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Lever Solomons Ltd v Attorney General [2023] SBHC 111; HCSI-CC 541 of 2022 (20 October 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 541 of 2022

BETWEEN

LEVER SOLOMONS LIMITED
Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Inland Revenue)
First Defendant

AND:

ATTORNEY GENERAL
(Representing the Accountant General)
Second defendant

AND:

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 9 March 2023, 18 May 2023, 30 May 2023 and 19 June 2023 (Submissions of the Claimant)
13 April 2023 and 16 April 2023 (Submissions by the 1st Defendant)
Date of Ruling: 20 October 2023

KC McDonald and A.S Willy for the Claimant
Mr S. Banuve for all the Defendant

RULING ON APPLICATION FOR INTERLOCUTORY ORDERS.

Faukona DCJ: There are two different applications the court will make rulings on.

2. The first application is an application for interlocutory orders filed on 11^th November 2022. This application is premised on the Claim Category C filed on the same date.
3. The second application is for further enforcement orders filed on 21^st November 2022.
4. I will deal with the first application, then the second one in that order of sequence.

Application for interlocutory orders.

There are number of reliefs sought in the application. In such application the Court is not persuaded to give an order to finally determine the rights and duties and obligations of the parties rule 7.1, and there are no question of fact needed to decide in making the orders, rule 7.5 (b) (ii), the facts relied on should have already known by the court.

5. The reliefs sought are either in all, they are;
   1. An interim declaration that it was beyond the power of the Commissioner of Inland Revenue to issue an assessment to the Claimant, on 1^st September, 2022, for the year to 31^st December 2022 (“the Assessment”).
   2. An interim declaration that the Commissioner of Inland Revenue is prohibited from acting on the 2022 assessment, including issuing any further notice under S. 85 of the Inland Revenue Act in relation to the Assessment.
   3. Alternatively, an interim order prohibiting the Commissioner of Inland Revenue from acting on the 2020 Assessment, including issuing any further notice under S.85 of the Income Tax Act in relation to the Assessment.
   4. Further and in the alternative, an interim mandatory order requiring the Commissioner of Inland Revenue to withdraw and rescind the notice given to the Accountant General on 1^st September 2022 under S. 85 of the Income Tax Act in relation to the Assessment and/or the notice given to the Accountant General on 21^st October 2022 under S. 85 of the Income Tax Act in relation to the Assessment.
   5. Alternatively, an interim declaration that the Commissioner of Inland Revenue is obligated to withdraw and rescind the notice given to the Accountant General on 1^st September 2022 under S.85 of the Income Tax Act in relation to the Assessment and/or the notice given to the Accountant General on 21^st October 2022 under S. 85 of the Income Tax Act in relation to the assessment.
   6. Further and in the alternative, an interim order prohibiting the Attorney General or alternatively, Accountant General from acting on the notice under S. 85 of the Income Tax Act in relation to the Assessment.
   7. Alternatively, an interim declaration that the Attorney General or alternatively, the Accountant General are not entitled to act on the notice under S. 85 of the Income Tax Act, in relation to the Assessment.
   8. An interim mandatory order, further to the orders in the proceedings in this Count being Civil Court case 513 of 2015, signed perfected and sealed on 25^th March 2022, or otherwise, requiring the Attorney General to explain to the Court, by way of sworn statement, the failure by the Attorney General to comply with order 2 made by the High Court on 2^nd November 2017 and order 3 made on 16^th August 2022 and further , or in the alternative, an order under Rule 21.38 that he be examined about the financial circumstances and how the Defendant proposes to pay the amount of the judgment debt and bring sufficient documents to enable them to give a fair and accurate picture of their financial circumstances.
   9. An interim mandatory orders, further to the orders of the proceedings in this court being Civil Court Case 513 signed and perfected and sealed on 25^th March 2022 or otherwise, requiring the Accountant General to explain to the Court, by way of a sworn statement, the failure by him to comply with order 3 made by the High Court on 2^nd November 2017 and order 6 made by the High Court on 16^th August 2022 and further, or in the alternative an order under Rule 21:38 that he be examined about the financial circumstances and how the Defendant proposes to pay the amount of the judgment debt and bring sufficient documents to enable them to give a fair and accurate picture on their financial circumstances.
6. It would appear reliefs 8 and 9 are similar to reliefs 9 and 10 in the claim for judicial review filed on 11^th November 2022.
7. As such, in my respectful view, both reliefs be considered during judicial review trial; to consider at this initial stage would complicate the proceedings. It may require the Attorney-General and the Accountant General to explain their non-compliance to order 3 of 2^nd November 2017, and order 6 of 16^th August 2022, which mean that should not be done earlier than the trial of the issues, is more appropriate than now.
8. This is a contested application for injunctive relief. It is not an application for final orders but are pre-requisite orders sought on interim basis which do not finally determine the rights, duties and obligation of the parties to the proceedings.
9. The Court has jurisdiction to grant injunctive relief orders upon being satisfied that the applicant has a serious question to be tried r7.11 (a) and the balance of convenience favors the making of the orders (s). r7.11 (b). In the midst of those provisions I noted s.18 of the Crown Proceedings Act as well.
10. The universal recognized authority in the case of American Cyanamid Com (No. 1) V Ethicon Ltd^[1], provide further test in additional r7.11 (a) and r.7.11 (b) of the Rules.
11. This is the most complicated case with many factual and legal issues. Even at this interlocutory hearing its complexity is phenomenal one which require good amount of time to consider and make rulings.
12. Even as early as these applications, there is still distance away to resolve the substantive issues.
13. I would always like to perceive, if the issue of unpaid debt is the first matter to be settled and come to conclusion before the issue of assessment of tax in a separate proceeding, it will render less complex and quiet simple to deal with.
14. However, there are other options. One proposal is that the Claimant finalize you’re outstanding claims including interest and rental, and the first defendant work on your final tax assessment including any penalties, then organize a meeting to reconcile your papers and come to final resolution.
15. I would also suggest parties must be prepared to accept the principle of “give and take”. If no resolution is reached this year there will be no end to the dispute between the parties which will linger on for eternity. Note 2 or 3 more files are still on foot and pending.

