Ministry of Environment, Climate Change, Disaster Management and Meteorology v Eke [2023] SBCA 26; SICOA-CAC 9041 of 2019 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Ministry of Environment, Climate Change, Disaster Management and Meteorology v Eke
Citation:
Decision date:	13 October 2023
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Keniapisia J)
Court File Number(s):	9041 of 2019
Parties:	Ministry of Environment, Climate change, Disaster Management and Meteorology v Abraham Eke
Hearing date(s):	3 October 2023
Place of delivery:
Judge(s):	Hansen P Palmer CJ Gavara-Nanu JA
Representation:	S Banuve for the Appellant G Fa’aitoa for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Environment Act 1998 S 19, S 22, S 17(2) (a), S 19 (1), S 17 (2) (a) and (b), S 25 (1), S 19 (1) (a) and S 20 Solomon Islands Court (Civil Procedure) Rule 2007, r 8.21
Cases cited:	Bolami v R [2011] SBCA 26, Natei v R [2013] SBCA, House v King [1936] HCA 40,
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-15

JUDGMENT OF THE COURT

1. This is an appeal against the decision of the High Court given on 17 October 2019, in respect of the civil proceeding titled, Civil Claim Number 150 of 2017 (Category C) (the Claim).
2. The claim was brought by the appellant as the Claimant in the proceeding, in his capacity as the Principal Legal Adviser to the Government of Solomon Islands, representing the Ministry of Environment, Climate Change, Disaster Management and Meteorology against the respondent who was the defendant in the proceeding.
3. The respondent was the lease holder of the property described as FTE PN191-038-111 (the property).
4. The Director of Environment (the Director) is responsible for issuing Development Consent (DC) or exemption for developments to be done on properties under s. 19 of the Environment Act, 1998 (the Act).
5. On or about 11 June 2015, the respondent applied for DC from the Director to develop the property.
6. Sometime in 2016, the Director advised the respondent that his application for DC needed to be published in a public notice to bring it to the attention of the public as required under s. 22 of the Act, and the respondent was required to submit an environmental report or an environment impact statement. Upon considering such report, the Director could then decide whether to grant his consent for the development of the property or exempt the development of the property from such requirements or refuse the application for the DC. Depending on the type of situation arising, the respondent as the developer could then proceed with the development of the property or do the things required of him by the Director to obtain the DC. In this case, the respondent failed to comply with the statutory requirements to obtain a DC to develop the property.
7. The public notice for the proposed development of the property was necessary to make the public aware of the proposed developments of the property and any possible negative impact on the environment. The notice was also to give opportunity to any member of the public or interested groups or entities having any objection to the development proposals to raise such objections.
8. As a result of the respondent’s failure to submit the environmental report and or an environment impact statement the respondent was never issued the DC let alone exempted from complying with the requirements under the Act to obtain the DC. Despite failing to submit an environmental report or an environment impact statement, the respondent went ahead and continued to develop the property, especially with reclamation which was in direct contravention of s. 19 of the Act.
9. On 9^th March 2017, a public notice for the respondent to stop work on the property was issued. The respondent however, continued to work on the property in defiance of the notice. That resulted in the above proceeding being issued against the respondent by the appellant.
10. The appellant in the proceeding sought by way of relief a declaration that the respondent breached s. 19 of the Act and sought further orders to restrain the respondent from carrying out further work to develop the property.
11. Ironically, the primary judge declared in his decision that the respondent breached s. 19 (1) of the Act but said the breach was committed with the assistance of the Director by failing to process the respondent’s application for the DC within 15 days of receiving the application as required under s. 17 (2) (a) of the Act. The primary judge said the Director was required within the 15 days to advise the respondent whether his application was granted or not. The primary judge said by failing to perform that statutory duty, the Director was privy to the breach of s. 19 (1) of the Act by the respondent. Despite finding that the respondent had breached s. 19 (1) of the Act, his Lordship refused to grant the restraining orders sought by the appellant. Costs were awarded against the appellant.
