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Attorney General v Zhu [2024] SBCA 21; SICOA-CAC 26 of 2022 (14 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The appellant appeals the decision of the High Court in proceeding titled Mindi Zhu v. The Attorney General, Civil Case No. 127 of 2019. It was a judicial review proceeding filed by the respondent, who was the claimant, pursuant to Rule 15.3.18 of the Civil Procedure Rules, 2007, (“the CPR” hereon) against the appellant who was the defendant, for the resumption of the Fixed Term Estates in Parcels 192-004-1722 and 192-004-1729 (“the FTE” hereon) by the Commissioner of Lands (“the Commissioner” hereon). The respondent had title over the FTE.
2. In judicial review claims, the claimant must as a matter of law satisfy four requirements for the claim to be heard. See, Manasau v. Attorney General [2014] SBHC 83. The four requirements are prescribed in Rule 15.3.18 (a), (b), (c) and (d), which are as follows:-
   • (a) The claimant has an arguable case; and
   • (b) The claimant is directly affected by the subject matter of the claim; and
   • (c) There has not been any undue delay in making the claim; and
   • (d) There is no other remedy that could resolve the matter fully.
3. In this case, a preliminary hearing was conducted pursuant to an application filed by the appellant under Rule 12.11 of the CPR for the court to determine whether there was an arguable case. The issue raised in the application was whether the issues raised in the respondent’s claim had been settled by this court in Anthony Chee Ming Wong v. Attorney General and Commissioner of Lands – CAC No. 176 0f 2009. In that case, this court held among others, that a FTE is like a leasehold which grants possession for a term of years with certain conditions and restrictions within which the land may be used. The court held that a grant of a FTE confers reserved power on the landlord, who is the Commissioner, with the right to re-enter and resume possession of either a part or the whole of the FTE for specified public purposes, subject to notice and limited compensation for any improvements on the land.
4. A FTE may be terminated by the Commissioner pursuant to the reserved power conferred by the grant. In such a case, the lessee would naturally lose the right to occupy and the use of the land, which is an essential feature a FTE; and as alluded to earlier, where there are improvements on the land, compensation may be paid for the actual loss of such improvements.
5. The appellant in this case relied on clause 3 of the grant instrument in the FTE which conferred power directly on the Commissioner to resume the FTE for a public purpose.
6. The appellant also argued before the primary judge that the court was bound by the decisions of this court in Anthony Ming Wong under the doctrine of stare decisis. For this argument, the appellant relied on In re The Estate of Felix Panjuboe [2002] SBHC 98, in which Kabui J said: -
   • “the decision (sic.) of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction”.
7. The respondent on the other hand relied on Levers Solomon Ltd v. Attorney General – Civil Appeal Case No. 24 of 2012, a High Court decision, to argue that the decision in Anthony Ming Wong was contrary to law because compulsory acquisition of land can only be done under ss. 71 and 72 of the Land and Titles Act, Cap 133 (“the LTA” hereon). In Levers Solomon Ltd, the court held that under the Torrens system of land ownership which this country adopted, a holder of a FTE holds an indefeasible title. Thus, the title holder is protected by law and cannot be dispossessed of the interests in the land including title, even by the Commissioner under the power of resumption conferred by a grant instrument in a FTE. The respondent argued that the grant in clause 3 of the FTE in this case is contrary to s. 171 of the LTA and is therefore void of any legal effect. It was also argued that the resumption of the FTE by the Commissioner in this case was contrary to s. 8 of the Constitution which guarantees protection of the respondent’s rights in the property.
8. In his decision, the primary judge rejected the arguments by the appellant and found for the respondent. The primary judge held that the two cases relied on by both parties did not decide the effect of clause 3 in FTE grants, including Anthony Chee Ming. The primary judge held that the two cases were distinguishable from the case before him.
9. The primary judge found that acquisition of either a customary land or a registered land for a public purpose can only be properly and legally made under ss. 71 or 72 of the LTA. The judge said, the Commissioner may bring to an end any fixed term estate only if the power to do so was conferred by the LTA or any other written law.
10. After discussing ss. 71 and 72 of the LTA, the primary judge said whilst he could see the Commissioner had resumed the FTE under clause 3 of the grant instrument, he could not find any provision of the LTA or any other written law that conferred power on the Commissioner to resume a FTE for a public purpose.
11. The primary judge in the end held that the resumption of the FTE in this case by the Commissioner had no legal basis, hence unlawful.
12. In the course of deciding the preliminary application by the appellant, the primary judge went on to decide the substantive issues raised by the respondent in the civil claim.
13. It is pertinent to cite parts of primary judge’s ruling which formed the basis of the conclusions he reached. His Lordship among others said: -
    • “When land is required for a public purpose, the Land and Titles Act, Cap 133, specifically made provisions for that under Part V Division 2 of Lands (sic.) and Title (sic.) Act, sections 71 to 85. Part V Division 2 applies whether the land needed for a public purpose is a customary land or registered land. In the present case since the land is a registered land the relevant provision is section 72 of the LTA”. (Our underlining).

