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Suhara v Attorney General [2016] SBHC 91; HCSI-CC 562 of 2015 (9 June 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION
Civil Case No. 562 of 2015

IN THE MATTER OF: AN APPEAL PURSUANT TO SECTION 79 (3) OF THE LANDS AND TITLES
ACT (CAP. 133), AS AMENDED, (“THE ACT”).

IN THE MATTER OF: AN APPEAL BY THE APPELLANTS PURSUANT TO SECTION 79 (3) OF
THE ACT AGAINST THE DECISION OF THE COMMISSIONER OF LANDS
DATED 4^TH AUGUST 2015.

BETWEEN: WILSON SUHARA AND NELSON KEPULU - Claimant
(Representing the Koenihao Tribe of Central Guadalcanal)

AND: ATTORNEY-GENERAL - Defendant
(Representing the Commissioner of Lands)

AND THIS PARTY IS JOINED FOR PURPOSES OF THE APPLICATION
FOR FREEZING ORDERS ONLY.

AND: DANIEL UNA - Third Party Respondent
(Representing himself and the Roha Tribe of Central Guadalcanal)

Date of Hearing: 3^rd June 2016.
Date of Ruling: 9^th June 2016.

Mr. R. Tovosia for the Applicants/Claimants.
Mr. J. Muria Junior for Respondent.
Mr. M. Tagini for Third Party Respondent (for purpose of freezing orders).

KENIAPISIA; PJ:

RULING ON APPLICATION FOR FREEZING ORDERS

1. Claimants/Applicants for freezing orders filed a Category C claim on 3/11/2015. Claim is derived from a compulsory acquisition that the Minister of Lands & Housing made in 2014. The Minister of Lands had acquired by compulsory acquisition certain lands in the Malango/Bahomea area, Central Guadalcanal, Guadalcanal Province. The lands were acquired for a public purpose connected to Tina Hydro Project development. The Minister’s declaration to acquire the concerned lands was made by a declaration dated 13/08/2014. To date, there is no appeal against the Minister’s declaration because, no person had sought to “quash” the Minister’s declaration, through appeals made to this Court, under Section 76 of the Lands and Titles Act (Cap. 133) – hereafter referred to as “LTA”. The lands acquired compulsorily under the Minister’s declaration, are hereafter referred to as “Tina Hydro Lands” for ease of reference. The “Tina Hydro Lands” acquisition as per the Minister’s declaration of 2014, stands, because there was no appeal inside the 6 months limitation period allowed for appeals under Section 76 of LTA.
   
2. Next on the Minister’s declaration on Tina Hydro lands is compensation. Compensation is provided for under Section 79 of the LTA. Under Section 79, any person who claims for “interests” on Tina Hydro Lands, such “interests”, which have diminished under the Minister’s declaration, is entitled to make claims for compensation to the Commissioner of Lands (“COL”).
   
3. If the COL has rejected to compensate any claims, made under Section 79, then the aggrieved claimant may appeal to the High Court under Section 79 (3). This is where this claim is coming from.
   
4. In the Category C claim, claimants seek reliefs that, the COL’s decision rejecting to pay compensation to the claimants be set aside. And also that this Court orders the COL to hear and determine afresh, claimants claim for compensation.
   
5. The brief facts can be quickly summarised. Following the compulsory acquisition of Tina Hydro lands in 2014, the claimants’ tribe, together with other tribes in the Tina hydro land area, whose interests are purportedly diminished by the Minister’s acquisition, submitted claims for compensation, to the COL. Claimants’ tribe was one of the nine (9) tribes that submitted compensation claims to the COL. COL considered claimants’ tribe’s compensation claim and rejected it in August 2015. Claimants appeal in this case, against the said COL’s rejection to this Court. Whilst that appeal is pending hearing, claimants apply for freezing orders on 21/3/2016. This is the application heard today.
   
6. In this appeal, claimants’ tribe; do not dispute any compensation payment made to any of the nine (9) claimant tribes, who successfully claimed for compensation to the COL. Claimants only seek for reliefs as per my paragraph 4 above. Therefore, when claimants seek to freeze the payment of $6.9 million made to Roha tribe, (the successful claimant tribe for compensation), the application is misconceived.
   
7. The application is sitting on sinking ground because it is made contrary to Section 18 of the Crown Proceeding Act (Cap. 8). The said section prohibits making injunction or specific performance orders against the Crown. That in effect is what the application for freezing orders seeks to do. That this Court inter-alia freezes the $6.9 million dollars compensation payment to Roha tribe, pending the resolution of this case. Freezing orders or injunctions orders against the state are not permissible under Section 18.^[1]
   
8. Furthermore, R 7.17 (b) (i) and (ii), sets out the instances where a freezing order may be made by this Court. The first one (7.17 (b) (i)) is where the applicant has a good and arguable case. In view of what I say in paragraph 6 above, I conclude that the applicants do not have a good and arguable case, in the application for freezing orders, relating to the $6.9 million dollars compensation payment made to Roha tribe. Applicants’ claim is not challenging that compensation payment to Roha tribe. Therefore under (R. 7.17 (b) (ii)), any judgment or order in this case will not involve the $6.9 million dollars compensation payment to Roha tribe. There is therefore no ground for freezing orders under this Rule.
   
9. In fact, the claim is made against the COL’s decision to reject the applicants “claim for compensation payment”, under Section 79 of the LTA. The appeal is specifically provided for under Section 79 (3). Remedies available to the claimants under Section 79 (3) are: for this Court to confirm the COL decisions, this Court to assess any compensation amount disputed or this Court to remit the matter back to the COL, that an offer be made to the aggrieved claimants.
   
10. This Court cannot order the payment of any “compensation quantum” under the provisions of Section 79 (3) of the LTA, to the claimants, without the COL making a decision on the persons entitled to receive compensation payment and without assessing the compensation quantum. Only where an “aggrieved party” appeals for assessment of compensation payment quantum determined by COL, will this Court, assess the amount of compensation disputed.
    
11. Claimants claim for $6.9 million dollars is not tenable under Section 79 (3), because the COL has yet to determine any compensation payment to the claimants. The only two remedies available to the claimants under Section 79 (3) are: (i). for this Court to confirm the COL decision to reject applicants claim for compensation payment or (ii). for this Court to remit the matter back to the COL. This Court will decide on the appropriate remedy at the conclusion of trial in this case.
    
12. Furthermore, any compensation payment to be made to the applicants, if entitled to, is totally isolated and different from Roha tribe’s $6.9 million dollars. Any compensation will have to be quantified in relation to “what interests” Koenihao tribe had lost due to the Tina Hydro Land acquisition. It may be more or it may be less. But before we even get to the calculation of quantum stage, we must first ascertain whether the Koenihao tribe has any “interest” in the Tina Hydro land areas, which has diminished under the Minister’s compulsory acquisition. This is the work of the COL in the first instance.
    
13. At the moment, on the materials before me, Koenihao tribe, does not have “interests” diminished inside Tina Hydro lands, under the Minister’s compulsory acquisition, because Koenihao’s Nala land, is situated outside of the Tina Hydro Lands referred to as the “core lands”.
    
14. Accordingly, the application for freezing orders is misconceived and refused. I make no orders on costs. Parties to prepare the substantive claim for trial.
    

THE COURT

----------------------------
JOHN A KENIAPISIA
PUISNE JUDGE

^[1] Attorney General –v- Solomon Maui (Trading as Mugaba Timbers) & Another (2015), Court of Appeal, Civil Appeal Case 24 of 2015,delivered 22^nd April 2016.