12. In his ruling, the primary judge among others, said the Director failed his statutory duty by failing to process the respondent’s application for the DC for two years. His Lordship said any actions taken by the Director regarding the DC were taken only after the respondent started developing the property after waiting for two years for the Director to process his application for the DC. His Lordship said the appellant had a “statutory expectation” for the Director to process his application within 15 days of receiving the application, but the Director failed to discharge that statutory duty.
13. The following excerpts of his Lordship’s ruling sufficiently reflect the ratio of his decision: -
    • “Mr Abraham Eke is a local businessman. Mr Eke holds a lease to the Fixed Term Estate (FTE) in PN 191-038-111 (PN111). Mr Eke wanted to develop PN111. It is normal that once a businessperson has intention to develop a piece of land, he/she would want to progress his/her plans quickly. Time is money to everyone. But more so to every businessperson.
    • And so, by year 2015, Mr Eke moved to develop FN111. Mr Eke applied for a development consent (“dc”). On 11^th June 2015, pursuant to s. 17 (2) of the Environment Act 1998 (no. 8 of 1998). Sometime in 2016 Director assured Mr Eke that his application will be published. Mr Eke, his officers, and his agent (John Noni) made follow up contacts with the Director. But by the end of 2015 and whole of 2016 nothing happened. Application not (sic) published and no proper direction, instruction or response from the Director. So, in early 2017, Mr Eke went ahead with his plans to develop PIN III (started reclamation). This caused the Director to jump up. On 15 March 2017, Director issued a “Stop Notice” (sic) to Mr Eke. Then in April 2017, the Director moved with some urgency to publish the Public Notice. One wonders why Director did not do anything in 2015 and 2016.
    • The Director has statutory duty to ensure business progresses. For a business or investment or development cannot take place without a dc from the Director. And Director must act to facilitate investments to happen in a timely manner. That did not happen here. Director did nothing in two years (June 2015 – December 2015 and whole of 2016). Director was only forced to work on the dc by the defendant’s action to execute his business plans (by developing PNIII, through reclamation). Director through Kereseka Potakana was corresponding with Mr Eke in September 2017, regarding the dc. But what use was that correspondence when this court has already issued injunction to stop Eke prior to September 2017? Director forced a problem on Mr Eke by very late response to process the dc. Mr Eke could not wait in the dark for two years. And so commenced work. Then Director run (sic.) to this court and stopped Mr Eke from work (15^th June 2017 injunction). Then Director was in September 2017 calling on Mr Eke to talk about the dc. No response from Mr Eke. Any response on the dc had no meaning I guess, because Mr Eke has a Stop Notice and injunction against him. And the case is yet to complete in court.
    • ... I exercise discretion (sic.) to find and declare that the defendant breached Section 19 (1) of the Environment Act (1998), assisted by the Director. Assisted by Director’s failure to process the dc in a timely manner. That is to say Mr Eke carried out the development without a dc in breach of Section 19 (2) but assisted by Director’s failure. As to relief number 2, I will not stop defendant from developing PN III...I will order costs against Government for this case...”
14. His Lordship said under s. 17 (2) (a) and (b) of the Act, the Director needed to do two things within 15 days of receiving the respondent’s application for the DC. First, request Mr Eke to submit a development consent application with public environment report and any other things the Director may require. Second, request Mr Eke to provide an environmental impact statement and any other things the Director may require. According to the primary judge, the Director did not do any of these things and the Director failed to give clear instructions to Mr Eke in those 15 days to kick start the process of either granting the DC or refusing it.
15. The appellant raised 2 main grounds of appeal, the other 2 being consequential. The grounds of appeal are as follows: -

