JJ Limited v Solomon Exports and Imports Ltd [2013] SBHC 20; HCSI-CC 262 of 2011 (14 March 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 262 of 2011

BETWEEN:

J J LIMITED
Claimant

AND:

SOLOMON EXPORTS AND IMPORTS LIMITED
First Defendant

AND:

THE ATTORNEY GENERAL
(Representing the Commissioner of Lands)

Date of Ruling : 14 March 2013

P. Tegavota for the Claimant
G Suri for the First Defendant
E Kii for the Second Defendant

RULING

[1] The Claimant and the First Defendant are private companies. They carry on business in Solomon Islands. The Second Defendant is the Attorney General, the Principal Legal Advisor of the Government, representing the Commissioner of Lands "the Commissioner". The Commissioner has powers under the lands and titles Act (Cap 133) "the Act" to hold and deal in interests in land for and on behalf of the Government in Solomon Islands.

[2] The Claimant and the First Defendant have each been granted fixed term estates of 50 years by the Commissioner at the seafront at Ranadi in Honiara. The common boundary separating these estates is the high water mark of 1999 along the beach at Ranadi. The northern boundary of the Claimant's estate begins at the high water mark and extends in land to its southern boundary along the road. On the other hand, the southern boundary of the First Defendant's estate starts from the high water mark referred to above and extends to land under water to its northern boundary in the sea. Much of the First Defendant's estate is made up of land under water on the sea bed.

[3] As the estates are located parallel to each other along the high water mark, the Claimant has no access to and from its land from the sea as it used to enjoy before the First Defendant obtained its estate from the Second Defendant. The Claimant obtained its fixed term estate in parcel no. 192-010-228 on 24 October 2001. It used the northern boundary to load and unload machines and timber from vessels. Further, it also used the area with other companies as a landing place for vessels, barges and landing crafts.

[4] The First Defendant was granted its estate in Parcel No. 191-010-262 by the Commissioner in April 2011. On an unknown date and month, the First Defendant issued a public notice which states: "As owner of Parcel No. 191-010-262, Lot 3192 situated at Ranadi beach front do hereby ask you to refrain from landing, unloading your vessels, barges, landing crafts at the said property. Prior to landing of any vessel with effect dated 1st May 2011, we would ask you please to contact our office immediately to negotiate a landing rate at your earliest convenience to avoid disappointment. However, if permission is not sought, legal action shall and will be taken against you and your company without prior warning for trespass".

[5] The Claimant then filed this claim on 18 July 2011. Later it obtained interim restraining orders against the First Defendant and the Second Defendant on 22 August 2011. The claim was amended on 8 August 2011, and was further amended on 29 March 2012. The Claimant seeks declaratory orders and costs as follows: (1) Declaration that the rights of the Claimant and others be allowed to have rights of way or access outward and inward from its Fixed Term Estate Parcel Number 191-010-228 as an overriding interest that is protected under section 114 (a) of the Act; (2) Declaration that any restriction imposed by the First Defendant to prevent the loading and unloading of ships, barges and other crafts from Fixed Term Estate Parcel Number 191-010-288 constitutes a breach under section 114 (a) of the Act on the part of the First Defendant; (3) Declaration that the Second Defendant in granting Fixed Term Estate in Parcel Number 191-010-228 to the Claimant in 2001, being property situated at the Ranadi seafront also consisted of rights of way outward or access outward and inward from its property using the front sea area adjacent to its property.(4) costs and (5) such other or further orders as the court sees fit.

[6] The main issues before the court in this application is whether: (1) the Claimant has a right way to and from its estate over the First Defendants land and (2) whether the court can grant the declaratory orders sought by the Claimant at this stage of the proceedings.

[7] The law under which these issues can be decided are set out under section 114 and 115 of the Act. These sections relevantly state:

"114. The owner of a registered interest in land shall hold such interest subject to such of the following overriding interests as may for the time being, subsist and affect the same, without there being noted on the register –

(1) rights of way, rights of water, easements and profits subsisting at the time of first registration of that interest under this Act".

[8] "115. (1) Notwithstanding anything to the contrary to this Act contained, all interest in land (including customary land) shall be held subject to an implied right that any person (whether or not a Solomon Islander) who is the owner of an estate in .......... the neighbourhood of that land who has no reasonable means of access from his land to way....or foreshore affording reasonable means of access, shall have a right of way for all purposes over such land and to pass and repass with ......boats.....

(2) If the persons concerned cannot agree among themselves to the ......terms and condition of...... the right of way, the matter shall be referred to the commissioner by the person requesting the right of way, and the commissioner shall decide the matter.

(3)...............

(4) In any case where the commissioner has given his decision upon a right of way under subsection (2) he shall issue a right of way certificate which shall –

(a) specify the land to be served by the right of way, the land over which it exists and such other details as he may consider desirable.

(b) upon application by him be noted in the land register in so far as it relates to the registered land.

(5) compensation for loss or damage in respect of or land over which a right of way is made, or in respect of or to anything therein or thereupon, shall be payable and shall be assessed by mutual agreement by the parties concerned and in the absence of agreement the matter shall be referred to commissioner and the compensation shall be assessed by him.

(6) Any person aggrieved by any decision of the commissioner under this section may, within three months of being informed of such decision, appeal to the High Court, and the court's decision therein shall be final and conclusive and shall not be questioned in any proceedings whatsoever.

(7) The Claimant contends that it holds unconditional right to enter and leave its land over the First Defendant's land freely without interruption by the First Defendant. The First Defendant acknowledges that the Claimant has a right of way over its land, but that is subject to negotiation and agreement between itself and the Claimant.

(8) It is obvious that the First Defendant's position is based upon the procedure set out in section 115 above. Coupled with the public notice given by the First Defendant, the inference is that the First Defendant has refused free entry and exit over its land with no fee by the Claimant, unless a landing rate agreement is negotiated and agreed with it.

(9) The way forward for the parties in this case at the present time is to use the procedure alluded to above. The court is of the view that the Claimant has come to court too early to seek relief without first fully utilizing the process provided under section 115 of the Act. It is plain from that section that this court would merely have power to participate in that process on appeal by an aggrieved party from the decision of the Commissioner. The Claimant sought declaratory orders in the claim. The view of this court is that there is a process in law to resolve the current dispute. The court will allow that process to take its course rather than granting the declaratory orders sought by the Claimant.

In the circumstances, this claim is dismissed with costs.

THE COURT