Litigation History in brief:

16. The parties commenced litigation in respect of Parcel No. 192-018-63 since 2015. Before that, in another case on 8^th November 2013, the Court of Appeal made orders:
    • (a) The Commissioner of lands had no power under the LTA to give notice to the appellant to resume PN: 192-018-63 or any part thereof) and had no power to resume PN: 192-018-63. (or any part thereof).
    • (b) the re-entry notice of the Commissioner dated 6^th July 2011 is null and void.
    • (c) The Registrar of Titles had no power to cancel the appellant’s fix term extract PN: 192-018-63.
17. In HCC No. 513 of 2015 consent orders were made and endorsed by all concern the parties on 2^nd November 2017.
18. Two of the orders stated;
    • (a) The AG to procure that all persons occupying the land at Hells Point be permanently removed; and;
    • (b) Pay to the Plaintiff a sum of $50 million.
19. On 15^th May a certificate of the Consent orders was issued.
20. After the certificate was issued, the Defendants (2) and (3) did not pay the amount in the certificate. As a result enforcement orders was issued on 23^rd may 2018, renewed on 3^rd November 2020 and 5^th November 2021 and served. Despite steps taken there was no payment forthcoming, hence further proceedings was taken, and question why SI Government did not comply with the consent orders.
21. On 15^th June 2022, the court heard application by the Defendant filed on 4^th May 2022 to suspend enforcement proceedings. At the hearing the Defendant raised the issue of set-off claim to tax allegedly payable by Claimant.
22. On 16^th August 2022 the Court refuse to suspend the enforcement but grant new enforcement orders. The Court also rule out the issue of set off.
23. On 25^th August the Claimant issued three demands for payment of total sum of $32,410,041.00.
24. On 2^nd September 2022, the Claimant received a Notice of new Assessment (of income tax) for the year 2022, dated 1^st September 2022 in the amount of $18, 988, and 342. 45.
25. On the same day the Inland Revenue under S.85 of IR Act issued notice to the Accountant General to deduct the amount owing under the September 2022 notice of assessment.
26. The notice of assessment and the dispute are the subject of this proceeding HCC No 541 of 2022.
27. In the initial paragraphs of submissions filed by the Claimant on 24^th March 2023, contain outline activities, in terms of sworn statements and submissions which ultimately pave the way for Court hearing on 15^th June 2022.
28. The outline also reflect the orders made by the Court on 16^th August 2022 in particular one as yielded in an order as to the right of set off which the Court refused.
29. Follow on were narratives of none compliance with the orders in particular the order for payment. And this has elevated demand for the 1^st Defendant to comply with the law.
30. From the initial submissions up to that stage, it prompted the 1^st Defendants to say that complies with the law whilst the Claimant could not comply with the tax laws. Verily there is already argument at introductory stage.
31. This as I view, is a pre-text of the entire argument that will follow suit in the submissions.
32. The Defendant’s argument now, though a year later, is treated by this court as general application to console even when considering the current application in CC 451 of 2022.
33. The major argument by the Defendants that will translate equitably to the issue in this application, is that the Claimant says it has disputed the set off claim but it does not dispute the Income Tax act process as in the case of NBSI V Commissioner of Inland Revenue^[2], which describe the Act as a code of his own. The NBSI case was not raised in June 2022 hearing
34. The same sentiment was shared by the case for Cable and Wireless PLC V Commissioner of Income Tax^[3].
35. The argument based on objection and appeals against tax assessment must be dealt with under the process of s.79 of IR Act and not under High Court Civil Rules 2007.
36. Nonetheless the Claimant disputes there is no capital gain tax on land in Solomon Islands. The taxes were arise from the Claimants realizing gains in the value of its land and not from any business activity.
37. Though the arguments arise from initial or introductory submissions, they uphold points of argument. There is probable the same issue will be raised later in this case when it comes to tax assessment of which the Claimants had received “Notice of Assessment” on 2^nd September 2022.
38. Even as early as submitted, the argument contain some issues. Undoubtedly will transit through level plain to affect CC 541 of 2022.
39. In the event the Defendants argue that it can’t be when the Claimant has not disputed the assessment through objection and appeals.
40. If it is an issue arise after the court ruling, it would have been better to appealed. There was no appeal filed.
41. It would appear the parties wish to maintain parallel arguments that surely will affect this case.