Grounds of appeal

The learned trial judge erred in both fact and law in failing to take into account clear evidence that the respondent (sic.) failure to respond to the appellant’s request for a comprehensive environmental report caused the delay in processing the respondent’s application for a development consent; and
The trial judge erred in fact and law in holding that the respondent’s breach of s. 19 of the Environment Act, 1998 is (sic.) assisted by the Director of Environment’s failure to process the development consent despite answering issue number 1 in the affirmative; and
The appeal be allowed; and
The respondent to pay the appellant’s costs of the trial before the court below and of this appeal.

Submissions
By the appellant

16. The Attorney General for himself, submitted that findings and orders the primary judge made were contrary to the terms of the “Agreed Facts”, to which all parties agreed by signing them, pursuant to Rule 8. 21 of the Solomon Islands Courts (Civil Procedure), Rules 2007, which is in these terms:

Agreed facts
8.21

“If parties agree on facts at a conference, the court must direct one of the parties to write down the agreed facts and send a copy to the court and each other party and shall require each party to sign the statement of agreed facts”.

17. It was submitted that the primary judge fell into error in his decision because the findings and conclusions he reached were against the evidence and weight of the evidence, including the Agreed facts which were in mandatory terms and were therefore binding on the parties. It was submitted that the primary judge failed to consider the real cause of the delay by the Director in processing the respondent’s application for the DC, which was the respondent’s own failure to provide a comprehensive Public Environment Report which the Director requested from him. The conclusions and the orders made by the primary judge were therefore unreasonable and had no basis. It was submitted that the primary judge went outside of the Agreed Facts and conducted his own inquiries, thus making and reaching unreasonable findings and conclusions.
18. The appellant also submitted that the primary judge erred in law in concluding that breach of s. 19 of the Act, by the respondent was assisted by the Director for failing to process the respondent application for the DC because there was no evidence before the primary judge supporting such conclusion. It was submitted that the primary judge had condoned the breach of s. 19 (1) of the Act, by the respondent by ordering the respondent to continue developing the property.
19. Thus, it was submitted that primary judge erred in the exercise of his power when he ordered the respondent to continue to develop the property, without complying with the mandatory requirements under s. 19 (1) of the Act.

By the respondent

20. No written submissions were filed by the respondent but the counsel acting for the respondent appeared at the hearing of this appeal. Counsel told the Court that he had no submissions to make. The result is the Court will only consider the submissions by the appellant and other material before it.

Considerations and reasons for decision

21. The parts of the Act which the primary judge considered are ss. 17, 19 and 22. These provisions appear under Part III of the Act, which deals with development control, environmental impact assessment, review and monitoring.
22. The above provisions are reproduced below for ease of reference.

Applications for approval

17. (1) Any developer who proposes to carry out any Applications for prescribed development in Solomon Islands shall make application to the Director in such form as may be approved by the Minister.
(2) On receipt of the application referred to in subsection (1), the Director shall within fifteen working days of such receipt advise the developer to submit -

• (a) a development application accompanied by a public environmental report, together with any additional requirements as notified by the Director; or
• (b) a development application accompanied by an environmental impact statement, together with any additional requirements as notified by the Director.

(3) Where the developer is a foreign investor, a certified copy of the Investment Board's certificate of approval shall be attached with the application.
(4) Where the Director decides to dispense with the requirements of subsection (2), he shall advise the developer accordingly within the time stipulated in that subsection.
(5)In determining as to whether the developer is required to submit a report referred to in paragraph (a) or (b) of subsection (2), the Director shall take into consideration the significant impact the development is likely to have on the environment and other factors that may be prescribed by regulations made by the Minister under section 55.

Consent required for prescribed development

19. (1) A developer shall not commence or continue consent carry out any prescribed development unless required for prescribed development.

• a development application has been submitted to the Director, together with either a public environmental report or an environmental impact statement, as specified by the Director in section 17; and
• the developer has been issued with a development consent under this Part; or
• (c) the Director has exempted the development from the requirements of this Part.

(2) Any person who carries on any prescribed development in breach of subsection (1) shall be guilty of an offence and be liable to a fine not exceeding ten thousand dollars or imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.

Publication of public environmental report and procedure in respect of objections and appeal.

22. (1) The Director on being satisfied that a public environmental report meets the requirements of this Act, shall cause the public environmental report to be published in such manner as he considers adequate or most effective for the purpose of bringing it to the attention of all public authorities and other persons, whose interests are likely to be affected by the proposed development.
(2) Any public authority or person whose interests are likely to be affected by the proposed development may within thirty days from the date of publication of the notice referred to in subsection (1) make written objections to the Director in respect of the proposed development.

(3) On receipt of the written objections referred to in subsection (2), the Director shall examine the grounds of objections and where he deems it necessary after hearing the affected parties either -

(a) Consent to the development, or the continuation of that development, with or without conditions;
(b) require the developer to produce an environmental impact statement and to conform with the provisions concerning environmental impact statements under this Part; or
(c) refuse consent to the prescribed development.
(4) In making the decision the Director shall take into account -

• (a) the information contained in the development application and public environmental report;
• (b) any objections received under subsection (2) and any information provided in support of the objections; and
• (c) the objects of this Act.

