Quan Shui Hai v Commissioner of Lands [2017] SBHC 2; HCSI-CC 176 of 2015 (17 January 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 176 of 2015

BETWEEN: QUAN SHUI HAI Claimant

AND: COMMISSIONER OF LANDS First Defendant

AND: REGISTRAR OF TITLES Second Defendant

AND: WIWI MANATU MANGINO Third Defendant

Date of Hearing: 19/10/2016 (Trial); 17/11/2016 (Closing submissions).
Date of Judgment: 17^th January 2017.

Mr. A. Radclyffe for the Claimant.
Mrs. F. R. Tagini for the First and Second Defendants.
Mr. M. Pitakaka and Mr. J. Taupongi for the Third Defendant.

KENIAPISIA; PJ:

JUDGMENT

Introduction

1. Claimant is the Fixed Term Estate (“FTE”) owner of Parcel Number: 191-003-115 (“PN 115”), situated along Tandai Highway next to Valbros refilling station, West Honiara. Claimant acquired his FTE in PN 115 in 1998. And has since developed his land by the construction of a shopping complex, a residence and another building rented out to Mormon Church.
2. Third defendant is the FTE owner of Parcel Number: 191-003-193 (“PN 193”). PN 193 is also situated along Tandai Highway next to Valbros refilling station, West Honiara. Third defendant acquired his FTE in PN 193 in 2015, after six years of persistent and long struggle since 2009. By 2015, claimant had already developed PN 115, as noted in paragraph 1 above.
3. Access to claimant’s FTE is from the main road fronting third defendant’s FTE in PN 193, along Tandai Highway, West Honiara. Claimant’s and third defendant’s two FTE properties lie next to each other, along the same side of Tandai Highway. To get to the claimant’s residence and Mormon Church building, one must first pass through third defendant’s FTE. Third defendant’s FTE is situated next to the main Tandai Highway (only about three meters away) and is sandwiched between the main Tandai Highway and claimant’s PN 115, especially the part on which the residence and Mormon Church buildings are erected. Court made a site visit to the scene of this dispute and had a clear picture of the location of PN 115, PN 193 and their proximity to the main Tandai Highway.
4. This dispute came about because claimant wants to restrain the third defendant from developing or occupying PN 193. If the third defendant should develop or occupy PN 193, it will obstruct and interfere with claimant’s use and access in front of the residence and Mormon Church buildings. Any development of PN 193 will also obstruct and interfere with claimant’s customers’ access who use the residence or church building.
5. Claimant also say that allocation of PN 193 to third defendant is a mistake because it should remain part of a “road reserve” and should not be owned and developed by anyone. The land should remain with the first defendant as part of the “road reserve”. The road here is Tandai Highway.
6. First and second defendants’ position is that the third defendant should not have been granted title to PN 193 because it forms part of the “road reserve”. Any development of PN 193 would be very close to the main Tandai High way and would interfere with the “road reserve”. Evidence has overwhelmingly shown that, had it not been for the “persistent asking attitude” of the third defendant, PN 193 would not have been allocated to him in 2015. Since 2009/2011, first defendant has refused allocating PN 193 to third defendant on the ground of “road reserve”. Evidence on this persistent attitude can be seen at pages 45 and 49 of bundle of sworn statements. The same could be deduced from Mr. Wiwi’s own statement at pages 27 – 125 of the said bundle.
7. Third defendant’s case is that any “road reserve” that may have existed at Valbros along Tandai Highway (“THW”) ceased to exist from 2007 onwards when other plots along the so called “road reserve” were allocated and registered to third parties. By 2015, there was no longer any “road reserve” in front of Valbros. Registration of third defendant’s FTE in PN 193 is therefore not a mistake. Third defendant maintained that his land is not situated on a “road reserve”.

Main Issue

8. The main issue is: Whether PN 193 is in a “road reserve” and therefore its allocation to third defendant is a mistake, in that, a “road reserve” should not be interfered with. If it is a mistake, should rectification be made by cancelling the name of the third defendant and restoring FTE back to Commissioner of Lands (“COL”)?

Statutory Authority on “Road Reserve”