Civil Case 541 of 2022.

42. This case, Civil Case No. 541 of 2022, was commenced by the Claimant because of the notice of tax assessment issued to it on 1^st September 2023.
43. The amount owing in the notice of assessment was $18, 988,342.45.
44. At the same time notice under S.-85 of Income Tax Act was issued by the Commissioner, in respect to the amount owing under September 2022 Assessment.
45. Further notice was issued by the Commissioner to the Account General on 21^st October 2022, under the same provision requiring deduction of any payment of any balance due in respect of Hells Point land.
46. A letter of demand dated 14^th November 2022 was issued by the Claimant to AG seeking balance of payment in the Hells Point proceedings be directed to the Commissioner.
47. On the same day AG through Solicitor General said that S. 85 notice cannot be ignored and was mandatory.
48. As a result s-85 notice, the AG refused to make payment.
49. There has been no payment or any part of the balance under orders of 16^th August 2022, apart from a part payment of $20 million in September 2022.

Legal Principles in Civil Case No. 541/2022.
Jurisdiction of the Court.

50. Before I would actually identify whether there are triable or serious issues to be investigated at trial, the submission have already entangled ferociously on the issue whether this Court has jurisdiction to grant the declaratory orders sought in the reliefs.
51. The Claimant submits and argues based on Court of Appeal Case; Compass Co. Ltd V Commissioner of Inland Revenue,^[4] where the Court held that S.18 of the Crown Proceedings Act, does not operate to prohibit the grant of interim injunction under R. 7. 38. of SI Courts (Civil Procedures) Rule 2007.
52. The Court further observed that it is not to say that the abuse of power may not be restrained. In any appropriate circumstances, an abuse of power by Government Officials can be restrained by the High Court. Rule 15.3.5 explicitly makes provision.
53. The Claimant further submits that the relief is expressed in the alternative, as a Declaration, rather than injunction or restraining order.
54. On the other side, the defendants are saying that the Claimant whilst refer to the above case fail to refer to the case of National Bank of Solomon Islands V Commissioner of Inland revenue^[5], which the Court adopted, in relation to one party seeking declaration. Hutly J said that the originating summons instituted by that party is incompetent, for the Court has no jurisdiction to make a declaratory orders in terms of income Tax Act.
55. Hutly JA addressed the regime of Act in the case of Dorney V Commissioner of Taxation. In that case the Commissioner of Taxation had made an assessment, and Dorney and Simone sought, by way declaration that the assessments were void.
56. In the current case the first Defendant is saying no assessment has been made. And Counsel has not addressed jurisdiction of this Court to make declaration of this kind, nevertheless the court should not pressure jurisdiction.
57. Later the court said, there are no provision for declaratory or directory power in this Court to determine questions of law, short of proceeding which falls to be decided by Part XI, after assessment.
58. The power or duty of the Commissioner to assess are not feted by any authority. To seek, then to affect the Commissioner’s authority is not available, and outside the appeal procedures.
59. The Counsels ought to acknowledge that this Court has jurisdiction to grant interim declaration as specified in r.7.38 generally, and base on the case of Compass Co Ltd above, para 51..
60. The different envision that concerns the Counsel for the first Defendant is that the Court lacks jurisdiction to grant such orders in the circumstances of his case under the umbrella of Income Tax Act, as he expressed.
61. One significant aspect that I noted is that the Counsel for the first Defendant is relying on NBSI case which was decided on 8^th October 2003. Whilst the Claimant’s Counsel is relying on the Campus case which was decided on the 1^st February 2021, being the latest.
62. Therefore which case should I adopt? I would rather go for the latest decision on Campus case, and put aside NBSI case which was decided 18 years before the Campus case was determined in the Court of Appeal in 2021.
63. I further noted, in normal circumstances the NBSI case is applicable to realize that Income Tax Act is a code of its own. It provides for penalties, objections and appeal rights. However, when assessment was made with motive to derail compliance with the lawful order of the court, which were made first in time, then Compass case must prevail as a saving grace to cure the position.
64. There is no strange magic about this. It is clear as crystal. Remember principles of law are not static and to remain at one positon for decades, even for century. Law is a developing discipline which changes after tests, and eventually concluded as law applicable in the circumstance of the case and country as well.
65. Note, environmental and certain social effects contribute to consideration to changes of principles of law and its application attribute.
66. Therefore I do not or even necessary to pressure jurisdiction. In fact this Court has jurisdiction to hear and determine this application upon noting the above arguments.

Are There Triable/Serious Issues Disclosed.
1st Whether the claim discloses reasonable cause of action.

