Piko v Commissioner of Lands [2020] SBHC 63; HCSI-CC 626 of 2019 (11 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Piko v Commissioner of Lands
Citation:
Date of decision:	11 August 2020
Parties:	Rolland Piko v Commissioner of Lands
Date of hearing:	29 July 2020
Court file number(s):	626 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Higgins J
On appeal from:
Order:	I therefore have no doubt that the stated purpose for resumption of FTE parcel no. 192-004-1128 by the first Defendant was and was legitimately for a public purpose. I so declare. I will hear the parties as to any ancillary orders.
Representation:	R. Mark for Claimant N. Ofanakwai for Defendant
Catchwords:
Words and phrases:
Legislation cited:	Australian Constitution (S.5 i (xx1)), Land and Titles Act [cap 133] s 76, s71, 71 (1), s75, s78, s79, Constitution of Solomon Islands cap II
Cases cited:	Korean Enterprises Limited v AG [2014] SBCA4, Talasia v AG [2012] SBHC 85, Sharpless v Philadelphia [1853] 21 Pa 147, Fallbrook Inigetion District v Bradley [1996] 164US112, Berman v Parker [1954] 348US26, Nelungaloo Pty Ltd v Commonwealth [1947] 7SCLR495, Burton v Norman [1952] 86 CLR169.

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 626 of 2019

BETWEEN

ROLLAND PIKO
Claimant

AND:

COMMISSIONER OF LANDS
Defendant

Date of Hearing: 29 July 2020
Date of Decision: 11 August 2020

R. Mark for Claimant
N. Ofanakwai for Defendant

JUDGMENT

In this matter the Claimant seeks a declaratory order that the acquisition of Fixed Term Estate Parcel Number 192-004-1128 made by Order of 20 August 2019 purportedly pursuant to s. 76 of the Land and Titles Act [cap 133] is void and of no effect.

The facts of the matter are not in dispute.

On 5 June 2012 the 1^st Defendant offered the Claimant the FTE referred to above. The Claimant duly paid the required premium, first year rent and other fees. The FTE was duly granted on 6 June 2012. The Claimant carried out some preliminary works on the site intending to erect a 3 storey apartment building on the land.

However, on 20 August 2012 the 1^st Defendant caused to be published in the Solomon Star newspaper (issue no. 7299) a notice of intention after one month to resume the said FTE on the ground that the land was required for a public purpose being for Biosecurity Solomon Islands infrastructure, namely, office and staff housing.

The legislative support for such a process is to be found in ss. 71 ff of the L & T Act. The Constitution of Solomon Islands Chapter II, provides for specified rights and freedoms including, per s.8, from deprivation of property rights.

It does allows such deprivation as is s.8 (1) (a) ... necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town or country or the development or utilisation of any property in such a manner as to promote the public benefit....

In that context Division 2 of the Land and Titles Act (LTA) provides

“71-(1) whenever it appears to the Minister that any land is required for any public purpose, he may make a declaration to that effect and require the same to be published in such manner as he shall think fit”.
By virtue of s.75 (LTA)
“On the publication of a declaration that land is required for a public purpose, all interests in or affecting the land specified in the declaration shall, subject to section 76, cease to subsist, and, subject to section 78, the right to use, occupy and enjoy the land ... shall vest in the Commissioner [1^st Defendant] for and on behalf of the Government ...”

S.76 enables interested persons to apply to quash the declaration if it is considered by the High Court that “the purpose referred to in the declaration is not a public purpose”.

A person whose interest is acquired under this Division is entitled to claim compensation under s.79.

The Claimant rests his case on one contention, that is, that the resumption of the land was not for any valid public purpose. It is conceded that, otherwise, the resumption process was not flawed.

The Parties have made reference to Korean Enterprises Limited v AG [2014] SBCA4.

That case involved the acquisition of land for the stated public purpose of “developing fisheries in the Solomon Islands”. The method to be adopted for giving effect to that purpose was to offer the land in question to various Korean private investors. The Korean investors were identified by a consultation between the SI Government and the Government of the Republic of Korea.

