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Pari Development Co Ltd v The Attorney General [2024] SBHC 148; HCSI-CC 169 of 2015 (6 September 2024)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Pari Development Co Ltd v The Attorney General


Citation:


Date of decision:
6 September 2024


Parties:
Pari Development Company Limited v Attorney General, Attorney General


Date of hearing:
4 August 2024


Court file number(s):
169 of 2015


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Palmer CJ


On appeal from:


Order:
(1) Grant Orders for Suspension of the Enforcement Order filed 6th December 2018 therewith.
(2) Grant Consequential Orders therewith as follows:
(i) Direct that the Enforcement Order of 6th December 2018 and all subsequent Enforcement Orders thereafter be dismissed; and
(ii) Direct that the Civil Claim 169 of 2015 be dismissed with costs in favour of the Applicant/ Defendants.


Representation:
S. Banuve (Solicitor General) for the Applicant/ 1st and 2nd Defendants
N. Sariki for the Respondent/ Claimant.


Catchwords:



Words and phrases:


Legislation cited:
Solomon Islands Court (Civil Procedure) Rule 2007,
Crowns Proceeding Act S 18 (1) (b) [cap 8], S 18 (1)
Land and Titles Act [cap 133] S 182 and 183

Land Titles (Amendment) Act 2014, part II A, S 8A, 8B, 8C, 8 C (2), Subsection (1), 8 D (1)-(4)
Companies Act 2009, S 146 (1)
Cases cited:
Attorney General v Maui [2016] SBCA, Roni v Ross Mining 9SI) Ltd [1998] SBHC 144, Kololeana Development Company Ltd v Piasi [2013] SBHC 176, Suva’ahu v Omex [2001] SBHC 36, Temotu Pele Shipping Line Ltd v Pele Shipping Co Ltd [2017] SBHC 137, Sino Capital (SI) Ltd v GBC Integrated Wood Ltd [2024] SBHC 27

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 169 of 2015


BETWEEN


PARI DEVELOPMENT COMPANY LIMITED
The Claimant


AND:


THE ATTORNEY GENERAL
(Representing the Registrar of Commissioner of Lands)
First Defendant


AND:


THE ATTORNEY GENERAL
(Representing the Registrar of Titles)
Second Defendant


Date of Hearing: 4 August 2024
Date of Ruling: 6 September 2024


Counsel: S. Banuve (Solicitor General) for the Applicant/ 1st and 2nd Defendants
Counsel: N. Sariki for the Respondent/ Claimant.

Palmer CJ:

  1. This is an application by the Applicant (1st and 2nd Defendants) filed on the 6th December 2018 for orders inter alia to have the Enforcement Order, being order for possession of land perfected, signed and sealed on 8 November 2018, suspended, and in lieu thereof, an order seeking a declaration that the Respondent/ Claimant, Pari Development Company Ltd is entitled as against the Crown to the subject land, and such other orders as may be issued by the Court.
  2. That application has not been listed for one reason or another until the file has been passed onto me to manage since June 2023.

The Statement of the case.

  1. The statement of the case sets out the brief background facts of the application.
  2. The application arises from the issue of an Enforcement Order by the Registrar of High Court dated 8 November 2018.
  3. That Enforcement Order states as follows:
  4. The Applicant alleges that the Enforcement Order contravenes section 18(1) (b) of the Crown Proceedings Act [cap. 8], which expressly prohibits the Court from making an order for the recovery of the land or the delivery of the property and rather it ought to have limited itself to issuing an order declaring that the Enforcement Applicant/ Respondent was entitled as against the subject land.

Section 18(1) (b) of the Crown Proceedings Act (cap. 8).

  1. Section 18(1)(b) of the Crown Proceedings Act (cap. 8) states:
  2. In support of its submission, the Applicant relies on the case authority of the Attorney-General v Maui[1]. In that case, the Court of Appeal reiterated the law prohibiting the issue of injunctory orders against the Crown as set out in section 18(1) of the Crown Proceedings Act.
  3. Learned Counsel, Mr. Banuve submits that paragraph 18(1) (b) is clear on its face as to the prohibitory nature of the provisions against such orders as set out in the Enforcement Order.