23. We note at the outset that the primary judge relied on the Agreed Facts and acknowledged their binding effects in his decision. The respondent had also conceded breaching s. 19 (1) of the Act, pursuant to paragraphs 7 and 8 of the Agreed Facts and the primary court found accordingly.
24. There is evidence that on 12^th September 2017 a letter was sent to the respondent by the Director requesting a comprehensive Public Environment Report in respect of the proposed development of the property, but the respondent failed to provide the report.
25. It is a mandatory requirement under ss. 19 (1) (a) and 20 of the Act, that any intending developer of a property must provide a comprehensive Public Environment Report to the Director for a possible grant of the DC. This mandatory requirement and the respondent’s statutory obligation to provide such comprehensive Public Environment Report were ignored by the primary judge.
26. Therefore, it is clear that the failure by the respondent to provide a Public Environment Report to the Director, was the reason for the Director not processing the respondent’s application for the DC.
27. The thrust of the Act is that a proposed development of a property by a developer must comply with the mandatory requirements of the Act. Any breach of the requirements under the Act, will incur penalties prescribed under the Act. The scheme of the Act quite plainly therefore is to protect the environment and the public interest.
28. The mandatory requirement under s.25 (1) is that a developer “shall not” carry out any development on a property except in accordance with the DC. Thus, obtaining the DC by a developer of a property is a condition precedent for any development to be done on a property. This was ignored by the primary judge, and it amounted to serious error of law. The decision of the court below has an element ad absurdum and amounts to substantial miscarriage of judge.
29. In this regard, we also note that there was an existing interim injunction against the respondent which the primary judge gave, when he ordered the reclamation work by the respondent on the property to continue. The orders were against the interim injunction, and it was improper for the primary judge to not deal with the interim injunction first before dealing with other issues. It was incumbent on the primary judge to either extend or discharge the interim injunction first, and in this case given the type of orders he made, he should have discharged the interim injunction first. He did not do that, the primary judge appears to have blatantly and fragrantly disregarded the interim injunction in making the orders for the reclamation on the property to continue. This was another serious and blatant error of law.
30. It is an established principle of law that an appellate court cannot disturb the decision of the primary court unless the primary court had applied wrong principles or fallen into error by not considering matters it should have considered or considered matters it should not have considered. And that, such errors have amounted to substantial miscarriage of justice. Alternatively, although an error may not be obvious from the decision appealed, the resulting decision is unreasonable or plainly unjust, that an error can be inferred. See, Bolami v. R [2011] SBCA 26 and Natei v. R [2013] SBCA 14. These principles was succinctly stated in by the High Court of Australia in House v. King [1936] HCA 40; (1936) 55 CLR 499 at 504 – 505, per Dixon, Evatt and McTiernan JJ. The Court said:
    • “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
31. In this case, it is plain that primary judge fell into glaring errors when he among others, found that the appellant had assisted the respondent to breach the mandatory requirements under s. 19 (1) of the Act and ordered the respondent to continue developing the property. The finding and the orders the primary judge made had no proper basis because there was direct evidence before the court that the Director did not receive the environmental report he requested from the respondent. This was the real cause for the respondent’s application for the DC not being processed by the Director. In this regard, the findings and orders of the primary judge had no basis at all and amounted to substantial miscarriage of justice.
32. We cannot stress enough that judges cannot make decisions that are not supported by the evidence before them. To do so would be improper. They have a duty to decide cases on the evidence before them and the merits of the case and must make decisions according to law. In this regard, the judicial power they hold must be exercised properly and fairly in deciding cases because the power they wield belongs to the people at large. Judges are mere depositories of peoples’ power, they must not abuse it in discharging their judicial functions.
33. For the foregoing reasons, we allow the appeal.
34. Pursuant to the reliefs sought in the Notice of Appeal, we make the following orders:-
    • (i) We declare that the respondent breached s.19 (1) of the Environmental Act, 1998.
    • (ii) The respondent, his servants, agents, invitees, licenses or others currently acting under the respondent’s authority or purported authority are restrained forthwith from carrying out further works on FTE PN191 – 038 – 111.
    • (iii) The Director should decide which if any of the developments already made on the property are to be removed and which, if any of the development are to remain.
    • (iv) The respondent must then apply for a Development Consent if he desires to develop the property.
    • (v) The appellants costs of this appeal and the trial in the primary court in respect of the proceeding titled Civil Claim No. 150 of 2017 (Category C) be paid by the respondent, which are to be taxed, if not otherwise agreed .
    • (vi) Orders accordingly.

Hansen (P)
Palmer (CJ)
Gavara-Nanu (JA)