Dettke v Attorney General [2024] SBHC 108; HCSI-CC 199 of 2018 (26 July 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Dettke v Attorney General
Citation:
Date of decision:	26 July 2024
Parties:	Heinz Horst Bodo Dettke v Attorney General
Date of hearing:	23 July 2024
Court file number(s):	199 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	The former COL’s (Ag) grant of FTE in respect of PN 97 is hereby declared null and void and non-effective in law. The current COL’s decision refusing to execute the necessary grant instrument(s) to enable registration of the FTE in PN 97 to Dettke’s name is lawful and shall stand unaffected.
Representation:	Ms Ramo for the Claimant/Respondent Mrs Soma for the Defendant/Applicant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles (Amendment) Act S 8 (c), (1) (a) (b) and (c),S 4, S 8 (c) (1) (a), Land and Titles Act, S 229 (1) Solomon Islands Courts (civil Procedure) Rule 2007, r 12.11 and 12.12
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 199 of 2018

BETWEEN:

HEINZ HORST BODO DETTKE
Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Defendant

Date of Hearing: 23 July 2024
Date of Ruling: 26 July 2024

Counsel: Ms Ramo for the Claimant/Respondent
Counsel: Mrs Soma for the Defendant

Ruling on preliminary of law pursuant to rule 12.11 and 12.12

1. Commissioner of Lands (“COL”) is the custodian of the Fixed Term Estate interests (“FTEs”) in 3 registered parcels situated on West Guadalcanal which the crown owns. The 3 registered FTEs parcels are identified as PN 190-001-95, PN 190-001-96 and PN 190-001-97.
2. The former COL (Ag) granted the FTEs in the 3 parcels to Heinz Horst Bodo Dettke (“Dettke”) by offer letter dated 17/3/2015^[1]. The offered price for the 3 registered parcels was $96, 270.00.
3. Mr Dettke accepted the offer. Dettke paid the consideration price of $96, 270.00 to the Solomon Islands Government, Ministry of Finance and Treasury on or around 19/03/2015. The former COL subsequently executed the necessary transfer instruments and the FTEs in PN 191-001-95 (“PN 95”) and PN 191-001-96 (“PN 96”) were registered in Mr. Dettke’s name on or around 1/05/2015.
4. Current COL is refusing to execute the necessary transfer instruments in respect of the FTE in PN 191-001-97 (“PN 97”). The current COL refused to recognise the validity of the grant (contract) the former COL (Ag) made. Hence the FTE in PN 97 is yet to be transferred and registered in Dettke’s name. Mr Dettke filed this judicial review claim to compel the current COL to execute the necessary transfer instruments to have the FTE in PN 97 registered in his name.
5. The current COL’s counter claim is seeking relief to declare null and void the grant of FTEs in PN 95, PN 96 and PN 97 to Mr Dettke. The current COL assert that the allocations (contracts) the former COL (Ag) made to transfer the FTEs in the 3 parcels to Dettke breached Section 8 (C) (1) (a) (b) and (c) of the Lands and Titles (Amendment) Act (No.11 of 2014) - hereafter referred to as the 2014 Amendment Act.
6. Should the current COL’s counter claim succeed the grant and registration of the FTEs in PN 95 and PN 96 will be annulled. The grant of the FTE in PN 97 will also be cancelled and not registered at all.
7. The agreed issues I must determine pursuant to Rule 12.11 and 12.12 as preliminary issues of law in an application^[2] to terminate this proceeding without a trial are: -
   • 7.1 Whether or not the allocation, grant and execution of the grant instrument the former COL (Ag) made in respect of the FTEs in PN 95 and PN 96 is null and void and of no legal effect for breach of Section 8 (C), (1) (a) (b) and (c) of the 2014 Amendment Act?
   • 7.2 Whether or not the allocation, grant and registration of the FTEs in PN 95 and PN 96 to Dettke is invalid, null and void and of no legal effect because the Land Board did not sanctioned it as per the 2014 Amendment Act?
   • 7.3 Whether or not the land register should be rectified under Section 229 (1) of the principal Act by removing/cancelling Dettke’s name as the FTEs owner in PN 95 and PN 96 because the allocation and grant of crown land therein, were obtained, made or omitted by fraud or mistake or the High Court can direct any rectification where it is generally empowered by the said principal Act to so rectify under Section 229 (1)?
   • 7.4 Whether or not the current COL’s refusal to execute the necessary transfer instrument(s) to enable Dettke to register the grant of FTE in PN 97 in his name was lawful and has legal basis pursuant to Section 8 (C), (1), (a) (b) and (c) of the 2014 Amendment Act?
8. The above preliminary issues of law point to the 2014 Amendment Act because the current COL is asserting that the FTEs in PN 95, PN 96 and PN 97 were transacted outside of the spirit and the letter of the law contained in the 2014 Amendment Act.
9. To answer the preliminary issues of law, I need to examine the spirit and the letter of the law contained in the 2014 Amendment Act. The 2014 Amendment Act removed the monopoly of administrative powers and functions that were formerly vested in the hands of the COL and or the Minister of Land under the principal Act^[3] and vested the same in the Land Board (“LB”). This was seen as a necessary legislative intervention because the COL and or the Minister of Land yielded too much powers and functions over crown interest in land. Our past experiences show that the COL and/or Minister of Land were susceptible to manipulation, necessitating the 2014 amendment.
10. The 2014 Amendment Act established the LB^[4] to become the focal bouncing stage for all administration powers, functions and decisions relating to crown interests in land. The COL sits as the secretary to the new LB. The COL is also an ex-officio member of the LB (Second Schedule).
