Attorney General v Eke [2019] SBHC 79; HCSI-CC 150 of 2017 (18 October 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Attorney General v Eke
Citation:
Date of decision:	18 October 2019
Parties:	Attorney General v Abraham Eke
Date of hearing:	4 October 2019 (Closing oral Submission)
Court file number(s):	150 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Order costs against Government for this case. I will also assess the undertaking as to damages that normally goes with the injunction issued to claimant, under Rule 7.38.
Representation:	Mr A Poa and Ms. L Fineanganofo for the Claimant Mr. G Fa’aitoa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Environment Act (1998), s 17 (1) 19
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 150 of 2017

ATTORNEY GENERAL
Claimant

V

ABRAHAM EKE
Defendant

Date of Hearing: 4 October 2019 (Closing oral submission)
Date of Judgment: 18 October 2019

Mr. A Poa and L Fineanganofo for the Claimant
Mr. G Fa’aitoa for the Defendant

JUDGMENT

1. Mr. Abraham Eke is a local businessman. Mr Eke holds a lease to the Fixed Term Estate (FTE) in PN 191-038-111 (PN 111), since January 2013^[1]. Mr. Eke wanted to develop PN 111. It is normal that once a business person has intention to develop a piece of land, he/she would want to progress his/her plans quickly. Time is money to everyone. But more so to every business person.
2. And so by year 2015, Mr Eke moved to develop PN 111. Mr. Eke applied for a development consent (“dc”) on 11^th June 2015^[2], pursuant to Section 17 (1) of the Environment Act 1998 (No. 8 of 1998). Sometime in 2016 Director assured Mr. Eke that his application will be published^[3]. Mr. Eke, his officers and his agent (John Noni) made follow up contacts with the Director^[4]. But by end of 2015 and whole of 2016, nothing happened. Application not published and no proper direction, instruction or response from the Director. So in early 2017, Mr Eke went ahead with his plans to develop PN 111 (started reclamation). This caused the Director to jump up. On 15/3/2017, Director issued a “Stop Notice” to Mr Eke. Then in April 2017, the Director moved with some urgency to publish the Public Notice. One wonders why Director did not do anything in 2015 and 2016. Yet this development is only in Honiara. Director is in Honiara. Mr Eke is in Honiara. But Director could not even attend to this work. And there is no explanation at all by the Director on delay. Was Director aware that to every businessman, time means money? Plans must be executed on time. Timelines have to be met. Financial commitments will fall in. Is this not why defendant say in evidence that follow ups were made with Director on the dc? Follow up actions by defendant, his officers and his agent. Yet there was no proper direction forthcoming.
3. The Director has a statutory duty to ensure business progresses. For a business or investment or development cannot take place without a dc from the Director. And Director must act to facilitate investments to happen in a timely manner. That did not happen here. Director did nothing in 2 years (June 2015 - December 2015 and whole of 2016). Director was only forced to work on the dc, by the defendant’s action to execute his business plans (by developing PN 111, through reclamation). Director through Kereseka Potakana was corresponding with Mr. Eke in September 2017, regarding the dc. But what use was that correspondence when this Court has already issued injunction to stop Eke, prior to September 2017? Director forced a problem on Mr. Eke by very late response to process the dc. Mr. Eke could not wait in the dark for 2 years. And so commenced work. Then Director run to this court and stopped Mr. Eke from work (15^th June 2017 Injunction). Then Director was in September 2017 calling on Mr. Eke to talk about the dc. No response from Mr. Eke. Any response on the dc had no meaning I guess, because Mr. Eke has a Stop Notice and Injunction against him. And the case is yet to complete in court.
4. Did the Director acted reasonably? Did the Director dispense with his duty or did he failed? Did Director come to court with clean hands? All of these questions could be answered in the negative.
5. Doing nothing in 2 years to respond to a waiting businessman in Honiara is not acting reasonably. The businessman needs direction. And cannot just sit on his investment plans. The Director failed his duty to work on the dc. Director did nothing, not until he was forced to, by Mr Eke executing his plans to develop PN 111. Director did not come to this court with clean hands. For Director cannot hold a business at hostage. Director must facilitate developments. And not impede developments. And dealing with business people means, Director must act in a timely manner (resume discussion on timely manner below at paragraph 7.5).
6. I will repeat, the evidence shows that for 2 years (half of 2015 and whole of 2016) the Director did not act to facilitate Mr. Eke’s development intentions through the dc. In 2017, Director was only forced before he/she started to act on the dc. It is because of the Director’s failure, that the whole problem came about, including running to this Court. Director did not come to this court with clean hands. If it was difficult to make the dc in 2 years, Director should have given clear instructions. You cannot just leave the business entity in the dark.