Brief Background to this case.

  1. The history of this case can be traced back to the Grant of a Profit to the Respondent (Claimant), on or about the 10th December 2012 for a period of ten years, over the following five Perpetual Estates of land:
  2. The five parcels of land are located in Noro Township in Western Province.
  3. The terms of the Grant of Profit are set out in the First Schedule as follows:
  4. A Felling License No. A101301, subsequently was acquired by the Respondent over those parcels of land for a period of five years from 25 June 2013 to 25 June 2018. A technology and marketing agreement was also entered into on the 2nd July 2013 for the subcontracting of the felling operations.
  5. On or about the 22nd December 2014, the Registrar of Titles issued a letter cancelling the Grants of Profit over the five (5) parcels of land.
  6. In that letter, the Registrar of Titles (“the RoT”), gave inter alia the following reasons for the cancellation:
  7. As a result of that cancellation, the Respondents/ Claimants filed this claim for judicial review in this Court on the 29th April 2015.

The Statement of Claim.

  1. It is important to understand from the outset what this claim is for. It is a judicial review of a decision entered into by the Registrar of Titles on advice from the Commissioner of Lands to have the Grant of Profit (“the GoP”) cancelled therewith on the grounds set out in the letter.
  2. The claim sought the following orders:
    1. A declaration that the cancellation on or about 22 December 2014 by the Commissioner of Lands and/ or the Registrar of Titles of the Grant of Profit granted to the Claimant on 10 December 2012 is null and void and of no effect on the grounds that:
      • (i) The cancellation was unlawful in that it did not conform with the requirements of sections 182 and 183 of the Land and Titles Act (cap. 133);
      • (ii) The cancellation was in breach of the rules of natural justice in that no opportunity was given to the Claimant to be heard prior to the cancellation of the Profit;
      • (iii) The cancellation was unreasonable in that it was based on ulterior motives and/ or irrelevant considerations;
      • (iv) The cancellation was unreasonable in that the Claimant was not in breach of any of the conditions upon which the Profit was granted to justify the cancellation of the Profit;
      • (v) The cancellation was done outside the Land Board which after 1 December 2014 has the power to allocate interests in any land by virtue of the Land and Titles (Amendment) Act 2014.
    2. A consequential order that the cancellation of the registration of the said Grant of Profit be quashed and a mandatory order that the registration of the Grant of Profit in the name of the Claimant be reinstated;
    3. Damages for any loss incurred by the Claimant consequent upon the cancellation;
    4. Costs on indemnity basis.
    5. Any other orders as the Court deems fit.”

THE CONSENT ORDERS ISSUED.

