeal, these are awarded to the Appellant.

Goldsbrough (P)
Palmer (CJ)
Member
Hansen (JA)
Member

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^[1] [2014] SBCA 4