Korean Enterprises Ltd v Attorney General [2013] SBHC 58; HCSI-CC 357 of 2012 (31 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 357 of 2012

BETWEEN:

KOREAN ENTERPRISES LIMITED
Claimant

AND:

ATTORNEY GENERAL
Defendant

Hearing : 12 March 2013
Decision : 31 May 2013

Mr. Radclyffe for the Claimant
Mr. Muria (Jr) for the Defendant

DECISION

1. The Claimant is a company incorporated in Solomon Islands. It owned 22 parcels of land leased from the Premier of Guadalcanal Province, at Ndoma, on West Guadalcanal. The total area of these 22 parcels of land, is approximately 49 hectares. Their perpetual Estates are owned by the Premier of Guadalcanal Province on behalf of the Province. The purpose of the Claimant obtaining these leases is to establish an on shore fisheries base on the land with its associated company, Makao Fisheries Limited. At material times, its Project Manager, Mr. Myung Shin, also known as James Kim, negotiated the leases and held discussions with Korean foreign investors. A former Minister of Fisheries and the Premier of Guadalcanal Province both supported the Claimant's plan as it is in line with National Government's policy at that time and the Provincial Government's development plans for the Ndoma Land.
   
2. In February 2012, the Claimant applied to the Guadalcanal Province Town and Country Planning Board for approval to develop the land and paid the relevant fees. But on 16 April 2012, the Secretary to the Board informed the Claimant by letter that the application had been deferred until further notice because of the Government's plan to compulsory acquire the Claimant's land. On 27 April 2012, the Ndoma public purpose (Declaration) order 2011 was published in the Gazette.
   
3. On 24 September 2012, the Claimant filed its claim to quash the declaration by the Minister of Lands, Housing and Survey on the ground that the acquisition was not for a public purpose. The Claimant asserts that the compulsory acquisition was for Korean Private Investors who would pay nothing for the Land.
   
4. The Defendant's case is that the declaration of 26 April 2012 by the said Minister was required for the purpose of developing fisheries in Solomon Islands.
   
5. The effect of the declaration was that all interests vested in the Claimant over the parcels of land ceased as from 26 April 2012. On the other hand, the perpetual estate interests previously vested on the Premier of Guadalcanal Province likewise ceased from 26 April 2012. They are now vested in the Commissioner of Lands. The Fixed Terms Estates in the Parcels are now available for use by investors for the purpose of fisheries development.
   
6. Whilst the Defendant declared all the parcels of land for public purpose, there was no information on whether the Government would use the entire land for developing fisheries.
   
7. The Solomon Islands Constitution has something to say about compulsory acquisition of land. Section 8(i)(a) states that property shall not be compulsorily acquired except where the acquisition is necessary or expedient in the interest of defence, public safety, public order, public morality, public health, town and country planning or development or utilization of any property in such manner as to promote the public benefit. The Claimant says none of these conditions apply to the facts of this case.
   
8. It is obvious that both the Claimant and the Defendant are talking to private investors about carrying on investment on the land. Refer to the one Wantok Project, in particular the feasibility study, Exh. CRII, so as the Claimant, see paragraph 1 herein.
   
9. There is evidence to show that the Claimant is ready to develop the land together with the Solomon Islands Government, see Exhibits MSK5, 6, 7, and 8 attached to the sworn statement Mr Myung Shin Kim. The Claimant and the Defendant both have their own plans to develop the land. The Claimant is prepared and ready to transfer parts of his land to enable the Defendant to fulfil its plan. The Wantok investment will merely require 15 hectares to cater for cold storage, fuel storage, power generation, waste water treatment plant, roads and other common facilities. It may as well require additional land to build residential houses to accommodate employees at the site.
   
10. The term "Public purpose" is not defined in the Land and Titles Act ("the Act"). This is the issue in contention between the Claimant and the Defendant in this application. I note that the Defendant would change its current practice of issuing fishing licences to foreign fishing vessels which fish in Solomon fisheries zone but which return straight to their own countries. The new policy which the Government plans to implement is to oblige foreign fishing business owners to use the on shore base on the land to export their fish from there to their respective countries. This way would increase employment opportunities, better management and control of fisheries resources and increase tax on fish export. I am of the view that development of fishery is a public purpose within the terms of the Act.
    
11. Evidence shows that the Wantok plan merely needs 15 hectares of the land for its project. However, the project might require additional space for accommodation for employees. This means the project would merely require 19 hectares of the land. This court is of the view that part of the land not required for the development of fisheries be returned to the Claimant.
    
12. In the circumstance, by virtue of section 76 (3) of the Act, the court order that 30 hectares of land declared for public purpose but not required for fisheries development is to that extent quashed. The Register of Titles to restore these 30 hectares of lease land to the Claimant within time stipulated by the Act.
    

Order: 1. 19 hectares of the land declared for public purpose.
2. 30 hectares is restored to the Claimant.
3. The Defendant to pay the Claimants cost.

Order accordingly.

THE COURT