67. The manner in which the submissions are framed is quiet difficult to pick a single issue and given a number in a numeral sequence.
68. The submissions under this heading seems to contain full argument as if this court is determining the judicial review claim. The bulk of it is not of any assistance at all. Counsels even went further to argue claim discloses no reasonable cause of action or tenable cause of action for the relief.
69. In my personal view, I am not dealing with an application to strike out the claim which basically concerns pleadings and reliefs.
70. From arguments entrenched in the submissions, it appears the parties wish to argue whether the claim discloses a reasonable cause of action for the remedies sought, see Rausu V Kogabule^[6], also read with rule 9.75 of the Rules.
71. The first Defendant denies there is no reasonable cause of action and facts and legal arguments do not disclose one. The Claimant argues there is reasonable cause of action.
72. Meantime it would be premature to make any determination after assessment of facts to decide on the issue but relevant time will come at trial, or at chapter 15 Conference which R15.3.18 (a) provided that will decide whether the Claimant has an arguable case. In any event this is a serious issue itself;

2nd Issue is Premature Assessment.

73. The second issue which I could able to identify relates to the item of assessment of income. It will be noted on the outset that this Court made orders on 16^th August 2022. On 25^th August 2022, the Claimant issued three demands for payment totaling $57,127,668. 30.
74. In the midst of those the Claimant received a notice of assessment on 2^nd September 2022, 16 days after the orders, which are yet to be honored. The purpose was to off-set the amount in the Court order. Because of that, the Claimant argues that it cannot be assessed on income in any year prior to it receiving the income. It was expecting to receive income by 31^st of December 2022, as it being the end of the year. In such circumstances the Inland Revenue must not make any assessment.
75. However the first Defendant argues relying on S.75 (1) of the Income Tax Act that an assessment may be made under this Act at any time prior to expiry of 7 years after the years to which the assessment relates.
76. The provision simply refers to assessment may be done any time after the income for that year, and expires 7 years later to which the assessment relates.
77. The Claimant further argues that under S. 57 (1) of Income Tax Act, every person shall make a return of income for that year, not later than 31^st March following that year.
78. At that very date the Claimant argues that commissioner may require any person to furnish him with return of income for any year or part thereof.
79. The Claimant denies receiving any notice for 31^st December 2022 year even under S. 67 (1) of the Act.
80. Pursuant to S.71 (1), the Commissioner shall proceed to assess every person chargeable with tax as soon as possible after the expiry of the time allowed for delivery of returns.
81. In this case it did not happen. And the claimant argues the Commissioner had no power to raise an assessment on 1^st September 2022 for 31^st December 2022 year at any time prior to it or 31/12/22 year.
82. The Claimant continues that there is no obligation, at that time for it to furnish return of incomes for 31/12/22 year, therefore commissioner cannot yet make assessment raising liability to tax for that year. Therefore the Commissioner acted beyond his power.
83. The first Defendant further states there is an obligation shown in S.71 (3) of the Act and the provisions of S. 3 (2) (a) and S. 4 of the Act. However, that obligation is limited to, after the expiry of the time allowed.
84. The rest of the arguments will be left for the trial. At least there is argument about timing of assessing taxable incomes, and that is a serious issue.

The Third Issue Relates to accrue assessable income.

85. The first Defendants states that unpaid income is assessable if it has been accrue, S.3 (2) of the Act. This is inconsistent with Claimant’s statement in paragraph 77 (1) which read, ..” tax shall be charged for each year upon income for that year of any person which accrue in, was derived from or was received in Solomona Islands. In respect of gains or profits from any business.
86. Under the Solomon Islands Income Tax Act, specifically includes accrued income as income.
87. In the New Zealand Pocket Oxford Dictionary^[7], the word accrue means “come as a natural increase or advantage” Whether we are concern with, increase income or otherwise, is an issue to verify at trial.
88. The Claimant refers to the case of Aerolift International Ltd V Mahoe Heli-Lift (SI) Ltd,^[8] which the court held, “income tax was not payable on monies due to be paid until that money had been received by a taxpayer because it could not be regarded as “income before this occurred”.
89. The Court went further and stated that the general rule is that a sum due to a person is not his income so as to be liable for assessment of tax, unless and until it is received by him or on his behalf.
90. This is another issue which can be argued and deliberated at the trial.

The fourth Issue Relates to the Protection of the Income Tax Act by the Defendant.