  1. It is somewhat unusual to note that, following the filing of the claim, three consent orders were entered into and issued by the court. The first one is dated 10th December 2015 and filed on the 11th December2015. The second one is dated and filed on the 27th December 2017, and the third, is dated and filed on the 16th May 2018.
  2. The first Consent Order dated 10th December 2015, provides as follows:
    1. The cancellation of the Grant of Profit over parcels of land in Noro, Western Province, namely Parcel Numbers 098-009-40, 098-010-0001, 098-011-110, 098-012-472, 098-016-0001 is hereby quashed.
    2. Consequential upon Order 1 hereof, a mandatory order reinstating the Grant of Profit in the name of the Claimant over Parcel Numbers 098-009-40, 098-010-0001, 098-011-110, 098-012-472, 098-016-0001.
    3. In lieu of damages for loss incurred by the Claimant as a result of the cancellation, the First Defendant undertakes to facilitate forthwith the transfer of the Fixed-Term Estates in Parcel Numbers 098-009-40, 098-010-0001, 098-011-110, 098-012-472, 098-016-0001 to the Claimant.
    4. No orders as to costs.”
  3. The effect of this consent order it seems was to have the cancellation of the Grant of Profit over the specified parcels of land to be quashed and re-instated. The second effect was to compensate the Respondent Company for any losses incurred as a result of the cancellation by the First Applicant (Commissioner of Lands), and agreeing to effect “transfers” therewith of the Fixed-Term Estates over those specified parcels of land to the Respondent Company.
  4. The second Consent Order dated 27th December 2017 provided as follows:
    1. The Consent Order filed herein on 11th December 2015 is vacated.
    2. In consideration of the cancellation by the 1st Defendant of the Grant of Profit previously given to the Claimant over Parcel Numbers 098-009-40, 098-010-0001, 098-011-110, 098-012-472, 098-016-0001, the First Defendant shall transfer to the Claimant, and the 2nd Defendant shall register in the name of the Claimant, the following plots of land:-
    1. No order as to costs.”
  5. The second set of consent orders appears to accept the cancellation of the Grants of Profit and have that conceded. In lieu thereof, it sought to have the specified Parcels of land to be transferred and registered in the name of the Respondent Company.
  6. Finally, the third and subsisting set of Consent Orders dated the 16th May 2018, stated as follows:
    1. The Consent Order filed herein on 27th December 2017 (2nd Consent Order), is vacated.
    2. In consideration of the cancellation by the 1st Defendant of the Grant of Profit previously given to the Claimant over Parcel Numbers 098-009-40, 098-010-0001, 098-011-110, 098-012-472 and 098-016-0001, the 1st Defendant shall transfer to the Claimant and the 2nd Defendant shall register in the name of the Claimant, the following plots of land:-
    1. No order for costs.”
  7. The effect of that final set of consent orders was to add “paragraph (e)”, which included other parcel numbers not included in the earlier orders.
  8. Following the issue of that consent order, the Respondent/ Claimant subsequently filed an application for an Enforcement Order – Order for Possession of Land, on or about the 7th November 2018, which was issued by the Registrar on the 8th November 2018.

The Enforcement Orders.

  1. The Enforcement Order (see paragraph 5 of this judgment) issued by the Registrar seeks to have the terms of the Consent Orders of the 16th May 2018 enforced by directing the Commissioner of Lands to “transfer” (sic), the Perpetual Estates (see paragraph 25 above) to the Respondent / Claimant. Perhaps what is meant is to make a grant of the fixed-term estates of those Perpetual Estates to the Respondent Company.
  2. It is those Enforcement Orders the Applicant seeks to have suspended.
  3. Why this was not given priority since is not clear but that has contributed unnecessarily to the prolonged delay in having this claim listed and deliberated upon. I note that other interlocutory applications have had to be considered by the Court when the issue raised in the claim should have been given priority. It is the duty of counsel to expedite cases through to finality timely and not allow the court to be distracted by interlocutory applications that simply prolong the determination of a case.
  4. I do note too that there appears to be a concession for the suspension[2] of the enforcement orders by Mr Marahare of Counsel for the Respondent Company, but was never formalized.

The Application to Suspend the Enforcement Orders of 8th November 2018.

  1. It is clear that the Applicant has not sat on his rights but ran to the Court to have the Enforcement Orders suspended. That application to suspend was filed on the 6th December 2018, less than one month after the issue of the Enforcement Order and therefore should have been given priority by the parties rather than being distracted by other unnecessary interlocutory orders.
  2. The grounds relied on are set out in paragraphs 6 – 8 of this judgment. In essence the Applicant seeks to have that Enforcement Order upended as being contrary to paragraph 18(1)(b) of the Crown Proceedings Act (cap. 8), which provides that:
  3. In his written submissions filed on the 26th July 2023, the learned Solicitor General (then), sought to provide an update of events and developments that have occurred since the issue of the Consent Order of 16th May 2018.
  4. He relies on the matters deposed to in the supporting sworn statement of Alan McNeil (Commissioner of Lands), filed on 6th July 2023, of those developments.
  5. In his submissions he states that the Application for the Suspension of the Enforcement Orders of 6th December 2018 should be granted and the said Enforcement Order to be dismissed therewith.
  6. Secondly, he submits that this Civil Claim No. 169 of 2015 ought to be terminated as the declaratory orders sought have been subsumed and replaced wholly by the Consent Orders of 11th December 2015, 27th December 2017 and the 16th May 2018.
  7. He further pointed out in his submissions that the fixed-term estates that had been granted to the Respondent, are the subject of separate proceedings for forfeiture in CC 318 of 2021 between the Commissioner of Lands and the Respondent Company, due to non-fulfilment of grant conditions by the latter.
  8. He pointed out that the issue of grants being issued to the Respondent Company without the endorsement of the Land Board may be revisited for determination in that case.
  9. He also pointed out that in respect of the grant of fixed-term estates under the Consent Order yet to be effected, the Land Board had granted approval for a term of years on or about the 25th May 2021 but that this had not been accepted by the Respondent Company.
  10. With that refusal, he says that the Commissioner of Lands has no further obligations to discharge under the Consent Orders and accordingly the Claim should be dismissed therewith.