11. Where the LB gives clear written direction or delegation of duty, then the COL can only act pursuant to the LB’s delegation of powers/duties/functions (Section 8C (2)). This is different from the principal Act where the COL has the full administrative functions and powers to unilaterally administer and decide on crown interests in land. This is why Section 4 of the principal Act was removed. And the LB replaced the COL in Section 4 of the 2014 Amendment Act).
12. In Part II A of the 2014 Amendment Act, the LB was established and clothed with its powers and functions. The object of the 2014 Amendment Act can be seen in Part II A, Section 8A which states: -
    • “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 interests 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”.
13. The powers of the LB are stipulated in Section 8 (C) (1) (a) – (i) of the 2014 Amendment Act. Section 8 (C) (1) (a) is applicable to the preliminary issues of law at hand where it stipulates that the LB has power to allocate^[5] interests in crown land in accordance with the provisions of the 2014 Amendment Act.
14. There is clear evidence that the LB did not sanction the allocations of FTEs the former COL (Ag) made to Dettke in respect of PN 95, PN 96 and PN 97 in 2015. This is a clear violation of the spirit of the law Parliament intended in the 2014 Amendment Act. Parliament intended that only the LB shall have power to allocate crown interests in land and not the COL, as was the case prior to 1/12/2014.
15. The former COL (Ag) made a serious mistake of law, when she allocated crown’s FTEs in PN 95, PN 96 and PN 97 to Dettke in year 2015, without the knowledge, involvement and decision of the LB. The COL has no legitimate power under the 2014 Amendment Act to allocate crown’s FTEs in the 3 parcels.
16. The principal Act empowers High Court to order rectification, of the land register by cancelling any registration that was made or obtained by mistake (Section 229 (1) of the principal Act). I find there was mistake of law in the registration of the FTEs in PN95 and PN96 in Dettke’s name. I will cancel that registration exercising powers given to me by Section 229 (1) of the principal Act. Dettke cannot claim the immunity from rectification under Section 229 (2). Dettke substantially contributed to the mistake by his act, neglect or default. He knew or ought to know that COL has no power to allocate interests in crown land. Yet he continued to transact the FTEs with the COL instead of the LB. He cannot claim ignorance of the law. Dettke is an intelligent person, business man and former Member of Parliament.
17. I find that the former COL’s (Ag) decision to allocate crown land FTEs in PN 95, PN 96 and PN 97 to Dettke lacked legal authority/power or lacked legal basis or lacked legal backing or is ultra vires. The former COL (Ag) acted beyond her legal powers and functions under the 2014 Amendment Act.
18. Counsel Ramo conceded that having read the case of Solomon Bauxite^[6], it is clear the former COL (Ag) acted outside the 2014 Amendment Act in allocating the FTEs herein to Dettke. Counsel agreed the allocations were made ultra vires the 2014 Amendment Act.
19. Accordingly, I will answer the preliminary issues of law for determination as follows: -
20. The former COL’s (Ag) allocation, grant and execution of the grant instrument in respect of the FTEs in PN 95 and PN 96 to Dettke breached Section 8 (C) (1) (a) of the 2014 Amendment Act and is hereby declared invalid, null and void and of no legal effect.
21. The allocation, grant and registration of the FTEs in PN 95 and PN 96 to Dettke is invalid, null and void and of no legal effect because the former COL (Ag) transacted those FTEs without sanction from the LB contrary to the spirit of the law contained in the 2014 Amendment Act.
22. The land register shall be rectified under Section 229 (1) of the principal Act by cancelling Dettke’s name from the FTE register of PN 95 and PN 96, because those allocations and registration were obtained or made by serious mistake of law. High Court has the power to direct such rectification under Section 229 (1) of the principal Act.
23. The current COL’s refusal to execute the necessary grant instrument(s) to enable the registration of FTE in PN 97 to Dettke’s name is legitimate under - Section 8 (C) (1) (a) of the 2014 Amendment Act. The refusal decision is therefore lawful and shall stand unaffected.
24. I will dismiss Dettke’s judicial review claim filed on 29/06/2018 without a trial pursuant to the current COL’s application brought under Rule 12.11 and Rule 12.12. I will grant the reliefs sought in the current COL’s defence and counter claim filed on 31/10/2018. Cost is awarded to the current COL on standard basis on its counter claim. I will assess cost when counsel is ready. I will join the Registrar of Titles in this proceeding for the limited purpose of rectification of the FTEs on the register in respect of PN 95 and PN 96. The former COL’s (Ag) grant of FTE in respect of PN 97 is hereby declared null and void and non-effective in law. The current COL’s decision refusing to execute the necessary grant instrument(s) to enable registration of the FTE in PN 97 to Dettke’s name is lawful and shall stand unaffected.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See Exhibit A of sworn statement by Dettke filed on 29/06/2018.
^[2] Defense application to determine preliminary issues of law under Rule 12.11 and 12.12 was filed on 23/02/2024 followed by consent order on agreed facts and issues of law to determine pursuant to the application filed on 14/05/2024.
^[3] Principal Act refers to Land and Titles Act (Cap 133) as amended in 2014.
^[4] Section 8B (1) of the 2014 Amendment Act.
^[5] “Allocate” in respect of land means – to transfer, grant, or lease an estate...– Section 2 (a) – (c) of the 2014 Amendment Act.
^[6] Solomon Bauxite ltd v Commissioner of Lands [2021] SBHC 140; HCSI-CC 204 of 2018(18 November 2021)