Attorney General v Belo [2022] SBHC 105; HCSI-CC 61 of 2022 (16 December 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Attorney General v Belo
Citation:
Date of decision:	16 December 2022
Parties:	Attorney General v Sade Belo
Date of hearing:	6 December 2022 (Further written submission)
Court file number(s):	61 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Accordingly, I will enter summary judgment for claimants
Representation:	Mr Pitry for 1st and 2nd Claimants/ Applicants Ms Manaka for the Defendants/ Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133] S as amended in 2014, S 8 (c) (1) (a) (i), S 8 (c) (1) (a) (b), S 8 (c) (4)
Cases cited:	Solomon Bauxite v Commissioner of Lands [2021] SBHC 140

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 61 of 2022

BETWEEN

ATTORNEY GENERAL
(Representing the Commissioner of Lands and Registrar of Titles)
1^st Claimant

AND:

ATTORNEY GENERAL
(Representing the Ministry of Fisheries and Marine Resources)
2^nd Claimant

AND:

SADE BELO
(Representing Staka Belo Family)
Defendant

Date of Hearing: 6 December 2022 (Further written submission)
Date of Ruling: 16 December 2022

Mr Pitry for 1^st and 2^nd Claimants/ Applicants
Ms Manaka for the Defendants/ Respondent

RULING ON APPLICATION FOR SUMMARY JUDGMENT
Introduction

1. The Commissioner of Lands (“COL”) owns the Perpetual Estate (“PE”) title in PN 191-038-90 (“PN 90”). The COL resumed the same for public purposes from JJ Limited on or around 12/11/2019. JJ Limited is challenging the COL’s resumption. Challenge is pending in the High Court – Civil Case No 13 of 2020. The 1^st and 2^nd Claimants (“Claimants”) filed this claim to remove the defendant and or his family from PN 90 and to take possession of the same.
2. There is no dispute that the COL owns the PE title in PN 90. The evidence also supports the material fact of ownership by the state of PN 90. The only dispute raised in defence is, Mr Belo alleged that, the COL allocated PN 90 to him, as a substitute allocation for another parcel previously given to him, but was not transferred and registered in his name. The previous failed allocation is a land at Koloale – PN 191-029-0101. Because of the failed Koloale land allocation, the COL, on the 18/11/2017^[1], purportedly allocate PN 90, as a substitute allocation to Mr Belo.
3. Consequently, in reliance on the substitute allocation from the COL, Mr Belo assert equitable interest in PN 90. Mr Belo says the allocation is pending finalisation, transfer and registration of PN 90 as an alternative allocation to him. Hence Mr Belo is refusing to move out, as he attempts to complete the required processes and procedures to have PN 90 transferred and registered in his name. The evidence showed that Belo has already paid for a surveyor to carry out survey work on PN 90.

Core Issue(s)

4. The central issue of dispute boils down to “Whether or not the alternative allocation the COL made to Mr Belo, in respect of PN 90, on 18/11/2017 is lawful?” Claimants believe that the defence raising reliance on the alternative allocation the COL made, lacks legal basis. Hence the defence does not have a real prospect^[2] of defending the claimants’ ownership claim. So, claimants applied for summary judgment on 18/08/2022.
5. Clear evidences were filed in Court on the central issue in support of and against the application for summary judgment. Mr Belo’s allocation letter from COL dated 18/11/2017 is disclosed in evidence. Claimants PE title ownership is also disclosed in evidence.

Does the defence have a real prospect of defending claimants’ ownership claim over PN 90?

6. Claimants argued that the COL has no power to allocate crown land under the Lands and Titles Act (Cap 133), as amended in 2014 – “LTA 2014 Amendment”. Attorney General relied on Solomon Bauxite^[3], to argue that, since the LTA 2014 Amendment came into force on 1/12/2014, the COL no longer has legal powers and functions to allocate interests in crown land. Only the Land Board (“LB”) has the power to allocate crown land. This Court noted the shift of power and function to allocate crown land from the COL (formerly) to the LB (current) as follows, in Solomon Bauxite case: -