91. The Claimant attested that the first Defendant is concealing himself or protecting himself under the Income Tax Act. And therefore relying on the case of Dorney V Commissioner of Taxation^[9].
92. The Counsels concede that S. 175 of Australia Income Tax Assessment Act, 1937, is similar to S.75 of Solomon Islands Income Tax Act.
93. However, the first Defendant states that Section applied where there has been an assessment. Whilst that may be so, the Claimant submits that any differences are immaterial for the purpose of this proceedings.
94. The Claimant further submits that in the case of Futuris Corporation the Court held that S. 175 Australia Act, operates only where there has been what answers the statutory description of an “assessment” and the conscious maladministration of the assessment process may be said not to produce an assessment to which S.75 applies.
95. The first defendant’s stand is that there is no maladministration of the assessment process and it has not been shown otherwise. This is not a case of tentative or provisional assessment or assessing different tax payers.
96. However the Claimant describes earlier assessment on 1^st September 2022 which should have been 31^st December 2022, as conscious maladministration of the assessment process which S.75 does not apply. Therefore assessment may be deemed invalid. The Claimant refers to the case of Deputy Commission of Taxation V Joseph Frangeh (NO.3)^[10].
97. The Claimant also refers to the case of Hydes V Commissioner of Taxation^[11]. Which recently refer to the principle in Futuris Corporation case.
98. That case supports the Claimant that earlier assessment than proper time is tentative or provisional assessment and does not answer the statutory description as “assessment” nor can the conscious maladministration of the assessment process as assessment.
99. The case further states that S.175 brings within the jurisdiction of the Commissioner when making assessment, a deliberate failure to comply with the provision of the Act.
100. The members of Australian Public Service to act with care and diligence and to behave with honesty and integrity. These considerations point decisively against construction of S.175 which will encompass deliberate failure to administer the law.
101. Nevertheless, the equitable remedy which are available at the suit of a party with sufficient interest, operate to declare invalidity and to restrain the implementation of a valid exercise of power.
102. The first defendant relies on S.83(3) of ITA, however the Claimant argues that that section refers to assessed tax and cannot be used as uncompleted or uncertainty tax.
103. The defendant submits that that section does not say that it cannot be used as uncompleted or uncertainty tax. Therefore the Claimant cannot challenge the assessment except by objection and appeal provided in the Act. Assessment had been made and there has been no agreement to reassess.
104. And that the assessment was issued once the defendant knew the amount of the interest and rent due. It was at that time the amounts accrue.
105. The defendant further refers to S. 83(3). The obligation to pay, shall not, unless the Commissioner directs, suspend by any objection or appeal before any adjustment be made.
106. Further argument related to Commissioner’s power to recover the debt under S. 83(3) and S.87 (2) where notice been served.
107. The Claimant finally conclude that the short period between ruling of this court on 16^th August 2022 and issuing of the assessment on 1^st September 2022, was an attempt to use existence tax debt, though dispute, to off-set the unpaid balance of the consent orders.
108. The fact that the issuing of final assessment before the period of assessment passes reflect the AG’s attempt to off-set.
109. The first defendant states that that is not the final assessment. Section 73 covers possible amendment and it is not a further or new assessment, it is an added additional assessment.
110. This is the most disputed issue raised by the parties. It will be further re-litigate for sure at trial or at the pre-trial conference stage. Meantime I can able to assess, this issue falls under the category as serious triable issue.

5th Issue related to abuse of process.

111. The Claimant states that the Defendant use the wording “ abuse of process” within its defence, but fails to provide any particulars, nor file any application to strike out the pleadings.
112. The Claimant then refers to the principles laid down by Tikani V Motui^[12] and Goldsmith V Sparings^[13]. And concluded there is no abuse of process.
113. On the other hand the first Defendant says it is an abuse of process in that the Claimant had an alternative remedy namely the objection and appeal process which it chose to ignore and not to use. And argue that a reasonable person would use the dispute process provided for by the Act.
114. The Counsels then engage in arguing “what are other remedy” that resolves the matter fully and directly.
115. The first Defendant says that the remedy is the dispute process provided in the Act which is a code. The Claimant is trying to use another remedy because it is out of time to object and appeal. It is not a balance of convenience.
116. The Claimant further states r 18.3.8 (d) does not assist the Defendant. The rule can only be a remedy of the Court, as there is no reference in the rules to some remedy beyond the powers on scope of the Court. The Court should be satisfied that the claimant has a reasonable cause of action. The Court should grant the orders in the reliefs. This is another issue which will be left for trial to determine.

Principles for grant of interlocutory injunctions.

117. The test is set out in the famous case of Cyanamid Co. V Ethicon Ltd (1975) All ER 604.

The tests are:

1. Whether there are serious question/issues to be tried.
2. Is damages not an adequate remedy?
3. Balance of convenience
118. In terms of serious question the first defendant denies, and relies on the case of Cabel and Wireless PLC V Commissioner of Income Tax [2004] SBHC.
119. The Crux of that case is, there is nowhere assessment be questioned except through appeal under S.79 of the Income T Act, even under an application to strike out. There is indeed an arguable case demonstrated by the Claimant which warrant a hearing.
120. One very significant aspect noted is that the orders of the court were first granted in time before the assessment notice was issued. From that fact alone it is reasonable to conclude that the notice was issued purposely to off-set the orders of the High Court from being enforced. That is indeed an arguable case demonstrated.
121. The second test in the Cyanamid case is, whether damages is not an adequate remedy. The Claimant had filed undertaking as to damages, and it is an offer. There is no risk or danger to the first defendant.
122. The Claimant is a resident company with significant land holdings. The undertaking is supported by millions of dollars of land owned by the Claimant for decades.
123. I have no doubt of the Claimant’s offer of undertaking as to damages. Even in a circumstance when the first Defendant wins the case at the end of the day, the Claimant is more than capable to remedy any claim for damages.
124. The next issue, is where does the balance of convenience lie? Clear from the arguments, the balance of convenience should tilt towards the Claimant or favors the Claimant. Therefore, to maintain the status quo until trial of the reliefs sought, the application should be granted and I therefore grant them all.