The Defence.

  1. The defence of the Respondents to the Application for Suspension of Enforcement Orders, is to argue that the Consent Orders entered into amounted to a final and binding order and that any challenges ought to be by way of an appeal. Mr. Sariki of Counsel for the Respondent sought to rely on numerous cases[3] which supported the submission that a Consent Order if it deals with the substantive issue of the claim in one form or another, can be regarded as amounting to a final order.
  2. He further submits that there being a final order imposed, the Application for Suspension of Enforcement Orders is frivolous and vexatious as it seeks to interfere with the final orders. He submits the Court becomes functus officio and is estopped from bringing any action to interfere with the order.

Discussion and Decision.

  1. The first issue for determination is the question of validity of the three Consent Orders and their effect.
  2. I do not think at the end of the day there is much dispute as to their effect and validity. That has been conceded by Mr. Banuve in his submissions.
  3. In the sworn statement of Mr. McNeil filed in support on the 6th July 2023, he deposes at paragraph 11, that his predecessor (a former Commissioner of Lands), had granted a number (8) of fixed-term estates to the Respondent Company pursuant to the Consent Orders of the Court.
  4. In paragraph 12, he states that without developing the land in accordance with the grant conditions, the Respondent Company sold some, or sub-divided and then sold others to third parties. These are set out in detail in that paragraph.
  5. As for the remaining parcels referred to in the Consent Orders, he states that he had sought and obtained the sanction of the Land Board to transfer to the Respondent Company parcels numbers, 098-009-051, 098-009-053, 098-009-055, 098-009-057, 098-009-058, and 098-009-063.
  6. At paragraph 15, he states that he obtained approval from the Land Board on 25th May 2021 to offer the remaining fixed-term estate parcels to the Respondent Company on a non-renewable basis for a term of 7 years and 8 months, intended to commence on the 1st October 2021, with the payment of the offer to be made within 3 months of the Letters of Offer issued. He states that this period of 7 years and 8 months offered was to make up for the remainder of the cancellation of the Grant of Profit initially for a period of 10 years, but was cancelled after a period of 2 years and 4 months.
  7. Those offers however, were rejected by the Respondent Company.
  8. Mr. McNeil further states at paragraph 17, that at a subsequent Land Board Meeting on the 7th September 2021, the Board agreed to maintain the offers made and that they would expire within 3 months thereafter, if the requisite fees were not paid by then.
  9. In his submissions, Mr. Banuve concludes that there being no acceptance and payment of requisite fees, that the First Defendant had discharged his obligations pursuant to the terms of the Consent Orders issued.
  10. This now raises the next relevant question for consideration, whether there has been compliance with those Consent Orders.
  11. I have heard and considered submissions by counsel on this issue, noting the written submissions that have been filed in support as well as the various sworn statements filed in support.
  12. The law is quite clear on the issue of grant or transfer, of fixed-term estates etc.

