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Helicopter Support Solomon Islands Ltd v Attorney General [2021] SBCA 5; SICOA-CAC 27 of 2019 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. Helicopter Support Solomon Islands limited (hereinafter called the Appellant) brought civil proceedings against the Commissioner of Lands, the Ministry of Communication and Aviation and the Civil Aviation Authority through the Attorney General. All parties to this appeal have consented to the matter being disposed of through the circulation of papers given the present inability of the Court of Appeal to sit in Honiara in 2020.
2. In a claim filed 13^th August 2018 the appellant sought a declaration and damages. The claim concerns a parcel of land at Henderson International Airport, parcel number 192- 004- 37. The appellant, on 12^th September 2012 applied to the Commissioner of Lands for a lease over that parcel of land, 192- 004- 37, which adjoins a further parcel already then occupied by the appellant. The purpose of this request was to allow the appellant to expand its operations at Henderson International Airport.
3. A response came in March 2013 from the then Commissioner of Lands offering a fixed term estate of 50 years in parcel number 192 - 004 - 37. In error, that offer was addressed to Solomon Islands Terminal Services Limited.
4. Subsequent to that incorrectly addressed offer, two things happened. On 1^st July 2013 the appellant accepted the offer from the Commissioner of Lands, paid the relevant premium and fees in total SB$11,492. Receipt number B1655958 was issued by the Government of Solomon Islands on the same day. Secondly, the error in addressing the offer was acknowledged by the Commissioner of Lands in correspondence dated 3 August 2017. In its defence, the defendant specifically admits this acknowledgement of error. That concession, we consider, was a correct concession taking into account that the Director referred to by name in the letter of March 2013 was indeed a Director in the Appellant Company.
5. This appears to be the mistake referred to in the defence filed by the Respondent and, one might have thought, put an end to further references of mistake. Within the appeal materials there appears no other material suggestive of any mistake on the part of the Respondent. We will return, however to the question of mistake later in this judgment.
6. The essence of this claim is that the Commissioner of Lands failed to prepare, sign and register the grant of the fixed term estate in parcel number 192- 004- 37 in favour of the appellant after acceptance of the offer and payment of the prescribed amounts by the Appellant. No reason, other than mistake, is given for this failure other than, through passage of time, the land is now required for public development of the same land as part of an enhancement to the airport facility, financed by a donor country.
7. There is no evidence of when this need to retain or re-acquire the land came into existence. Equally, there is no evidence that the public purpose requirement existed at the time of the original offer. Indeed, the preponderance of evidence available within the appeal material suggest otherwise, given that the Civil Aviation Authority in 2013 supported the appellant’s application for the land.
8. What appears to be the case is that the Respondent now does require the land for a public purpose and is relying upon its own inaction to deny the appellant title to the land which the Commissioner of Lands had previously offered and for which payment had been made.
9. Looking at the defence as filed one can ascertain that the grant of title to the appellant was neither signed nor registered “because the letter of offer issued to the Claimant (appellant) is a mistake. It is further asserted that the letter from the Civil Aviation Authority supporting the application “is a mistake”. There is no evidence to support this assertion at the time the letter was written. If the mistake, the identity of which is not specified in the defence, is that the land is presently required for public purposes, no doubt the letter would not have been written if that set of circumstances had existed at the time that it was written. The defence continues that the offer of land “was a mistake” and that the appellant developed without title.
10. Given the concession that the ‘mistake’ in addressing the offer letter to the correct individual Director but to the wrong company was made both in writing to the appellant and within the defence, there is little remaining on which the Respondent can rely to avoid liability for this present situation.
11. There is evidence within the appeal material that, when alerted to the need to relocate, the appellant took steps to secure alternative land within the airport, which land has now been allocated to another.
12. It is not clear, in the circumstances, why counsel for the Respondent persisted in maintaining any mistake in these proceedings. There appears to be no basis in fact to maintain that defence. It may well be the case that there is now a need to take the land for a public purpose and that SIG could successfully embark upon that process were the land registered in the name of the appellant, but that would involve SIG in negotiating a fair price for the land and any permitted development with the appellant prior to completing the acquisition. This process is set out in section 71-81 of the Land and Titles Act Cap 133. SIG is relying on the fact that its own Commissioner of Lands never registered the title offered to the appellant and thus has no need to follow the process.
13. Turning to the judgment appealed, we agree with the learned trial judge that the mistake referred to in the defence does not exist. This is set out in paragraph 5 of the judgment. In his words:-
    • “Mr Noapu’s confirmation clears the air that the parcel No. 192-004-37 was actually offered to the claimant (appellant) and not to Solomon Islands Terminal Services.”
14. The judge continued:-
    • “The offer was accepted by the claimant when he fulfils his obligation by paying the schedule fees and complied with the grant conditions. The contract was completed at that stage and the usual procedure would be that the Commissioner of Lands would then facilitate they transfer of the estate....”
15. As this did not happen prior to the land being required, as it now is, for public purpose, the present Commissioner of Lands finds himself in an invidious position. A decision has been made that the land is required for public purpose, and that decision, it seems, is accepted by the appellant. This current situation may well mitigate against a declaration in the terms sought in the claim, but whether it should properly displace payment of appropriate compensation remains to be answered.
16. The learned trial judge did not consider compensation to be appropriate. That decision was based on the notion that the appellant made a choice to proceed with development without first securing title. That is, as a question of fact, a correct position. Whether it is, as a matter of law, the correct position falls to be determined by this Court and we, reluctantly, do not agree with the finding of the learned trial judge on this point.
17. We take the view that the respondent cannot rely on its own failure to complete the transaction as describe in paragraph 5 of the judgment to then assert that there is no requirement to pay compensation for development which took place after the appellant had successfully negotiated and paid for this parcel of land. Registration was not within his gift, that must come from the Registrar of Lands. The only reason given for non-registration in the defence filed was that of mistake and, as must be clear by now to anyone, there was no mistake when the offer was made.
18. On the question of quantum, in the court below that was not challenged. Liability was challenged, based on mistake but not quantum. We consider that, were the amount of damages claimed to be challenged, the time to do so was in the defence and at trial. This never happened, and so we conclude that the question of quantum is decided.
19. It would be otiose to grant the declaration sought requiring the Registry of Lands to register this title in favour of the appellant and then require the process of compulsory acquisition to being and, after much wasted time and expense, arrive at the same conclusion. We, however, confirm that, absent the present plan, disclosed in 2107 by the Respondent to the appellant, the appellant would have been entitled to the declaration that is sought. Taking into account the 2017 plan, the Respondent is obliged, and now so ordered, to pay to the appellant that such which represents expenditure on the site, being an unchallenged SB$2,936,000. Costs of and incidental to this appeal are awarded to the appellant to be paid by the respondent.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member