Winners Properties Ltd v Permanent Secretary of Communication & Civil Aviation [2022] SBHC 39; HCSI-CC 576 of 2019 (10 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Winners Properties Ltd v The Permanent Secretary of Communication & Civil Aviation
Citation:
Date of decision:	10 June 2022
Parties:	Winners Properties Limited v The Permanent Secretary of Communication & Civil Aviation, the Commissioner of Lands, Registrar of Titles
Date of hearing:	10 November 2021
Court file number(s):	576 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Claim for judicial review filed on 10th October 2019, is hereby dismissed. 2. Cost of this hearing is to be paid by the Claimant to the Defendant.
Representation:	Mr. B. Etomea for the Claimant Mr. B Pitry for the 1st, 2nd and 3rd Defendants. Registrar
Catchwords:
Words and phrases:
Legislation cited:	Solomon Island(Civil Procedure ) Rule, r15.3.16, r15.3.18, r15.3.18 (b) , (c) and (d), r15.3.18 (a), Land and Titles Act S 71 [part IV] Division 2, Land and Titles Act (Amendment) Act 2014,S 3, 8 (c), (5) and (6) Land and Titles (Amendment) Act 2016 S 142, S 142A, S 100, S 142 A (3) (b) Constitution of Solomon Islands S 8
Cases cited:	Anthony Cheng Ming Wong v Attorney General and Commissioner of Lands (CAC 3 of 2010), Korean Enterprise Ltd v AG [2014] SBCA 4

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 576 of 2019

WINNERS PROPERTIES LIMITED
Claimant

AND:

THE PERMANENT SECRETARY OF COMMUNICATION & CIVIL AVIATION
First Defendant

AND:

THE COMMISSIONER OF LANDS
Second Defendant

AND:

REGISTRAR OF TITLES
Third Defendant

Date of Hearing: 10 November 2021
Date of Decision: 10 June 2022

Mr. B Etomea for the Claimant
Mr. B Pitry for the 1^st, 2^nd and 3^rd Defendant. Registrar

DECISION ON CHAPTER 15 CONFERENCE

Faukona DCJ: A claim for judicial review was filed by the Claimant on 10^th October 2019. Under the claim there were nine declaratory and consequential orders as reliefs sought.

2. The dispute concerned a Fixed Term Estate in parcel number 192-017-010 located at Henderson, East Honiara. The fixed term estate was legally registered in the name of the Claimant on or about 25^th August 2006 by the Registrar of Titles.
3. On 9^th September 2019 the Commissioner of Lands exercised its reserve powers under clause 8, schedule 1 of the grant instrument, issued a notice of Resumption for the purpose of extraction of gravel for the renovation of parts of the Airport and construction.
4. The purpose of Chapter 15 Conference is a mandatory afforded by r 15. 3.16 of the Civil Procedure Rules, that as soon as practicable after the defense has been filed and served, the Court must call a conference where the Court must consider the matters contained in rule 15.3.18.
5. Rule 15.3.18 states the Court will decline to hear the claim unless it is satisfied that;
   • (a) That the Claimant has 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.
6. The rule advocates the Claimant must satisfy the Court that he fulfils all the requirements. Should he fail on one requirement the Court will decline to hear the claim. The rule placed stringent responsibilities upon the Claimant. This is to show as a threshold, or filter, to be dealt with by quick perusal of the papers and the Court is not intended to go into the issues in great depth and its aim is to exclude hopeless or clearly groundless case.
7. The Defendants by paragraph 6 of their submissions do not take issue with requirements of rule 15.3.18 (b), (c) and (d) but rather challenge or contend that the Claimant does not satisfy the requirement that it has an arguable case required by r 15. 3.18 (a).

Whether the resumption notice issued for PN192-017-010 by 1st Defendant lawful.