The Court of Appeal had to consider the meaning and scope of the concept in context of public purposes. Their Lordships (Goldsbrough P, Williams & Sir Gordon Ward JJA) noted (ps 4).

“There does not seen to be any single accepted definition of public purpose. In general terms it must be something for the direct general benefit of the community such as the provision of a service by the Government. It would not be sufficient that there was, for example, an indirect benefit to the community through an increase in government revenue from a commercial activity or an increase in employment”.

Their Lordships cited with approval the comments of Chetwynd J in Talasia v AG [2012] SBHC 85 Act.

“... a private purpose which has some laudable elements and which would no doubt benefit the locality with increased work opportunities and increase income, does not transmute to a public purpose because of those laudable elements and benefits. The purpose of the acquisition of the land was to assist a purely private commercial concern to acquire the land it needed for the development of a resort.

It follows that the achievement of indirect economic benefits or the avoidance of economic harm would not, per se, transmute a private commercial project into a “public purpose”.

The public interest in avoiding corrupt dealings entails a strict scrutiny of the acquisition powers to ensure that they are not abused.

The Court of Appeal noted that the purported “public purpose” was both vague and consistent with the indirect economic effect of a fisheries enterprise being aided in its development for the enrichment of private investors.

The Order declaring the acquisition quashed was made accordingly.

It is to be noted that the grant of the FTE in this case contained a reservation that:

“The GRANT is subject to the reservation in favour of the Grantor (i.e. the First Defendant) of the right, subject to one month’s notice being given in writing to the Grantor (s) to resume, without payment to the grantee (s) (i.e. the Claimant) of any compensation for actual loss sustained in respect of improved land, such portions of the land comprised in the estate as may at any time be required for the construction of roads or other public purposes”.

It is apparent that the requirement for the grantor to give himself one month’s notice of intention to resume ownership unencumbered of the land is nonsensical.

I note also the Sworn Statement of Francis Tsatsia of the Ministry of Agriculture and Livestock. This is not relevant to the present dispute so far as the resumption of the subject land is concerned. It does not nor is it alleged to qualify the Claimant’s title to the land.

That evidence may be tendered to cast light upon the public purpose of the current resumption. It does support a conclusion that the subject land is suitable for quarantine purposes and had, prior to the grant to the Claimant, been earmarked for that purpose. I take judicial notice that it is an important public protection to have quarantine facilities near ports of entry both sea and air. Indeed, given the present pandemic of Covid -19, that importance is to be emphasised. A touchstone is whether private interests ought to yield to communal needs. This is, in the US, encapsulated in the doctrine of eminent domain (see Sharpless v Philadelphia [1853] 21 Pa 147, Fallbrook Inigetion District v Bradley [1996] 164US112). Indeed in Berman v Parker [1954] 348US26 Supreme Court regarded public purpose as coterminous with “public welfare”. The protection of the public from bio-hazards such as infections is a clear ‘public purpose’. That entails the use of quarantine with all necessary infrastructure including staff.

For example, it could not, in my view, be credibly argued that Customs officers should not be deployed and supported by appropriate infrastructure so as to, inter alia, interdict borders to prevent harmful biological agents, including the holding of persons in quarantine.

I therefore have no doubt that the stated purpose for resumption of FTE parcel no. 192-004-1128 by the first Defendant was and was legitimately for a public purpose. I so declare.

The acquisition power under the Australian Constitution (S.5 i (xx1)) is not limited to acquisition for public purposes but there is a requirement that it be on ‘just terms’ that includes, but is not limited to, adequate compensation, see Nelungaloo Pty Ltd v Commonwealth [1947] 7SCLR495. Nor does it limit or prevent the imposition of criminal or customs forfeiture by legislation such as Customs, Taxation or Proceeds of crime enactments, see Burton v Norman [1952] 86 CLR169.

I will hear the parties as to any ancillary orders.

THE COURT
Justice Terence Higgins
PUISNE JUDGE