Orders:

1. An interim order is hereby granted declaring the Commissioner of Inland Revenue went beyond his powers to issue an assessment to the Claimant on 1^st September 2022, for the year to 31^st December 2022 (“The Assessment”).
2. An interim order is granted prohibiting the Commissioner of Inland Revenue from acting upon the 2022 Assessment including issuing any further notice under S. 85 of the Income Tax Act in relation to the Assessment.
3. Further an interim mandatory order is granted requiring the Commissioner of Inland Revenue to withdraw and rescind the notice given to the Accountant General on 1^st September 2022 under S. 85 of the Income Tax Act in relation to the Assessment and/or the notice given to the Accountant General on 21^st October under S. 85 of the Income Tax Act in relation to the Assessment.
4. Further an interim order is granted prohibiting the Attorney General or alternatively, the Account General from acting on the notice under S.85 of the Income tax Act in relation to the Assessment.

APPLICATIN FOR FURTHER ENFORCEMENT ORDERS.

125. The further application for enforcement of orders was filed on 9^th August 2023, supported by sworn statement filed by Ms Kabau on the same date.
126. The application may be viewed as necessary because the previous one will expire on 13^th September 2023.
127. By consent and agreement by the parties on 2^nd November 2017, the Attorney General procures that all persons occupying the land at hells point be permanently removed and paid the sum of $50 million dollars.
128. Order 4 made on 16^th August 2022, that the Claimant is entitled to take all reasonable steps to permanently remove the persons occupying the land subject to these proceedings.
129. Apparently the two orders with modifications enliven two versions. One that the defendant to immediately restrain and prohibit access or entry onto the land at Hells Point by any contractors or builders including employees, servants and agents of Reeves Icon and Hall.
130. Secondly that the defendant to permanently remove all persons occupying the land at Hells Point within one week of the date of the Orders.
131. The Hells point land being the Central subject of this case is not disputed. It is a registered land of which the Claimant has FTE title to it.
132. The orders of 16^th August 2022, that the defendant pay interest of 5 % from 2^nd November 2017 to 15^th June 2022, calculated at $11,534,246.58, payable to Claimant on 13^th September 2022, 4:30pm.
133. Despite demands on several occasion those orders were not complied with.
134. On 29^th August 2022, a further order was served by the Sheriff to execute eviction but was not eventuated.
135. A further notice given by the Sheriff in September 2022 to those occupying the land but of no effect.
136. On 2^nd September the Claimant received a “Notice of Assessment (of Income tax) for year 2022, dated 1^st September 2022, in the amount of $18,988,342.45.
137. On the same day the Inland Revenue Department issued a section 85 Notice to the Accountant General to deduct from any amount owing to the Claimant.
138. Notwithstanding Orders 6 of August 2022, the claimant representative of S.I Government, met in Honiara in a face to face meeting.
139. Despite that meeting the sum of $32,401,041.00 was not paid, only $20,000,000.00 was paid to the Claimant on 16^th September 2022.
140. On 14^th November 2022, the Claimant demanded payment of $24,818,808.32.The amount accelerated due to interest up to 14^th November 2022 and rent from 1^st August 2011 to 1^st November 2017.
141. On the same date (14/11/2022) the Solicitor General replied and raised for the first time, the allegation that Hells Point land was compulsory acquired by the Commissioner of Lands on 16^th March 2021.
142. It would appear the defendant relies on notice of tax assessment of 1^st September 2022, to off-set the amount of $32,401, 041.00 which was due to be paid on 13^th September 2022.
143. The defendant by his submissions acknowledge orders (ii), (iii) and (iv) of orders of 16^th August 2022, and explained why orders of 16^th August 2022 were not complied with – see AG Muria sworn statement filed on 6^th April 2023.
144. Together with the sworn statement of AG Muria, the Accountant General also filed a sworn statement on 6^th April 2023.
145. The AG’s statements also raise the issue of Compulsory acquisition. That sworn statement attached the Gazette Notice dated 6^th March 2021. The issue of compulsory acquisition as appear now becomes a beacon besides tax assessment notice, as grounds not to pay the balance of the consent orders? At the same time defy any execution of enforcement orders to evict occupiers, employees, servants and agents from Hells Point land or part thereof.
146. Whilst the defendant questions the Claimant for not raising the issue of Compulsory acquisition in this Court, is an oversight proposition.
147. However the claimant did utilize paragraphs 77 to 95 in his written submissions raising and arguing the validity of the compulsory acquisition.
148. If not for that matter, a full submission was not filed, it may be due to the fact that there is a separate case Civil Case No. 47 of 2022 which deals with the claim for orders quashing the declaration made by the Minister of Housing and Survey on 6^th September 2021.
149. To answer the question, whether the Court will grant a further enforcement orders, it is of significant that I will deal with the issue of compulsory acquisition briefly. The rest will be left when Civil Case No. 47 of 2023 is actually heard.
150. There is no dispute about the land or part thereof being the subject of the compulsory acquisition. It concerns PN. 192-018-357 and Lot 2014 or LR 83/R, containing a total of 121.09 hectares in accordance to the S.I. Gazette dated 17^th March 2021.
151. In the Claimant’s claim in Civil Case No. 513/2015 the Parcel number is 192-018-63, known as Hells Point land, and has an area of 121 hectares. Notably the area of land in the gazette and the current claim are the same.
152. However, I noted on record that there was a draft consent order for both Commissioner of Lands and LSL to apply to subdivide PN 191-018-358 and 192-016-357. The draft was never signed. Hence it would appear there was no subdivision done at all.
153. In the S.I Gazette which contain the declaration by the Minister concerns part of PN 192-018-537 the land is Hells Point or part thereof. It has the same name and the same size of area as the Claimant claims.
154. In the Gazette as well, the Minister exercise his powers under S. 71 (1) of the Land and Titles Act to effect the declaration that the land is required for public purpose.
155. On 8^th November 2013, in a case Levers Solomon Ltd V Attorney General^[14], the Court of Appeal found in favour of Levers Solomon Ltd, and made orders:
     • (a) that 1^st Respondent (AG rep. Commissioner of Lands) had no power under the Lands and Titles Act to give the appellant notice to resume Parcel No. 192-018-63 (or any part thereof).
     • (b) The re-entry notice of the Commissioner of Lands on 18^th July 2011 was null and void.
     • (c) The second respondent (AG representing Registrar of Titles) had no power to cancel the appellant’s FTE in Parcel 192-018-63.
156. As I have narrated above the parcel numbers appear to be different but they are still part of Hells Point land which owned by Levers Solomon Ltd. The land mass is the same.
157. The power to compulsory acquired registered land or to give notice by resumption of a land or part of it, may emerged from different legal frame work. One from reservation in clause 3 of the grant, and the other from s.71 (1) of L&TA. The processes may differ but in the end they intent to achieve the same result, that the land is to be returned to the Commissioner to be used for public purposes. This purpose is the ultimate reason for compulsory acquiring of the land.
