Perch Christian Ministry Registered Trustees v Attorney General [2018] SBHC 17; HCSI-CC 490 of 2016 (31 January 2018)

PERCH CHRISTIAN -V- ATTORNEY GENERAL,
MINISTRY REGISTERED (1^st 2^nd 3^rd Defendant)
TRUSTEES (Claimant)

IN THE HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No. 490 of 2016

Date of Hearing: 16 November 2017
Date of Judgment: 31 January 2018

B. Upwe for Claimant
S. Banuve for Attorney General

Claim by Judicial review of Land Board’s decision to cancel the remaining term of a registered lease in the claimant’s favour.

Brown J:

The claimant is a charitable organization incorporated under the Charitable Trust Act. It is also registered by the Education Authority as a “school” in accordance with the Solomon Islands Education Act 1978. By claim filed for judicial review pursuant to Rule 15.3, the claimant seeks declaratory orders to set aside decisions by the Land Board given in May and June 2016 whereby the Commissioner of Lands purported to cancel the remaining period of the fixed term estate of the claimant in land where the school was located in Honiara.
In the alternative the claimant says the Land Board took into account irrelevant considerations and omitted to consider relevant considerations when it determined to reissue the land parcel of the claimant PN 193-007-228 to another entity, King George VI School, a Government school on campus adjacent to the Perch Christian School.

As a consequence the claimant seeks orders permanently restraining the first and second defendant from proceeding with the “resumption” of that fixed term estate.

The school had applied to the Commissioner of Lands for portion of lot 2975 at King George VI school area in 2007. In May 2013 approval was granted by the Commissioner of Lands for the acquisition of a fixed term estate in parcel number 191-007-228 on lot 2975. On 22 May 2013 the Commissioner of Lands offered the Fixed Term Estate for a period of 50 years upon payment of a premium of $20,000 and following acceptance and compliance with the conditions of grant, the school was duly registered as owner of the fixed term estate on the 8 July 2015. These facts are uncontradicted.

The purpose for which the claimant had purchased the Fixed Term Estate in the land parcel related directly to the purposes of this school and without contradiction may be said to be for the charitable purpose of the Perch Christian Ministry through its schooling.

The issues which this court have been asked to address are;
1. Whether the Land Board has the power to resume the fixed term estate in parcel
192-007-0228.
2. Whether the condition precedent of six months’ notice required under sections 142 A (2) (a) of the Land and Titles Amendment Act is a mandatory or directory requirement;
3. Whether it is proper for the Land Board to resume the FTE for “public purposes”, (in the light of that very “purpose” of the claimant;
4. Whether it was reasonable for the Board to resume the land from the claimant for public purpose when the claimant’s purchase was to that effect.

The claimant’s argument in relation to issue 1 is that the board’s purported resumption for public purpose lacks legal authority. There is a further argument that the Land and Titles (Amendment) Act 2016 which empowers the land board to resume any fixed term estate for public purpose by notice published in the Gazette, came into force on 1 June 2016. However the board’s decision to resume the fixed term estate in the land parcel was made on 26 May 2016 and it is said the board at that time lacked authority to resume any fixed term estate for public purpose. In reliance the claimants refer the court to Wade and Forsyth^[1] for the principle of administrative law that “all official power must have a lawful source.” The claimant relies on the amending 2016 Act which had not been enacted to come into effect until some four days after the decision to resume the fixed term estate. Simply the law did not allow the resumption before the coming into operation of the Act.

As well the claimant argued that notice of resumption dated 19 September 2016 issued by the Commissioner of Lands under clause 8 of the first schedule of the grant of the term was null and void for lack of legal authority. For it was the establishment of the Land Board by virtue of the amending Act in 2014 that altered the administrative framework set out in Part Two of the Land and Titles Act (Cap 133) in particular all powers and functions relating to the allocation of interest in land, the development of land and the administration of land was then now vested on the Board rather than on the Commissioner of Lands.
The claimants point to the fact that the notice issued under hand of the Commissioner of Lands rather than that of the Land Board.

The second issue addressed by the claimant [the lack of 6 months notice] is asserted to breach the general rule or proposition that if the law requires certain circumstances to exist or that certain things must be done the court require that they do exist or are done in order for that action to have legal authority^[2]. The claimants say in this case no power was available for the exercise of resumption by a responsible authority for the condition requiring six months’ notice had not been satisfied. The claimants say that these six months’ notice required under section 142A (a) of the Act is a condition precedent that enlivens the Board’s subsequent authority to resume any Fixed Term Estate for public purpose. One month’s notice in this case then, failed the general rule laid down (and to be adopted in this jurisdiction) by Brennan CJ in the Australian case. This issue also raises the argument put forward by the claimant that pursuant to section 8, Constitution of Solomon Islands “no person should be deprived of his property”, a fundamental right which has been breached in this case.

The third issue, the board’s consideration of irrelevant matters and its omission to consider relevant matters, relates principally to the apparent fencing of the perimeter of King George VI school compound, [an irrelevant matter] and the apparent omission to properly consider the obligation on the school to pursue its responsibilities under the Education Act when the land was taken. (I should say the land was vacant land at the relevant time).

Whilst the claimant admits that it is providing services which reflect those provided by the adjacent King George VI school, [an implied admission the resumption “purpose” was available to the Board] it says the Land Board omitted to have proper regard to the fact that the land was purchased by the school for the very purpose under which it was mandated.