“The objective of the LTA 2014 Amendment was to remove the monopoly administrative powers and functions that were formerly vested in the sole hands of the COL and the Minister under the repealed LTA and to vest the same in the LB. This was seen as a necessary legislative intervention, because the COL and Minister yielded too much administrative powers and functions over government interests in land. The amendment came into force on 1/12/2014. Essentially the amendment meant that the LB was established to become the main bouncing stage for all administrative powers, functions and decisions relating to government interests in land. The amendment lowered the COL’s former administrative functions and powers to mere implementer of the LB decisions. The COL sits as Secretary to the LB. Under the amendment, it would be fair to say that the COL’s hands were cushioned to an implementer for the LB decision. Where the LB gives clear directives or delegation of duty, then the COL can only act pursuant to the LB’s delegation of powers/duties/functions. Unlike before where the COL has the sole administrative functions and powers to administer and decide on government interests in land. This is why Section 4 of the repealed LTA was removed. So that under the LTA 2014 Amendment, those administrative powers and functions formerly vested in the COL were now vested in the LB.”^[4]
“And then a new Part II A of the LTA 2014 Amendment – established a LB and its powers and functions. The object of the new Part II A amendment is stated in a new Section 8A as follows “The object of this Act is to establish a Land Board and to confer on it all powers and functions relating to the allocation of interest in land, development of land and to ensure that the administration of land is carried out in a fair, transparent and equitable manner to meet the needs and welfare of the people of Solomon Islands”^[5].
“And then the powers of the LB are stipulated in Section 8 (C) (1) (a) – (i) of the LTA 2014 Amendment. I will focus on the powers relevant to the case at hand. The board shall have power to allocate interests in any land in accordance with the provision of the Act and to approve any method of allocation of land and the terms and conditions to be applied – Section 8 (C) (1) (a) and (b). When allocating, the COL can only act under clear written directives from the board – Section 8 (C) (4) read in conjunction with Section 8 (C) (6). It means the LB will decide on allocation and can direct in writing, to the COL to implement its decision on the allocation. Applied to this case, the LB should have decided on the GOP and their respective agreements (allocation of interests in land) as well as the terms and conditions of the allocation. And then the COL may on the Board’s written instructions execute the GOP with either SBL and or Sunway”^[6].

7. Court has to agree with submissions by the Attorney General, that since 2014, the COL no longer has the power to allocate crown land or interests in crown land. Only the LB has that power. Here, the evidence shows that the COL allocated PN 90 to Mr Belo in year 2017, not the LB. The COL acted without legal basis (LTA 2014 Amendment). Hence the allocation is lacking basis in law, is invalid or unlawful or nullified or has no effect in law. So, the defence made in reliance on the allocation from the COL, has no real prospect of defending claimants’ ownership claim, as per the PE register. The defence cannot be sustained in law under the LTA 2014 Amendment – not now or at trial. Court requested Counsel Manaka to make submission on the LTA 2014 Amendment. There was no response. Counsel did not address this legal point in her written submission filed 19/10/2022. Frankly this is not a legal point that can be contended – it is crystal clear that the COL has no powers to allocate crown land since the LTA 2014 Amendment.
8. Accordingly, I will enter summary judgment for claimants. There is no further issue or no real dispute that must go to reach trial, between the parties on the material facts^[7] in dispute – ownership in favour of claimants and allocation by the COL lacking legal basis. Claimants shall have possession of PN 90. Defendant to vacate PN 90 with immediate effect. To avoid any doubt, the plot of land concerned is the land allocated to the Ministry of Fisheries and Marine Resources, for the Ministry’s headquarter expansion. Cost against the defendant on standard basis. Refuse damages. Defendant may still follow his alternative allocation through the proper channel.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Note that COL’s offer letter says PN 191-039-90 and not PN 191-038-90 – whichever parcel is the correct one does not affect my findings on COL lacking legal basis to allocate crown land.
^[2] Rule 9. 57.
^[3] Solomon Bauxite v Commissioner of Lands [2021] SBHC 140; HCSI-CC 204 of 2018 (18^th November 2021).
^[4] Paragraph 9 of Solomon Bauzite decision.
^[5] Paragraph 10 of Solomon Bauxite decision.
^[6] Paragraph 11 of Solomon Bauxite decision.
^[7] Rule 9.66.