158. Whilst the purpose may mitigate for a good course, the ultimate intention was to cease paying the balance of the consent orders and other orders in conjunction to it. Further it is more obvious the acquisition is to derail execution of any enforcement orders.
159. The land Hells Pint is the land the Defendant agreed to pay. By the consent orders of 2^nd November 2017, which the Court had endorsed becomes an order of the Court.
160. On 16^th September 2022, the S.I Government paid $20 million dollars as part payment of $50,000.00 it agreed to pay in the consent orders.
161. Why paid 20 million dollars, part of the court order for the same land which was compulsory acquired by declaration on 17^th March 2021, what would happen to the balance order of Court which the defendant had agreed to pay and had made part payment.
162. Surely the Defendant has changed its position now and again that shows it is inconsistence and un- reconcilable.
163. In the circumstances the continuous failure by the Defendant to honour the orders of the Court of 2^nd November 2017 and 16^th August 2022 is eminent.
164. The Claimant further submits that the compulsory acquisition on 17^th of March 2021, was not raised in the sworn statement of Mr. Dentana, the PS of Finance and treasury of 31^st March 2022, one year after the compulsory acquisition.
165. Again the acquisition was not raised in the sworn statement of Mr. Dauara of 4^th May 2022, filed in support of unsuccessful application to stay enforcement, about 12 and half months after the acquisition.
166. Yet still the compulsory acquisition was not raised in the written submissions tendered to the Court by the AG, as Respondent/Judgment debtor, on 15^th June 2022, thirteen months after the so called acquisition.
167. The acquisition was not raised by Mr. Dentana, the PS for Finance and Treasury, when he was cross-examined in this Court on 15^th June 2022, about 13 months after the claim acquisition.
168. The compulsory acquisition was not raised in the hearing before this court on 15^th June 2022.
169. The CA was not raised in further written submissions filed in this proceedings by the Attorney General, as Respondent Judgment debtor, on 28^th June 2022.
170. The CA was not raised in the sworn statement by the Solicitor General of 30^th September 2022.
171. The CA was not raised in the communications during September and October 2022, between the Claimant and the Defendant’s representatives, including the Commissioner of Lands.
172. All those occasions occurred after the date of the alleged compulsory acquisition to have occurred on 17^th March 2021, one year and more after the compulsory acquisition was allegedly done.
173. The Claimant only aware of the compulsory acquisition on 14^th November 2022, after the Claimant demanded payment of the balance of $24,818,808.32. It was sent to it for the first time by the Solicitor-General.
174. The Claimant further refers to authorities which it relies on the principle of res judicata. In the case of Henderson V Henderson^[15], the court stated;
     • “.....where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of the matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, in advertence, or even accident omitted part of the case. The plea of res judicata applies, except in special case, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belong to the subject of litigation, and which the parties, exercising reasonable diligence might have brought forward at the time”.
175. Further the Claimant refers to the case of JSCVTB Bank (a company in-corporate in Russia) V Pavel Valesjevich Skurikhin which the Court held^[16],
     • “An interlocutory order may have the necessary quality of finality to give rise to an issue estoppel”.
176. In the case of Desert Sun Loan Corp V Hill^[17], the Court stated,
     • “Issue estoppel is closely linked to abuse of process in that it extends to points that could have been but were not raised”.
177. In Virgin Atlantic Airways Ltd V Zodiac Seats UK Ltd which the Court stated,
     • “Except in special circumstances this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings, or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised”.
178. It can be abuse of process for a party to seek to reargue an interlocutory application, even if the relevant decision lacked the finality required to give rise to an issue estoppel. An interlocutory order expressed is being until further order can only be reopened for good reason.
179. In Chanel Ltd v Woolworth & Co,^[18] the Court stated;
     • “Even in interlocutory matters a party cannot fight over against a battle which has already been fought unless there has been some significant change of circumstances or the party has become aware of facts which he could not reasonably have known or found out, in time for the first encounter”
180. Those authorities emphasize that by raising the issue of compulsory acquisition after eight occasion identified above, give rise to an issue estoppel.
181. The defendant had his days in Court when his application to suspend enforcement was heard on 15^th June 2022 and eventually orders were made on 16^th August 2022. There was no appeal filed by him. He could have raised compulsory acquisition which had occurred on 16^th March 2021, one year three months ago, why raising later.
182. In my observation late raising of the compulsory acquisition issue is very suspicious. It could be back dated purposely to assist the defendant cease further payments to honour the consent orders and to derail execution of any further enforcement orders.
183. The defendant in his submission seek some enforcement orders need to be varied in line with the evidence provided by AG’s sworn statement of 6^th April 2023.
184. The orders are (ii), (iv) and (vi) to be varied to reflect the payment of rent to the date the subject land was compulsorily acquired and to account for the payment of $20 million to the Claimant on 13^th September 2022. All other orders remain unchanged.
185. With the reasons I narrated above and the case authorities quoted, the compulsory acquisition is tainted with abuse of Court process. It extends to a point that could have been but was not raised.
186. In fact it has caused injustice to the Clamant. Issue estoppel has barred the 1^st defendant raising in this proceeding which was not raised in earlier proceedings. I must apply the plea of res judicata and rule the first defendant is estopped, see the case of Virgin Atlantic above. It was used as a principle not to pay the balance of consent orders and to derail any enforcement orders, is a ground that this Court must reject.
187. The defendant has not filed any application, therefore is not entitled to seek variation of orders. Even if he be given privilege, the principle ground of compulsory acquisition has no merit and should be estopped by the authority of the above cases, it is res judicata now. To do so will prejudice the Claimant.
188. I will leave the rest, and more of submissions to be considered when the Civil Case No. 526 of 2021 is ever heard which the Claimants seeks to set aside the compulsory acquisition, and seek compensation of SBD$165 million if such acquisition is to proceed.
189. Meantime I will grant the Claimant’s application for further enforcement orders.
190. In conclusion, it would be most appropriate that an aggrieved party should appeal to the court of appeal against the rulings or orders this court delivered. At least a part of this broader case is settled once and for all. Currently there are other applications still on foot, and yet to be heard, perhaps more are coming on the same subjects.

