Uta Shipping Co Ltd v Commissioner of Lands [2021] SBHC 35; HCSI-CC 411 of 2019 (3 April 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Uta Shipping Co. Ltd v Commissioner of Lands
Citation:
Date of decision:	3 April 2021
Parties:	Uta Shipping Company Limited v Commissioner of Lands, Attorney General
Date of hearing:	17 February 2021
Court file number(s):	411 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	2. The Court will not hear the claim for reasons outlined above and therefore strike it out according. 2. Costs of this hearing should be paid by the Claimant to the first defendant.
Representation:	Mr. E Olofia for the Claimant Mr. D. Damilea for the Defendants (1) and (2)
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007 r 15.3.15 and 15.3.18, r 15.3.19, r 15.3.20, r 15.3.18 (c), r 15.3.18 (b), r 15.3.18 (b), Land and Titles Amendment Act 2016 section 8 (b) (a) and (b), section 71 Part V, Division (1)section 60-70 Division (2) section 71-85, Land and Titles Act, the Amendment Act 2014
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 411 of 2019

BETWEEN

UTA SHIPPING COMPANY LIMITED
Claimant

AND:

COMMISSIONER OF LANDS
First Defendant

AND:

ATTORNEY GENERAL
(Representing the Land Board)
Second Defendant

Date of Hearing: 17 February 2021
Date of Decision: 3 April 2021

Mr. E. Olofia for the Claimant
Mr. D. Damilea for the Defendants (1) and (2)

DECISION ON CHAPTER 15 CONFERENCE

Faukona DCJ: This is chapter 15 conferences, a hurdle the parties have to proceed through as required by Rule 15.3.15 and Rule 15.3.18.

2. The purpose of this hearing is to determine and find out whether or not:
   • (a) The Claimant has as an arguable case; and
   • (b) The Claimant is directly affected by the subject matter of the Claim and
   • (c) There has been no undue delay in making the claim; and
   • (d) There is no other remedy that resolves the matter fully and directly.
3. By the requirement of Rule 15.3.19, the court has to consider the papers and hear arguments which I did. If the Court is satisfied that the Claimant does not fulfill even one of the requirement under Rule 5.3.18, then the court is bound not to hear the claim and strike it out according to Rule 15.3.20.

Brief background:

4. The Claimant obtained its title to PN-191-031-65 after a purchase agreement endorsed with Mr. Collin Tekaha who sold the land for a transfer consideration of one million dollar (SI$1,000,000.00). That occurred in June 2018. On 13^th July 2018 the Claimant successfully registered the FTE in PN: 191-031-65 in its name.
5. On 13^th February 2019, less than a year after obtaining the title. The first Defendant (Commissioner of Lands) issued a Notice of Resumption pursuant to the grant to James Fung and Julie, and a further notice was published in the Solomon Star News Paper on 14^th February 2019.
6. I noted the land in issue is located immediately outside of Lawson Tama stadium which currently used by taxi’s and parking, in particular when games are on in the stadium.

Limb (a) arguable Case.

7. The test for arguable case is not merely a casual perception on issues raised by the Claimant and then concluded by enunciating they are arguable issues/case. The Court has to investigate to find out whether the issues stand to be argued are real issues for argument. The prospect of arguable case may not render it arguable but may fall short, or in other words not relevant, hence not a valid argument. The Defendant has nothing to proof and required to meet a legal obligation, but may argue the issues as raised are none justiciable.
8. The Counsel for the Claimant outlines eight arguable points in his submissions. On the first issue the Counsel argues that the Commissioner of Lands can hold or deal with interest in land pursuant to Section 4 of the Land and Title Act, subject to the powers of the Land Board under Section 8 of Land Act (as amended). It means the Commissioner can only act upon any general or special direction of the Land Board before exercising its power under Section 4 of the Land and Titles Act under the requirement of Section 8(b) (a) and (b) Amendment) Act 2016.
9. It would appear the Counsel is taking cognizance of the fact that at each occasion where the Commissioner in carrying out his functions under Section 4, he should obtain prior written directive from the Board. That may be on a general view, but for other special directions, it is my view, depend on what manner of land dealing the Commissioner is in pursuit.
10. In the current case apart from the Commissioners subjective function under Section 8(a) and (b) of the amended Act, the Commissioner has a clear and precise function vested and is bound by the grant instrument. Clause 3 of the grant of Fixed Term Estate instrument is not a mere ordinary instrument. It was, and contains terms and conditions which the signatory parties to the instrument were bound by. The grant instrument is like a contract of its own and should a party breached the other party will sue on that basis.
11. Clause 3 has vested vast reservation power upon the Commissioner of Lands. Whether the legal owner of a registered estate has developed it or not, if that such portion of land at any time is required for the construction of roads or other public purposes, the Commissioner (as the Grantor) subject to giving one month’s notice in writing to the Grantee, resume without payment for unimproved land, or payment of compensation in respect to improved land.
12. With a clear construction of the clause, the Commissioner does not need the Land Board for direction before he can exercise his function. The function the Commissioner exercises in this case has already being granted by the grant instrument signed by both the Granter (Commissioner) and Grantee as an agreement, for the lease of Crown land.
13. Therefore I do not see that is an arguable point.
14. On the second issue for which the Claimant propose to argue under Section 71 of the amendment Act, that the Minister of Lands has the prerogative powers to declare that a land is required for any public purposes.
15. I do not seem to cite any amendment to Section 71 in 2014 Land and Titles (Amendment) Act. What I note is Section 71 of original Act which provide for the Minister for Lands as it appears to him and where required, make declaration that a particular land is required for public purposes, and the same to be published in such as he thinks fit.
16. Unfortunately Section 71 of Land and Tittles Act is part of Part V which deals with customary land acquisition not crown land. Division one (1) Section 60-70 deals with acquisition process where the Commissioner wishes to purchase or lease customary land. Divisions (2) is the compulsory acquisition of customary land, from Section 71-85. Section 71 which the Counsel relies on is a declaration by the Minister of a particular customary land to be acquired and used for public purpose, of which such declaration has to be published.
17. The Minster’s power to declare land for public purpose has nothing to do with resumption of Crown land by notice issued by the Commissioner of Lands. There are two different issues require segregate functions. They have never aligned to one another, neither substitute, nor integrated.