8. The Counsel for the Claimant submits on this point portraying that the resumption notice issued for the property legally owned by the Claimant is unlawful, and it contradicts S.8 of the Constitution.
9. S. 8 of the Constitution prohibits compulsory acquisition of any property, provided acquisition is necessary or expedient in the interest of defense, public safety, public order, public morality, public healthy, town or country planning etc for development and utilization as such manner as to public benefit.
10. The Claimant has misconceived the law on resumption settled in the case of Anthony Cheng Ming Wong V Attorney General and Commissioner of Lands^[1].
11. S. 8 of the Constitution concerns with compulsory acquisition of customary land. S. 71 of the Land and Titles Act identifies under Part IV, Division 2 of the Act. The process to follow in compulsory acquisition commences with 71, where it appeared to the Minister any land is required for public purposes, he may make a declaration and require the same to be published in a manner he thinks fit.
12. It would be acknowledged that the Constitution provides for the legal basis, but if the Minister thinks that a land is required for public purposes then he commences the process as required under Part V Division 2 of the Land and Titles Act.
13. In respect to resumption of property the Commissioner has the reserved power to exercise under clause 8, 1^st Schedule of the grant instrument. And it is not compulsory acquiring of property from the Claimant. Therefore, the Claimant cannot depend on law within the meaning of S.8 of the constitution; the Constitution is inapplicable here and the terms of the grant justified the action taken by the Commissioner. Thus the Claimant has no arguable case, it has misconceived and misinterpreted the law and hence cannot gain assistance or support for reliefs 3 and 4 as its primary and constitutional contention. In fact, the reliefs sought in the claim are irrelevant and does not in any way contrary to Section 8 of the Constitution.

Arguments under Sections 3, 8(c), (5) and (6) L&T (Amendment) Act 2014 and S.142 of Lands & Titles (Amendment) Act 2016.

14. The Counsel for the Claimant argues that the Commissioner by issuing notice for resumption to the Claimant on 9^th September 2019, had breached the amended provisions, as above.
15. S. 3 of Lands & Title (amendment) Act 2014 states, “This Act shall be administered by the Board and a Commissioner of Lands who shall be assisted by a Registrar”.
16. In my respective view the word “and” joining the Land Board and the Commissioner of Lands simply mean that both the Land Board and the Commissioner have equal powers to administer the Land and Titles Act. It does not mean the Land Board has superior power than the Commissioner, except where it expressly stated by any provision of the Act.
17. Originally the land was granted to Mr. Edison Saeni on 20^th April 2003. Mr. Saeni then transferred the title to Mr. Dennis Kwan on a date in October 2003. On 25 August 2006 the land was transferred to the Claimant who is the current title holder.
18. The 1^st Schedule of the grant instrument is the terms of the grant. The Grantor was the Commissioner of Lands and the Grantee should be the Claimant. Clause 8 of the 1^st Schedule quite clearly stated that the Grantor has the right to give one (1) month notice in writing to the Grantee, to take back any land or any such parts of the land as may be needed for roads or other public purposes.
19. Until the grant instrument changes its features, instead the Grantor who is the Commissioner of Lands is replaced with the Land board, the Commissioner by its official office is still party to the grant instrument agreement.
20. Therefore it is neither unlawful nor contradiction for the Commissioner to issue the notice of resumption because its office is still a party to the grant instrument agreement. Of course there is no mention of the Land Board in the grant instrument. Hence by exercising the powers vested on the Commissioner under clause 8 is no way wrong or Contradictory to S. 3 of the Land and Titles Act.
21. The Claimant further argues that the issuant of notice by the Commissioner for resumption contradicted S. 142A of L ands & Titles (Amendment) Act 2016.
22. S. 142 A in the Amendment Act of 2016 deals with perpetual estate and freehold estate as specified in S.100 of Lands & Titles (Amendment) Act. Any perpetual estate registered in the names of foreigners which by 31^st December 1977 shall be converted automatically to a fixed term estate for 75 years at an annual rent...
23. Subsection (2) of S.100 identifies free hold interest which shall also apply by converting such interest to a fixed term interest in the like manner as in subsection (1).
24. The application of S. 142 A of the Amendment Act 2016, in my view, refers to two occasions. One, at that time of the conversion if the Board wishes to resume all or part of the converted land, it may do so by giving the owners six (6) months written notice of resumption and pay reasonable compensation for the resumption.
25. In considering reasonable compensation the Board must consider S. 142 A (3) whether the owner had improved the land, and if so the value of the improvement. By subsection 4 the remaining period the owner would have held the estate and sub-section (c) the condition of the land at the time of resumption.
26. In the current case we are not dealing with a land which had just been converted from a foreigner owning perpetual estate to fixed term estate. S. 142 A (3) (b) mention the remaining period for which the owner would have held the estate. That alone is one of the conditions the Board should consider when determining the amount of compensation for resumption.
27. That consideration hinted that estates created by S. 100 of Land & Title Act were those PE or Lease-hold owned by foreigners which converted to FTE with a lesser term.
28. The original owner of the land is question was first granted with FTE title. The title was never converted from PE or leasehold. The original owner is a Solomon Islander. Thereafter it was transferred to Dennis Kwan then to the Claimant on 25^th August 2006.
29. In my respectable view the action taken by the Commissioner in resuming the land did into contradict the relevant amendment provisions of the Land & Titles Act 2014 and 2016.