THE LAND AND TITLES (AMENDMENT) ACT 2014

  1. The essential change brought about by the Land and Titles (Amendment) Act 2014 (“the LTAA 2014”), is to remove power from the Commissioner of Lands to effect direct grants or transfers, and to make him subject to the directions of the Land Board, established under section 4 of the LTAA 2014:

(a) to hold and deal in interest in land subject to section 8(C); and

(b) to execute any instrument relating to an interest in land and such other powers as are provided for under the provisions of this Act.” (Emphasis added).
  1. The new Part established by the LTAA 2014, is headed as follows: “PART IIA – ESTABLISHMENT OF THE LAND BOARD AND ITS POWERS AND FUNCTIONS”.
  2. Section 8A sets out the objects of the new Part IIA as follows:
  3. Section 8B in turn provides for the establishment of the Board and the composition of its membership.
  4. The relevant section for the purposes of this claim, is section 8C, which sets out the powers and functions of the Board in land allocations as follows:
  5. It is important to note that these extensive powers that had been conferred upon the Board, used to be exercised by the Commissioner of Lands. That responsibility previously exercised by the Commissioner has now been relegated to one of delegation in writing, from the Board. Subsection 8C(2), of the LTAA 2014 provides, that the Board may in writing, delegate any of the powers and functions set out in subsection (1) to the Commissioner.
  6. There is no evidence however in this matter, that any delegation in writing has been done.
  7. So where does this all lead to in terms of question of compliance with the terms of the Consent Orders?
  8. In his sworn statement filed on the 6th July 2023, at paragraph 11, Mr. McNeil deposes that in respect of the 8 properties, there has been compliance when those properties were transferred by the former Commissioner of Lands to the Respondent Company.
  9. I note some of those properties[4], are now the subject of separate proceedings in civil claim 318 of 2021.
  10. With regards to the remaining properties[5], Mr. Banuve submits that compliance had also been effected with offers being made but rejected, and accordingly the Commissioner of Lands is no longer bound by the Consent Orders.
  11. Mr. Sariki on the other hand takes the view that the Consent Orders have the effect of finality and cannot be challenged or set aside, except on appeal. The Applicants therefore have not complied with those orders to have the remaining properties transferred to the Respondent Company.

Decision – Consent Orders.

  1. The first point to note is that with the enactment of the LTAA 2014, a new level of responsibility and accountability has been introduced to secure the efficient, fair and just administration of Government land.
  2. Consistent with the object to introduce the formation of a Land Board, it sought to remove the power of decision-making over Government land matters, from one person, and confer this on a Board, for purposes of better accountability, transparency and equity, and to reduce illegal, wrong and unjust allocations of land as had occurred in the past, it seems.
  3. This meant that any allocations of land from date of commencement of the amendment, (1st December 2014), must receive the approval of the Land Board, unless that power had been delegated in writing to the Commissioner of Lands.
  4. Accordingly, what transpired as deposed to by Mr. McNeil in his sworn statement filed 6th July 2023, in my considered view, were entirely consistent with seeking to have the terms of the Consent Orders complied with.
  5. It is relevant to note that any orders of the Court must be lawful, that is according to law. Any orders of the Court issued therefore must be construed to be consistent with any law that applies. In the particular circumstances of this case, that required compliance with section 8C (1) of the LTAA 2014. The submission therefore by Mr. Sariki that the Court orders override, or take precedence over the requirements of the law cannot be sustained.
  6. I am satisfied there was compliance when the offers were made as required by the Land Board to the Respondent Company. Those offers however were ultimately rejected.
  7. It is also equally pertinent to note the effect of the LTAA 2014 on Provincial Land, bearing in mind these plots of land are located in Noro, in the Western Province.
  8. Section 8D (1) - (4) provides as follows:
  9. This provision again reiterates the importance of the role and responsibility conferred upon the Land Board, in relation to the allocation of provincial land.
  10. Having carefully considered the submissions on this particular issue of compliance, I am satisfied there has been substantive compliance as submitted by Mr. Banuve on the part of the First Applicant, and that therewith, his obligations have been fully discharged under those Consent Orders.

The question of validity of the Enforcement Orders.