7. Before conclusion and orders, I will answer the 5 issues^[5] posed for trial as follows:
   • 7.1. Approval or dc ought to have been obtained by the defendant under Section 19 of the Environment Act (1998). The defendant took no issue. And so the court concludes in the affirmative on this issue.
   • 7.2. Without approval or dc, it was illegal against the Environment Act 1998, to commence development on PN 111. Defendant concedes. And so the court found in the affirmative.
   • 7.3. Because the development was illegal, the defendant was bound to stop. Again court found in the affirmative because defendant took no issue.
   • 7.4. Fourth issue, court will not make conclusion on because both parties submit that it is a matter best left for parliament to address through legislative reform.
   • 7.5. Fifth issue is about defendant’s legitimate expectation that his application lodged on 11 June 2015 would be proceed in a timely manner. In view of what I discussed in paragraphs 1 to 6, I will find for the defendant on this issue. Mr. Eke has intention to develop PN 111. Cannot develop without Director issuing approval or dc. So Mr. Eke applied on 11^th June 2015. Waited half of 2015. Waited for whole of 2016 on the Director to process the dc. Having applied and on making initial contacts and follow up contacts with the Director, Mr. Eke had a “statutory expectation” for the Director to respond in a timely manner. The Environment Act 1998, obliged the Director to act quickly in 15 days to kick start the process for Mr. Eke’s dc, by doing two things laid down in Section 17 (2) (a) and (b). The two things are Director should have (i) requested Eke to submit his development application along with public environment report and other things Director may require. And to (ii). Request Eke for a development application along with environment impact statement and other things Director may require. Director did none of these two things in 15 days. For as I found above Director did nothing in 2 years. Sometime in 2016 Director assured Eke that his application will be published. This is not acting in 15 days, because Eke applied on 11^th June 2015. I found on the evidence, that Director did nothing on the dc in 2 years. Director gave no clear instruction on the two things that Eke ought to have submitted. Mr. Eke has a commercial interest to develop PN 111. Mr. Eke cannot develop without Director giving a dc. Director failed to act in 15 days to kick start the process for granting or refusal of the dc. Mr. Eke was waiting on the Director for clear directions on processing the dc in 2 years. Clear direction ought to have come in 15 days (Repeat Section 17 (2) (a) and (b) above). Clear instruction was necessary because Director has power to even waive the two requirements under Section 17 (2) (a) and (b). Waiver power is under Section 17 (4). Mr. Eke had a statutory expectation on the Director under the Environment Act. That statutory expectation is for Director to kick start the processing of Eke’s application for a dc in 15 days. Director failed to act in 15 days. And Director did not act in 2 years. Director failed Eke’s statutory expectation miserably by a delay of 2 years. My what! Unreasonable! I prefer to call it statutory expectation and not legitimate expectation. Statute says Director must act in 15 days to facilitate Eke’s development intentions. And that’s what Mr. Eke expected, under Statute. So I call it statutory or legal expectation. Legitimate expectation definition does not quite fit the facts of this case.
8. In view of what I say in paragraphs 1 - 6 and 7.5, I exercise discretion to find and declare that the defendant breached Section 19 (1) of the Environment Act (1998), assisted by the Director. Assisted by Director’s failure to process the dc in a timely manner. That is to say Mr. Eke carried out the development without a dc in breach of Section 19 (2), but assisted by Director’s failure. As to relief number 2, I will not stop defendant from developing PN 111. Defendant can resume development of PN 111, complying with the relevant laws. Director is to facilitate the dc as per the law he/she administers. And to do it in a timely manner. Work on the dc has started in later part of 2017. It should be brought to completion in accordance with the requirements of the Environment Act. I will order costs against Government for this case. I will also assess the undertaking as to damages that normally goes with the injunction issued to claimant, under Rule 7.38. Should there be a waiver from undertaking, I will deal with at assessment hearing.

THE COURT
JUSTICE J A KENIAPISIA
PUISNE JUDGE

---

^[1] Agreed Fact No 1 – page 111, Court Book, read with the Lease register on page 8 of Court Book.
^[2] Agreed Fact No. 4.
^[3] Agreed Fact No. 5.
^[4] Statement by John Noni –paragraph 10 (1), at page 56 of Court Book.
^[5] See Page 113, Court Book, for Agreed Issues.