The fourth issue is that the Board’s decision is unreasonable in the Wednesbury sense. The claimant points to the Board’s consideration of the King George VI school development plan as immaterial in the circumstances for the Perch school had such a plan and was the registered owner of the term estate. The claimant relied on the case of R v London Borough of Hillingdon, ex parte Islam^[3]. The claimant also adopted a statement of Lord Radcliffe (in an earlier case) where he stated; “ the true and reasonable conclusion contradicts the determination” and that of Lord Lowry; “which is another way of saying that there was no evidence to support the panel’s decision and that he thought therefore to be reversed by judicial review and suitable declaration granted”. The claimant went on to say that there was no actual evidence of the King George VI school development plan in support of the Board’s decision and consequently the Board’s decision was based on [absent] and irrelevant consideration. I should say I am not minded to accept the claimants’ argument for the reasons given later.

Following amended defence to the application for judicial review the Solicitor General made submissions on the Attorney-General behalf. In so far as issue 1 was concerned, the Solicitor General points to the functions and responsibilities of the Board vested in it under the Land and Titles Act after the 2014 amendments. The effect of the amendment the Solicitor General says, is that the Board shall hold the power and functions previously held by the Commissioner of Lands, powers and functions set out in section 8C (1). By the amended subsection (4) of section 4 of the Act;
(4)- subject to the provisions of this Act and any general or special direction of the Board the Commissioner shall, for and on behalf of the government, have power-
(a)- To hold and deal in interest in land subject to section 8(C), and
(b) To execute any interest relating to an interest in land and such powers as are provided for under the provisions of this Act.
(5) In exercise of his powers under subsection (2) of section 143, section 144, subsection (2) of section 172 and Part XIV the Commissioner shall act in accordance with the advice of the Board.

When I have regard to the far ranging power I am not satisfied jurisdictional error as defined in Craig v South Australia^[4] has been made out by the claimants. I accept the Solicitor General’s argument that the Land Board with the Commissioner of Lands controlled lands as owners on behalf of the government and the decision to resume is consistent with powers and functions afforded them by the Act in this case particularly section 4(4) (b), for the power to execute any interest relating to an interest in land is expressed to include the power of resumption^[5] if it may be so described for the act of determining the lease is not “resumption” per se, but rather the determination of the lease in accordance with the conditions set out in the grant, in this case exercise of the power to call up and determine the remaining term. The decision of the Court of Appeal, by ratio decidendi found;
“the reservation expressly gives to the landlord here, the Commissioner, the right to re-enter and resume possession in certain events, namely the intention to use land for public purposes and subject to and limited compensation. In short the right to bring the term to an end. When the landlord terminates the lease in accordance with the reserved power to do so, he takes nothing in the nature of an interest in land from the lessee even though it is true of the lessee loses the right to occupy and use the land. However as the compensation provision in clause 2 impliedly recognises, the occupant loses the improvements made on the land and must be paid for “the actual loss sustained in respect of improved land. Secondly at all events the Commissioner is not seeking to acquire any property of the appellant but simply seeks to resume full possession and use of property that his views by virtue of his right to terminate the lease and accepts the obligation to compensate him for any “actual loss ” he may have suffered.”
Further the Solicitor General was careful to differentiate this claimant’s rights as lessee of the Fixed Term Estate. Any rights touched on by the claimants advocate to be derived from the Land and Titles (Amendment) Act 2016 apply only to Fixed Term Estates created pursuant to section 100 of the Land and Titles Act. That particular section affects estates created by automatic conversion and not by way of grant from the Commissioner. I accept the Attorney General’s argument in relation to the first issue and refuse the declaration.

The Solicitor General argues that the claimant’s contention in relation to the six months notice required before resumption is a misconception, for the operation of the Land & Titles (Amendment) Act was directed towards estates created by automatic conversion, not the claimant’s estate in this case. The amending Act has no bearing on the rights (nor does it mandate such notice) of the claimant in the circumstances of this case. No lawful requirement was incumbent on the Commissioner in such circumstances to give 6 months notice, a notice period referable to s. 142A (2) (a) of the Amending Act.

The third issue relating to irrelevant considerations or omission to consider relevant considerations rather conflates the undoubted power in the Board to recommend “resumption” [of government leased land] for the lawfully mandated purpose, with the other type of resumption where the Government seeks to resume someone else’s land for public purposes. In that case, the reasoning may be subject to scrutiny but on the authority of Wong’s case, where the Government owns the land as lessor, the Government’s right to re-enter and resume possession for public purposes (conceded by the claimant in this case) is not to be fettered by irrelevant considerations. I accept notice was given and I am not satisfied the claimants have a case for compensation where there is no evidence of valued improvements made on the land. In this case, the issue does not arise.

The fourth issue going to the Wednesbury grounds of unreasonableness does not arise. The claimants have had an opportunity to orally present its case to the Land Board, the minutes indicating that the Board had considered the claimant before making its decision. It is not this courts role to place itself in the shoes of the Board and presume to make its own decision. The allegation of procedural impropriety has not been made out. The other Wednesbury grounds, illegality or irrationality as I have indicated do not arise in this case. “Unreasonableness” in the Wednesbury sense is not apparent.

Those declarations sought pursuant to the application I refuse. There shall be judgment for the defendant. Costs of the proceedings are in favour of the defendants. Such costs shall be paid on the third schedule basis.

__________________
BROWN J

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^[1] Wade & Forsyth, Administrative Law, 10th edition Oxford University press 2009 at
^[2] Project blue sky in the Australian broadcasting authority (1998) 194CLR355, 373 – 374
^[3] (1983) 1 AC 688; (1981)3 All E R 901
^[4] (1995) 184 CLR 163
^[5] Anthony Chee Ming Wong v AG & CO-CAC 3 of 2010