Peroshma Land Purchase Co-Op Society v Attorney General [2023] SBHC 85; HCSI-CC 226 of 2023 (12 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Peroshma Land Purchase Co-Op Society v Attorney General
Citation:
Date of decision:	12 September 2023
Parties:	Peroshma Land Purchase Co-Op Society v Attorney General
Date of hearing:	23 August 2023
Court file number(s):	226 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I am able to determine that the Claimant in this case has not satisfied this court as to requirements (a) and (d) of r.15.3.18 and I thereby strike out the Claim for Judicial Review filed on 18 May 2023 under r. 15.3.20 of the CPR. I also order cost against the Claimant. I hereby order accordingly.
Representation:	Mr Christopher Hapa for the Claimant Ms Freliz Fakarii for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule, r15.3.18,r 15.3.20 Land and Titles (Amendment) Act 2014 S 2, S 5, 8A, 8C (1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 226 of 2023

BETWEEN

PEROSHMA LAND PURCHASE CO-OP SOCIETY
Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Defendant

Date of Hearing: 23 August 2023
Date of Decision: 12 September 2023

Mr Christopher Hapa for the Claimant
Ms Freliz Fakarii for the Defendant

RULING ON CHAPTER 15 CONFERENCE

Bird PJ:

1. The Claimant in this proceeding filed a Claim for Judicial Review on 31 July 2020 for mandatory orders directing the Defendant to deal with and prepare the grant instrument (s) between the Commissioner of Lands and the Claimant for the transfer of legal interests in parcel numbers 098-007-1 and 098-007-12. In support of the claim was the sworn statement of Harold Amiki also filed on the same date. The Defendant filed its defence on 17 October 2022 together with the sworn statement of Alan McNeil. The matter was listed for Chapter 15 Conference on 23 August 2023.
2. During a Chapter 15 Conference, the matters that must be satisfied before the case can proceed to trial are those contained in rule 15.3.18 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). That rule states:
   • r. 15.3.18 The court will not hear the claim unless it is satisfied that:
   1. the claimant has an arguable case; and
   2. the claimant is directly affected by the subject matter of the claim; and
   100. there has been no undue delay in making the claim; and
   4. there is no other remedy that resolves the matter fully and directly.
3. Before the hearing proceeded on 23 August 2023, the court had ascertained from Counsel Ms Fakarii that the contested requirements under r. 15.3.18 are those contained in (a) and (d) of the rule. Upon that concession by the Defendant, issues (b) and (c) are proved and needed no further submissions.
4. In relation to requirement (a) of the rule, it is submitted by Mr Hapa of counsel that this case has connection with CC 498 of 2018. In that case, the court had ordered inter alia that the Claimant in this case has equitable interest in parcel numbers 098-007-11 and 098-007-12. In is on the basis of the judgment in CC 498/18 that the Claimant relies on exhibits marked “HA4”, “HA5”, “HA6” and “HA7” of the sworn statement of Harold Amiki filed on 18 May 2023. Those exhibits are letters and email correspondences between Counsel Mr Hapa and Mr McNeil, the Commissioner of Lands. The letter and email correspondences had requested the Defendant to facilitate the transfer of the interest in parcel numbers 098-007-11 and 098-007-12 to the Claimant pursuant to the judgment of this court dated 18 November 2022 in CC 498 of 2018. It is further submitted by counsel that a claim for judicial review would commence on that date and would have lapsed on 18 May 2023 thus the filing of this claim by the Claimant. In light of the decision of the court in that case, it is argued that the Claimant has an arguable case.
5. It is further submitted by Mr Hapa of counsel that as per the requirement of r.15.3.18 (d) of the rule, there is no other remedy available to the Claimant than by way of judicial review. Their interest is by way of equitable interest and only this court has jurisdiction to deal with it under its equitable jurisdiction. It is therefore submitted that they have satisfied that requirement and the court should not strike out the claim at this stage.
6. On behalf of the Defendant, it is submitted by Ms Fakarii of counsel that the Claimant do not have an arguable case as per its statement of case. It is submitted that under section 2 of the Land and Titles Act (Amendment Act 2014, the powers and functions of the Commissioner of Lands were given and vested in the Land Board.
7. It would therefore follow that any land dealings under the provisions of the Land and Titles Act (cap 133) must be made to the Land Board, not personally to the Defendant per se. It is further submitted by counsel that the Claim for Judicial Review by the Claimant must fail as it is misconceived and does not disclose a reasonable cause of action as against the Defendant.
8. It is also submitted by Counsel Ms Fakarii that the Claimant has an alternative remedy in this case. That remedy is for him to submit his application for the transfer of the interests in parcel numbers 098-007-11 and 098-007-12 to the Land Board as required under s. 2 of the 2014 Amendment Act. The Claimant has not yet utilised that option. His representations were made to the Defendant who has no power to deal with the request per se. It is therefore submitted by counsel that the Claimant’s claim for Judicial Review filed on 18 May 2023 is misconceived and premature. There has been no decision made by the Land Board in this case that could be reviewed by this court because the Claimant has not made any application or representation to the said Board. It is therefore submitted by counsel Fakarii that requirements (a) and (d) of r.15.3.18 are not satisfied and the Claim for Judicial Review filed on 18 May 2023 must be struck out under r. 15.3.20 of the CPR.

Discussion

9. Having discussed the case for the respective parties in this matter, the only requirements that must be satisfied by the Claimant are those contained in r. 15.3.18 (a) and (d) of the rules. The order sought in this case is for the Defendant to deal with the transfer of the interests in parcel numbers 098-007-11 and 098-007-12 to the Claimant.
10. The argument of the Defendant and supported by s.2 of the 2014 Amendment to the Land and Titles Act is that the Defendant does not have the power to deal with and transfer the interests in the stated parcels of land per se. A proper application must be made to the Land Board and that process has not even started by the Claimant.
11. I have perused the 2014 Amendment Act and could confirm that under Section 5, 8A, 8B and 8C (1) of the Act, only the Land Board has the power to deal with the Claimant’s application. Under subsection (2) of s.5, 8C of the Amendment Act, the Board may in writing delegate any of the powers and functions in subsection (1) to the commissioner of lands. So without the delegation, only the Land Board can deal with the claimant’s application.
12. Upon the matters raised by the Defendant in their defence and the sworn statement of Alan McNeil both filed on 7 August 2023, it is obvious that the Defendant has no power to make any land dealings except the Land Board.
13. I am therefore of the view that the Claim for Judicial review filed by the Claimant on 18 May 2023 does not contain an arguable case. The claim is filed premature because the powers of the Land Board under s.5, 8A, 8B & 8C (1) of the 2014 Amendment Act had not been invoked by the Claimant. That alternative remedy had not been exhausted by the Claimant. It will be in the event that the Land Board makes a decision adverse to the Claimant’s interest as enunciated in CC398 of 2014 that this court’s jurisdiction for equitable remedies can be invoked.
14. I am able to determine that the Claimant in this case has not satisfied this court as to requirements (a) and (d) of r.15.3.18 and I thereby strike out the Claim for Judicial Review filed on 18 May 2023 under r. 15.3.20 of the CPR. I also order cost against the Claimant. I hereby order accordingly.

THE COURT
Justice Maelyn Bird
Puisne Judge