  1. This now brings me finally to consider the Application to Suspend the Enforcement Orders of 8th November 2018.
  2. I have already stated in this judgment that this application should have been given priority as the Applicant had ran to the court quickly to have it suspended therewith.
  3. In any event, the proviso to section 18 (1) (b) makes it plain and clear that:
  4. The wording of paragraph (b) makes it abundantly clear that an Enforcement Order against the Crown is prohibited. Instead what is permitted, are declaratory orders as stated as well in the case of Attorney-General v. Maui[6]. The Enforcement Order accordingly is defective on its face and contrary to paragraph 18 (1) (b) of the Crown Proceedings Act, and should not have been issued in the first place by the Registrar.
  5. The Registrar instead, should have rejected the Application for Enforcement Orders and directed that an Application for Declaratory Orders be filed and the matter referred back to the Court for consideration.
  6. It is also pertinent to note that in the light of the LTAA 2014, the Land Board should either have been joined as a third defendant or as a third party.

The De-Registration of the Respondent Company and its effects.

  1. I note this issue of de-registration of the Respondent Company has not been formally raised in submissions in this particular case but was raised in another application for restraining orders filed on the 15th April 2024. That application for restraining orders was raised as a result of further activities on the subject properties in dispute between the parties in this case.
  2. That was heard as well and written submissions received but this Court has decided to give priority to the earlier application, as the determination of that question would resolve the ongoing interlocutory applications in respect of this claim.
  3. There is however, one striking feature that has been raised in the submissions of Mr. Waiwaki, of Counsel for the Defendants on behalf of the Attorney-General in respect of that application.
  4. In his submissions filed on the 30th May 2024 opposing the Application of the Claimants for restraining orders, he has filed in support a Certificate from the Registrar of Companies, which states that as from the 1st November 2023, the Respondent Company had been de-registered from the Register of Companies on 1st November 2023. That Certificate is dated 22nd May 2024.
  5. I take judicial notice of this Certificate and note that as of the 1st November 2023, the Respondent Company is non-existent, that is no longer a legal entity and therefore cannot provide instructions to Counsel. This position and status of a de-registered company has been upheld in various decisions[7] of this Court previously.
  6. I note there is no evidence before me that the status of the Respondent Company has changed, that is, it has been restored to Register of Companies (the Solomon Islands Register).
  7. I am satisfied as well for this added reason, the Respondent Company has become non-existent as of 1st November 2023. It is pertinent to note, that section 146(1) of the Companies Act 2009 deals with the property of a de-registered company as follows:
  8. On this reason alone this claim should be dismissed herewith.

Decision and Final Orders:

  1. For the reasons given, the following orders can now be made. In relation to the original Application for suspension of Enforcement Orders filed on the 6th December 2018, the order sought for suspension should not only be granted, but the Enforcement Order and subsequent Enforcement Orders issued therewith, should be dismissed forthwith.
  2. Secondly, the Claim should be dismissed therewith, with costs in favour of the Applicant/ Defendants.

ORDERS OF THE COURT:

(1) Grant Orders for Suspension of the Enforcement Order filed 6th December 2018 therewith.
(2) Grant Consequential Orders therewith as follows:

The Court.

[1] [2016] SBCA 4; SICOA CAC 24 of 2015 (22 April 2016)
[2] See sworn statement of Savenaca Banuve filed 13 May 2019, paragraphs 10 - 14
[3] Roni v. Ross Mining (SI) Ltd, [1998] SBHC 144; HCSI-CC 60 of 1997 (1st April 1998);
Kololeana Development Company Ltd v. Piasi, [2013] SBHC 176; HCSI-CC 181 of 2007 (1st November 2013) at paragraph 24;
Suva’ahu v. Omex [2001] SBHC 36; HC-CC 173 of 2000 (19 June).
[4] Fixed-term estates in Parcel Numbers: 098-009-052, 098-016-1, 098-009-054, 098-009-065, 098-011-169, 098-011-145, 098-012-545.
[5] See paragraph 47 of this judgment.
[6] Ibid.
[7] See Sino Capital (SI) Ltd v. GBC Integrated Wood Ltd [2024] SBHC 27; HCSI-CC 659 of 2020 (13 March 2024); Temotu Pele Shipping Line Ltd v. Pele Shipping Co. Ltd [2017] SBHC 137; HCSI-CC 65 of 2015 (12 May 2017); and Mugihenua Investment Co. Ltd v. Supreme Resources Company Ltd [2015] SBHC 73; HCSI-CC 211 of 2015 and CC 252 of 2015 (28 August 2015).

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