9. Is PN 193 inside a “road reserve”? The evidence before this Court is that PN 193 is situated on a “road reserve”. This is confirmed by the Permanent Secretary of the Ministry of Infrastructure Development (“MID”) in his oral evidence in Court and in his sworn statement (“ss”) at paragraph 4^[1]. Permanent Secretary of MID is also the Director of Roads under the Roads Act (Cap 129). The said Permanent Secretary or Director of Roads has determined and led evidence that future road expansion intended for West Honiara will inevitably intrude into PN 193 which is inside a “road reserve”. On site visit, Court was able to verify and understood clearly, what the Director of Roads said about PN 193 being inside a “road reserve”. Court witnessed that PN 193 is sandwiched in between PN 115 and the main THW. Directly on top of PN 193 are the main Solomon Power 11,000 volts transmission lines. Also located nearby towards Valbros refilling station (easterly direction) are the main drainage next to the THW. Court could see clearly and understood what the Director of Roads meant when he said that a “road reserve” is a portion of land that is needed for road drainage to prevent flooding or alternatively that a “road reserve” is needed for water or electricity installations for public use. There is evidence before this Court that a water pipeline is running close to PN 193 underneath^[2] the drainage along the main THW. Similarly, the electricity provider also said any development of PN 193 will interfere with future power line expansions^[3]. These are consistent with Court’s observations made during site visit. Transmission line was right above where I was standing on PN 193. Court could see the drainage very close by, going towards Valbros – easterly direction.
10. When the Director of Roads says that a plot of land is a “road reserve”, who else has power under statute to say otherwise. The plain answer is “No; not one.” Court concludes accordingly that PN 193 is inside a “road reserve”.
11. Third defendant says that PN 193 is not inside a “road reserve” because other similar plots along THW have already been allocated to third parties. Third defendant rely on an advice given by a Civil Engineer, in 2009 saying that PN 193 is not inside a “road reserve”^[4]. Unfortunately that advise in 2009 was not from the Director of Roads or Permanent Secretary of MID. It was an opinion from a Civil Engineer^[5] only, who is not a credible statutory authority on “road reserve”. It is not the final authority (advice) for anyone to safely rely on. The final authority provided by statue on matters to do with “roads” and “road reserves” is the Director of Roads (the statutory regulatory authority for public roads and incidental matters on roads).
12. If PN 193 is inside a “road reserve” as Court concluded in paragraph 10 above, then what is the available remedy in view of future planned road expansion; in view of future public utility use interference and in view of this claim and third defendant’s counter claim?

Statutory remedies on “road reserve”

13. The available remedies in my respectful view can be taken from the relevant statutes. The first can be found in Section 5 of the Roads Act (Cap 129). Under the said section, the Director of Roads shall make an agreement with third defendant to acquire PN 193 for public purposes (i.e. for roads expansion and public utilities installations) and to pay compensation to the third defendant).
14. The second available remedy is for COL to invoke the provisions of Condition Number 3 of the “Grant” (i.e. for the COL to resume back PN 193 because it will be needed for construction of roads and/or other public purposes). This remedy comes from the Lands and Titles Act (Cap 133) under the “Grant” (FTE Grant Instrument). Evidence has shown that Director of Roads (Mr. Henry Murray) has proposed this remedy as the way forward^[6]. The proposal must be followed through to completion. Relevant government agencies should collaborate to implement this proposal. This remedy may not involve payment of compensation because there is no improvement of PN 193. Copy of the Grant is at page 99 of bundle of ss filed 27/09/2016.
15. Until those available statutory remedies/mechanisms have been exhausted; this Court will decline to order rectification on the ground of mistake. There is no evidence that those available mechanisms have been exhausted.

Access Issue

16. Similar position has been taken by this Court in regards to the issue of access, between FTE holders. In the case of J J Limited^[7], this Court declined to deal with the issue of access until parties (FTE holders) have first resolved access issue using the COL office as provided for under Section 115 of Lands & Titles Act (Cap 133). Going by the authority in J J Limited, the issue of access, claimant raised in his claim is dismissed. There is no evidence that claimant has exhausted the mechanism provided by statute.

Third Defendant’s Counter Claim

17. Third defendant’s counter claim is also dismissed. Third defendant did not prove tress pass. The statutory remedy provided for resolving “boundary dispute” of registered lands, under Section 97 of the Lands and Titles Act (Cap 133) is yet to be utilized. Until that mechanism is exhausted, this Court will decline any claim for tress pass relating to “boundary dispute”, between claimant and third defendant, in relation to their respective registered parcels (PN 115 and PN 193). This Court lacks jurisdiction until Section 97 is exhausted.^[8]

18. The orders of the Court are:

18.1. Claim is dismissed. Third defendant’s counter claim is also dismissed.

18.2. Parties to meet their own costs.

18.3. Road reserve issue to be resolved using the mechanism (s) provided by statute.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See pages 19 and 20 of Bundle of Sworn Statements (“BSS”) filed 27/9/2016.
^[2] See page 14 of BSS.
^[3] See page 16 of BSS.
^[4] See page 74 of BSS.
^[5] Civil Engineer in the MID’s Operations and Maintenance Division – See page 74 of BSS.

^[6] See Minutes of discussions Resolutions on road reserve by MID senior management dated 5/10/2015.

^[7] JJ Limited –v- Solomon Exports and Imports Limited (2013) SBHC 20; HCSI-CC 262 of 2011.
^[8] Section 97 (4) of the Lands and Titles Act (Cap 133) as amended.