Change of purpose for land use.

18. The Claimant’s another arguable case is that the first Defendant had failed to take action to change the purpose and land use after the date of transfer to the date notice of resumption was issued.
19. Clause 3 again of the grant is so precise and concise vested upon the grantor a subjective and reserve right to issue notice of resumption to FTE holder, should need arises for construction of road or other public purposes; in this case the reason for other public purposes is relevant and take precedent. There is no need for any process to comply with, or a declaration of public purpose concerning the land by the relevant resumption, is held high than the legal title to the land. It means public purposes development is for the benefit of public and is a priority which rated higher as compared to legal ownership to crown land. The word subjective used in the grammatical construction of Clause 3 of the grant impose public interest as higher than individual or co-operative interest as far as purpose and use of land in concern.
20. Again clause 3 provides for a conclusive information dissemination as to the intention of the Commissioner of Lands. The manner in which the grantee be informed, that is by one months notice is well expressed in the clause. That had been done notice been issued. I do not seem to see any reckless or negligent of duty by the first Defendant.

Obligation to develop land for members of public.

21. The Claimant also affirm the prospect of arguing that a public authority having authority ever the development of lands in the area fated to establish public requirement or obligation to develop the land for good and interest of the Community. And by establishing the public purpose forward the request to the land board to change the purpose which the Minister may declare the purpose for land use under Section 71.
22. The procedures the Counsel for the Claimant attested to in him submission is not provided for in the Land and Titles Act, the Amendment Act 2014, or the Rules, or under any law meantime applicable in Solomon Islands.
23. If the Counsel so persisted, he needs to read the sworn statement of Mr. Alan McNeil filed on 5^th November 2020. Exh “AJM3” a content of master plan for competition sites compiled and filed by National Hosting Authority in its preparation for Pacific Games 2023, a high priority for DCGA Government.
24. Attachment of the report is the promise point. The view of the Authority is that removing the parking space will compound public events to take place. And that the space should be best used for Sports zone rather than commercial zone which may cause problems poring threats to pedestrians and public. The Authority also recommends that in the next 5-10 years the promise point area should be retained for parking support. Currently it supports parking space for HCC Sports area including Multi-Purpose Hall and Lawson Tama field which will be used during Pacific Games.
25. The plan in fact had been drawn before a copy was sent to the Commissioner of Lands on 9^th July 2019. The claim in this case was filed on 19^th July 2019. Therefore the argument holds no value because the report was drawn and filed well before the claim was filed.
26. In the final analysis, I am convinced that the arguable case which the Claimant advance to fulfill Rule 15.3.18(c) is superficial which I am not satisfied with at all.
27. In relation to requirements under Rule 15.3.18(b) and (c) there is no issue needed to comment on. In fact there can be no dispute that the Claimant is affected by the subject matter of the claim, and as such urge him in the circumstances, therefore acted by filing this claim which was within time as required by Rule 15.3.18(c). By responding instantly there has been no undue delay in making the Claim.

Other remedy to resolve the matter fully and directly.

28. The Claimant seems not to pursue alternatives as suggested by Rule 18.3.18(d). The argument by the Claimant as reflected in the submission seems to redirect the requirement to focus on compensation payment and reimbursement of his losses. That could be an option, however, the other option suggested by the Counsel for the first Defendant, is to sought reallocation of land cite despite land scarcity in the city.
29. Whilst that should be viewed as an optional remedy, there is no guarantee but worth trying. By approaching the first Defendant with that option, perhaps a remedy could be possibly concluded.
30. From reading of the claim, the Claimant did not possess in mind any optional remedy. What he claims is flatly a wrong process applied by the Commissioner of lands in issuing notice for resumption. Hence, sought reliefs in the nature of declaratory orders to quench the action taken by first Defendant. There is no privilege to open a gap for selection of optional remedy. What the Claimant sought are declarations for breach of law and procedures. As a result rectifications for breach of law and procedures ought to be declared, following rectification of the register. There is no relief sought in the claim for compensation for loss sustained or partial development.
31. The Claimant in fact misconceived himself by being over optimistic to resume to high nature of claim, than resort to well considered and constructive facts and law before finalizing his claim. As a result he messed up in his entire submissions. I do not satisfy that the Claimant has fulfilled the four requirements as spell out in Rule 15.3.18(d).
32. The rule is clear, should one requirement is not established the Court cannot hear the claim and must strike it out pursuant to Rule 15.3.20.
33. I am not satisfied the Claimant has fulfilled requirements in Rule 15.3.18(a) and (d), therefore refuse to hear the claim and strike it out accordingly.

Orders:

1. The Court will not hear the claim for reasons outlined above and therefore strike it out according.
2. Costs of this hearing should be paid by the Claimant to the first defendant.

The Court.