DJ Graphics Ltd v Commissioner of Lands [1996] SBHC 19; HC-CAC 007 of 1995 (24 April 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 1995

lign="center" ter" style="margin-top: 1; margin-bottom: 1">DJ GRAPHICS LIMITED

v

COMMISSIONER OF LANDS

Before: Muria, CJ

style="margin-tgin-top: 1; margin-bottom: 1">Hearing: 11 A1996

Ruling: 24 April 1996

<

Counsel: F. Waleilia for Applicant;

P. Afeau for Respondent;

A. Radclyffe for SIPA

MURIA, CJ.: This is an application brought by the applicant seeking leave pursuant to section 232 of the and Titles Act (Cap. 93) to appeal against the decision andn and orders of Palmer J made on the 11 December 1995. The condition that leave to appeal must be obtained is actually stipulated in paragraph (c) of subsection (4) of that section.

In the hearing before Palmer J, the applicant sought the orders of certiorari, prohibition and mandamus against the respondent in connection with the dealing in certain land in Honiara and described as Lots 147 and 128/II/H, Point Cruz. Those pieces of land had been allocated by the Commissioner of Lands to Solomon Islands Ports Authorities (SIPA). However the Minister of Lands and Housing later sought to allocate them to the applicant and to revoke the prior allocation by the Commissioner of Lands to SIPA relying on his power under section 4(4) of the Land & Titles Act.

It became obvious that the central issue to be decided by the Court in the case between the applicant and respondent before the High Court (CC102/95) as well as in the related case between SIPA and Commissioner of Lands (H.C.) CC164/95 revolves around the interpretation of section 4(4) of the Act. What are the powers of the Commissioner of Lands and the Minister of Lands under that provision? This is the first time that, as far as I am aware, a controversy arising out of the exercise of the powers under section 4(4) of the Act had been dealt with by the Court.

For convenience sake, I set out section 4(4) of the Act hereunder:

"4 ...............................

...................................

(4) The Commissioner shall have power to hold and deal in interests in land for and on behalf of the Government, and, subject to any general or special directions from the Minister, to execute for and on behalf of the government any instrument relating to an interest in land."

Having considered the above provision, Palmer J held that the Minister has no power under that provision to allocate the land in question to the applicant and that the power to allocate vests on the Commissioner of Lands. Consequently Palmer J refused the orders sought by the applicant.

There can be no doubt that the determination of the extent of the powers of the Commissioner of Lands and Minister responsible for lands under section 4(4) of the LTA is of considerable importance and a final decision on this by the Court of Appeal would be of great benefit to those involved in the administration of government land as well as to those in the position of Ministers responsible for land matters. Generally it will also be a matter of public advantage to know the ambit of the power of the Commissioner of Lands as well as that of the Minister under this particular section of the Act. This is therefore in my view a proper case for leave to be granted. See Buckle -v- Homes [1926] 2 KB 125, and Johnson Tariani -v- Reginam [1988 -1989] SILR 7.

There is a further reason also why leave should be granted here. This is the first time that a conflict between the Commissioner of Lands and his Minister has arisen, both relying on the same provision of the law. This is certainly rare as Mr. Waleilia pointed out.

The learned Solicitor General suggested and supported by Mr. Radclyffe of Counsel for SIPA that the High Court has correctly pointed out the law in the matter and as such unless it can be shown that the High Court was manifestly wrong leave to appeal ought not to be granted. I do not agree with that contention because if it were so then leave to appeal would likely to be refused in every case when applied for.

The question arising out of the conflict between the Commissioner of Lands and the Minister in this case is one involving an important principle and the High court had dealt with it for the first time. The Court must surely allow leave to appeal in such a case in the exercise of its discretion. Even if we are satisfied that the learned trial judge's decision is correct that is no reason to refuse leave. See Ex parte Gilchrist: In re Armstrong [1886] UKLawRpKQB 112; (1886-87) 17 QBD 521 and also Sommer & Co. Pty Ltd -v- Pennywise Smart Shopping Australia Pty Ltd & Anor, H/Ct of Australia, 12/3/93 (unreported).

There is one further matter. The application for leave and the Notice of Appeal is in respect of CC102/95. However the main issue running through CC102/95 and 164/95 centred on the interpretation of section 4(4) of Land & Titles Act and resulted in those cases being heard together before Palmer J. It is also on this basis that SIPA through its Counsel, had been given the opportunity to be heard in this application as I feel SIPA's interest is also affected by these proceedings. I think in the circumstances SIPA's interest must also be represented at the appeal and I direct that the two cases be consolidated and that SIPA be made a party to the appeal so that its interest be represented. The Notice of Appeal should be amended to reflect this.

In the circumstances I also grant leave to file Notice of Appeal out of time. That must be done within 7 days from the date of this decision.

I feel it is also as a matter of course that all orders and decisions of the High Court affected by the appeal be stayed until the determination by the Court of Appeal of this appeal and I so order.

Costs reserved.

G.J.B. Muria
CHIEF JUSTICE