After citing ss. 71 and 72 of the LTA, his Lordship said: -

• “In view of section (sic.) 71 and 72 of the LTA, while I agree with the submission of the Solicitor General that the ownership of the land and the perpetual estate always remain with the COL and that he may bring to an end a grant of any fixed term estate, I am of the view that the commissioner (sic.) may only legally do so if the right to do so was conferred on him by the Land and Titles Act or any other written law. I had gone through the Part X of the Lands and Title (sic.) Act but found no provision that conferred any such right on the Commissioner to resume land for a public purpose. In the present case, it is obvious the Commissioner relied on clause 3 of the grant instrument.
• I however, considered the reservation in the grant instrument is not a right conferred on the Commissioner or authorized by the LTA or other written law”. (Our underlining).

14. The learned primary judge accepted submissions by counsel for the respondent that the “reservation” in clause 3 of the grant instrument was not a right granted under the Act or under any written law, hence it contravened Part V Division 2 of the LTA, especially ss. 71 and 72 of the Act.

His Lordship in his concluding remarks said: -

• “On the materials before the Court it is clear the purpose for which the Commissioner resumed the Claimants (sic.) Fixed Term Estates was for a public purpose and he did so under the reservation in clause 3 of the (sic.) form 2, the grant instrument. The form 2 was made pursuant to section 122 of the Lands (sic.) and Titles Regulation, Cap 93. In the Revised Edition 1996 the equivalent is section 134 of the LTA, Cap 133. Form 2 however has not been revised and still refer to section 122 of the Lands and Titles Regulation, Cap 93. In any event section 134 of the LTA does not conferred (sic.) any right on the Commissioner of Lands to resume land for public purposes or authorized the use of clause 3 reservation in the grant instrument to resume land for a public purpose”. (Our underlining)

Grounds of appeal

15. The appellant’s grounds of appeal may be summarized as follows: -
    1. The trial judge erred in law and fact in failing to appreciate the difference between power of resumption of land and power of compulsory acquisition of land which are exercised by the Commissioner and Minister, respectfully.
    2. The trial judge erred in law and fact in failing to appreciate that the power of the Commissioner to resume FTE is conferred by a clause in the FTE, whereas the power of the Minister to compulsory acquire land is conferred by s. 71 Division 2 of the Land and Titles Act.
    3. The trial judge erred in fact and law in failing to appreciate that the Commissioner in this case was not acquiring the respondent’s land, rather he had activated the right reserved in him under clause 3 of the grant instrument to terminate the leasehold interest of the respondent and resume full possession and use of the FTE for public purposes subject to the respondent’s right to be compensated for any improvements on the land.
    4. The trial judge erred in fact and law when he held that power of the Commissioner to resume FTE was not conferred by the Land and Titles Act or any written law. Such error arose as a result of the trial judge failing to appreciate the difference between the power of the Commissioner to resume a FTE and the power of the Minister to compulsorily acquire land.
    5. The trial judge misapprehended the decision in Anthony Chee Ming Wong which was the case in point and ignored its biding effect as the decision of the superior court under the doctrine of stare decisis.