Orders:

1. That application for further enforcement orders is hereby granted, and remain valid for one year from the date of this ruling.
2. It is ordered that should the Defendant/enforcement Debtor fail to pay its obligation by 30^th October 2023, 4:30 pm.
   1. The enforcement Creditor is granted orders to enforce paragraphs 1 (c) – (d) of the orders granted on 16^th August 2022, to enforce against the enforcement Debtor.
   2. That enforcement Creditor’s interest of 5% from 2^nd November 2017 to 30^th October 2023, is granted and that a sum to be calculated by the Claimant.
3. The enforcement Creditor applies that the Sheriff of High Court assist the Defendant to procure or remove the persons occupying the land subject of these proceedings, as from the expiration of payment.
4. Deliver possession of the land to the Claimant by 30^th October 2023.
5. That Cost of this hearing be paid by the first Defendant to the Claimant on Standard basis if not agreed upon.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [1975] AC 396.
^[2] [2003] SBHC 57, HC-CC 255 of 2001, and HC-CC 020 of 2003 (8 October 2003).
^[3] [2004] SBHC 66.
^[4] [2021] SBCA. G; SICOA-CAC 12 of 2020. (1 February 2021).
^[5] Ibid (2).
^[6] [2022] SBHC 47; HCSI-CC 524 of 2019 (6 July 2022).
^[7] 3^rd Edition.
^[8] [2007] SBHC 56; HCSI. C 387 of 1995 (1 June 2007).
^[9] [2008] 237 CLA 146; (2008) HCA 32 (Futuris).
^[10] [2017] NSWSC 252 (20 March 2017).
^[11] [2022] FCA 264 (22 March 2022) Federal Court of Australia.
^[12] [2002] SBHC 10; HC-CC of 2001 18 March 2002).
^[13] [1997] 1 WLR 478
^[14] [2023] SBCA; SICOA-CAC 24 of 2013 (8 November 2013).
^[15] [1843] Eng R 917; (1843) 67 ER 313 at 319.
^[16] [2019] EWHC 1407 (Comm),
^[17] [1996] CLAC 1132 at 1138-1140.
^[18][2012] AC 160.