Indefeasibility of title.

30. The Claimant sought as one of the reliefs in its claim that its registered title over the property is protected under indefeasibility principal therefore the resumption was wrong.
31. In its written submissions the Claimant did not mention or submit any written argument on that issue. However, what the Claimant failed to understand is that SS 109 and 110 of Land & Titles Act provide exceptions to indefeasibility of title over the property. The exceptions are the conditions affecting the interest and as shown in the Land Register. Under the exceptions the Claimant’s title over the property can be defeated. And rightly it was defeated when the Commissioner exercised his reserve power in resuming the property on 9^th September 2019.

Public purpose.

32. The Claimant’s argument in reference to public place is again based on S. 8 of the Constitution which prohibits compulsory acquisition or taken possession of right over property, except where such is necessary or expedient in the interest of defense, public safety, public order, public morality, public healthy, town or country planning or the development or utilization of any property to promote public benefit.
33. The major reason attributed by the Claimant is that the resumption was for the extraction of gravel for the use at Henderson airport and is not for promoting public health but indirect economic through employment opportunities or later use of the airport.
34. Again I must reiterate that S. 8 of Constitution concerns with compulsory acquisition under Part V, Division 2 of the Land and Titles Act. The Counsel for the Claimant absolutely misconceived the law. The law on resumption is totally different form the law in compulsory acquisition which concern customary land and Crown land.
35. This current case is pitched on the resumption of property and not on compulsory acquisition of customary land. They are two different processes. One cannot be used to supplement the other.
36. The Commissioner’s reason for issuing notice of resumption was upon receiving a letter from Mr. Moses Virivolomo, the Permanent Secretary for the Ministry of Communication and Aviation, who stated that the Ministry had discovered problems with the status of the Airport that need to be addressed to maintain the safe operation of the Airport.
37. In particular the gravel from said land is for rehabilitation renovation of some parts of the airport and for construction of a new International Departure Terminal Building.
38. The Court of Appeal in Korean Enterprise Ltd V AG^[2], defined in a nutshell, the meaning of public purpose in general term; public purpose must be something for the direct general benefit of the community such as the provision of a service by the Government.
39. It apparently had been done. When the gravel was extracted, it was for the purpose for contributing in manner providing service by the Government for the use of general public accessing the airport services. That is exactly a general benefit by public and community at large.
40. Therefore, the act of resuming the property back to the Government was for good and public purpose, a service the Solomon Islands Government obliged to provide.
41. Having discussed the issues which parties agreed as point of contention, I find the Claimant has no arguable review claim. In fact, the Claimant has failed to satisfy the Court that it has an arguable case. The other three requirements are not taken as issues by the Attorney- General. Therefore, I will decline not to hear claim, but dismiss it with costs.

Orders:

1. Claim for judicial review filed on 10^th October 2019, is hereby dismissed.
2. Cost of this hearing is to be paid by the Claimant to the Defendant.

The Court.
Hon. Mr. Rex Faukona.
Deputy Chief Justice.

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^[1] CAC 3 of 2010.
^[2] [2014] SBCA 4; SICOA-CAC of 2013 (9 May 2014).