Both parties reiterated and adopted the arguments they presented before the High Court.

Consideration

It is convenient that ss. 71 and 72 of the LTA be reproduced for easy reference.
Section 71 (1) provides as follows: -

• Whenever it appears to the Minister that any land is required for any public purpose, he may make a declaration to that effect and require the same to be published in such a manner as he shall think fit.

Section 72 provides as follows: –

• Where any land specified in the declaration is registered land, the Commissioner shall serve on every owner shown by the land register to be affected thereby a notice in the prescribed form stating and drawing attention to the matters which are to be stated or which attention is to be drawn in or by notice posted pursuant to section 71 (3).

16. The copy of the grant instrument that is before the Court shows that the grant was made pursuant to s. 122 of the Land and Titles Regulation, Cap 93, (“the LTR” hereon), which is subordinate to LTA. The Regulations were made by the Minister, under s. 260 of the LTA.
17. Significantly, clause 3 of the grant instrument is critical and determinative because it confers reserved power on the Commissioner who is the grantor of a FTE to resume either portions or whole of the FTE as may at any time be required for public purposes. Such public purpose can be road constructions and so on. But any resumption by the Commissioner is upon payment to the holder of the FTE, who is the grantee, compensation for actual loss sustained in respect of the improvements on the land. These are special powers and functions given specially to the Commissioner and no one else, by the grant instrument under clause 3 of the FTE.
18. In Anthony Chee Ming Wong v. AG and Commissioner of Lands – CAC No. 176 of 2009, this Court said: -
    • “The contentions of the appellant proceed upon a fundamental misconception of the nature of the reservation. This may be most simply explained by observing that a fixed-term estate is, essentially, a kind of leasehold. The lease grants possession of the land for a term of years, specifying the payment of rent and imposing certain limits on the uses to which the land may be put. The reservation expressly gives to the landlord – here, the Commissioner – the right to reenter and resume possession in certain specified events, namely the intention to use the land for public purposes and subject to notice and certain limited compensation, in short, the right to bring the term to an end. When the landlord terminates the lease in accordance with the reserved power to do so, he takes nothing in the nature of an interest in land from the lessee even though it is true that the lessee loses the right to occupy the use of the land....
    • From the very beginning, therefore, the leasehold was subject to a condition that in certain circumstances, his right to occupy certain parts or the whole of the land could be terminated” (Our underlining).
19. In Lever Solomon Ltd v. Attorney General [2013] SBCA 11; SICOA-CAC 24 of 2013 (8^th November, 2013), the appellant had owned freehold land for many years. Upon independence, by operation of the law viz; s.100 of LTA, the freehold estates owned by non-Solomon Islanders were converted to a FTE for 75 years. The land in question was Parcel No. 192-018-63. On 17^th January, 2011, the Commissioner gave one month’s notice of resumption of part of the parcel for public purposes. The appellant objected to the notice. The appellant was subsequently informed by the respondent that the FTE had been cancelled and an entry had been made in the register to show that the land had been resumed and re-entered by the Attorney General representing the Commissioner. The appellant filed a claim against the Attorney General in the High Court, seeking a declaration that the resumption and reentry was null and void. In its decision the High Court held that although there was no physical evidence of a grant instrument upon which the resumption could be made by the Commissioner, the grant could be implied thus giving the Commissioner right of resumption. The primary judge therefore rejected the appellant’s claim.
20. On appeal by the appellant, there was a supporting sworn statement filed by the appellant deposing to an agreed fact by all parties that the FTE was registered without a grant instrument.
21. The learned primary judge also found that; first, there was no evidence about the existence of any grant; second, the Commissioner seemed to have accepted that the FTE was registered without a grant instrument; third, the court was left not knowing how the registration came about; fourth, there was simply no contemporaneous evidence available and fifth, there was no evidence to conclusively show there was or was not a written grant instrument.

This Court in its ruling in allowing the appeal said: -

• “...What the present Commissioner accepted was that it was registered without a grant. In other words, there was no grant. It is not the matter of the Commissioner seeming to accept, as it is his positive statement agreeing with the appellant that there was no grant. The final part of the judgment cited above seems to be dependent upon a finding that a Form 2 had been executed by the parties. There is simply no evidential basis for this.
• The agreed basis upon which the trial was conducted in front of the learned Judge was there was no grant. That admission of fact, dispensing as it does with evidence, ought to be accepted without any question.
• The first respondent has not suggested at any stage the existence of a grant document with a right of resumption. If such existed, it was in the power of the respondents to produce it, but further it was their statutory duty to retain any such documents, and none has been revealed on the evidence”.

22. It is very clear from the excerpts we have cited from the decisions in the two cases which the parties relied on in their respective arguments, the central issue in both cases was whether there was a grant instrument upon which the Commissioner acted to resume the respective parcels of land. In both cases, the decisions highlighted the reserved power of the Commissioner granted by a grant instrument over a FTE. As noted, in Anthony Chee Ming Wong, this Court found there was a grant instrument which empowered the Commissioner to resume the FTE for public purposes. In Lever Solomon Ltd, on the other hand, this Court found there was no grant instrument granting power to the Commissioner resume the FTE.
23. In our opinion, what this Court said in Anthony Chee Ming Wong and Lever Solomon Ltd were directly relevant to the determination of the issue before the primary judge. Thus, we find the primary judge erred in law in holding that the cases were irrelevant and inapplicable, particularly Anthony Chee Ming Wong which for the purposes of the issues before him was the case in point.
24. Thus, we find as did the Court in Anthony Chee Ming Wong that, the Commissioner with the reserved power granted under clause 3 of the grant instrument had the right as the landlord to resume the FTE for the intended public purpose which was building of an aerodrome.
25. We also find that the learned primary judge erred in several other respects, namely, the finding that the resumption of the FTE by the Commissioner could only be done under a compulsory acquisition under ss. 71 and 72 of the LTA and that no other provision or provisions of the LTA, empowered the Commissioner to resume the FTE. These findings were with respect clearly erroneous in law in three respects. First, the power to acquire land under ss. 71 and 72 of the LTA, for public purposes is given to the Minister. Second, the power of the Commissioner to resume a FTE for public purposes is granted by a grant instrument in the FTE. It is a special and a reserved power of the Commissioner. Third, the FTE was as shown by the grant instrument and the FTE Register, granted pursuant to ss. 120, and 123 (3) of the LTA and s. 122 of the LTR. Thus, there was no basis for the learned primary judge to hold that the power of the Commissioner to resume the land had no basis either under the LTA or under any written law. These were fundamental errors by the primary judge.
26. In conclusion, whilst we understand that the reason the primary held that he was not bound by the decision in Anthony Chee Ming Wong was because of the way the decision was read and applied to the case before him. We however venture to say with respect that the primary judges should as was his Lordship exercise greater caution and be loath in deciding against following the decisions of this court which are binding on them. We make this observation given that in this case, it is quite plain that the issues before the primary judge were quite clearly settled by the decision in Anthony Chee Ming Wong, thus it was the case in point and was binding on the primary judge.
27. For the foregoing reasons we allow the appeal and we set aside the decision of the primary court.
28. Our decision to allow the appeal now reverses the decision of the primary judge which dismissed the preliminary application by the appellant made under Rule 12.11 of the CPR. Our decision therefore has the effect of granting the preliminary application by the appellant. A further effect of our decision is that the respondent’s civil claim in Civil Case No. 127 of 2019 between Mindi Zhu v Attorney General is also dismissed.
29. The respondent will pay for the appellant’s costs of and incidental to this appeal as well as the costs of and incidental to the preliminary application by the appellant before the primary court, which if not agreed are to be taxed.

Muria P
Palmer CJ
Gavara-Nanu JA