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J.J Ltd v Commissioner of Lands [2022] SBHC 79; HCSI-CC 13 of 2020 (5 October 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 13 of 2020

BETWEEN

J.J LIMITED
First Claimant

AND:

ANTHONY CHEE MING WONG
Second Claimant

AND:

COMMISSIONER OF LANDS
First Defendant

AND:

REGISTRAR OF TITLES
Second Defendant

AND:

ATTORNEY GENERAL
(Representing the Minister of the Ministry of Fisheries and Marine Resources)
Third Defendant

Date of Submission: 21 March 2022
Date of Decision: 5 October 2022

Mr. J Taupongi for the 1^st and 2^nd Claimant
Mr. B Pitry for the 1, 2, 3^rd Defendant

Decisions on Chapter 15 Conference

Faukona R, DCJ.

1. After years of litigation the Registrar of Titles finally restored the FTE PN: 191-038-90 to the Claimant.
2. On 12^th November 2019, the First Claimant received a notice from the Commissioner resuming the property for public purpose (“Resumption Notice”). The resumption was to take place after one month. The purpose for resumption was “for expansion of the Ministry of Fisheries and Marine Resources Headquarters,” Kukum Highway.
3. On 19^th December 2019, the FTE in the property was cancelled on the ground of resumption.
4. The decision to issue notice of resumption and cancellation of the FTE gave rise to this claim for judicial review.
5. In a judicial review claim, the Court must call a conference pursuant to rule 15.3.16, as soon as practicable after the defense has been filed.
6. At the Conference, the Court must consider the matters outline in rule 15.3.18.
7. Rule 15.3.18 states;

The Court will not hear the claim unless it is satisfied that:

• (a) the Claimant has an arguable case; and
• (b) the Claimant is directly affected by the subject matter of the claim; and
• (c) there has been no undue delay in making the claim; and
• (d) there is no other remedy that resolve the matter fully and directly.

8. Notably, it is a settled law that if one of these grounds is not made out the Court must not hear the claim, see Bavare V Nerapa^[1].
9. The Crown has given concession by conceding that the only issue before the Court which is contested is rule 15.3.18 (a) – arguable case.

What is an “arguable case”.

10. The Counsel for the Claimant makes reference to three local precedents that deal with the expressions. He refers to the case of Wale V Attorney General^[2], Lonsdale V Attorney General^[3] and Axiom Nickel (SI) Limited V Tovosia^[4].
11. Those three authorities establish the term arguable case as expressed in rule 15.3.18 (a) it does not mean the Claimant must have good and compelling case, or its case is weak or likely prospect of succeeding. So long as there are factual or legal issues for argument which are fit to be investigated at trial.
12. This is quite indifferent from the view expressed by the Attorney General in his submissions that arguable case is designed as a threshold or filter to be dealt with by quick perusal of the papers and need not intended to go into the issues in depth; its aim is to exclude the hopeless or clearly groundless case.
13. It would be absurd in my view, if the Court would engage in assessing and excluding hopeless or groundless case. That actually is engaging itself by analyzing the issues which is not a time for it. To do so would be premature.
14. The background of this case was that the Defendant made a decision to resume the Claimant’s interest in the property, for public purpose.
15. What constitute public purpose is define by the case of Korean Enterprises Ltd V Attorney General^[5], which states;
    • “In a general term it must be something for the direct general benefit of the Community as the provision of service by the Government”.
16. The Claimant’s major contention circles around the resumption notice issued by the first Defendant. Whether it was for public purpose as defined by Clause 3 of the Grant Condition and Clause 10 of the 1^st Schedule of the Grant, it is an issue to be investigated.
17. The Defendant argues that the Claimants have no arguable case and that r15.3.18 (a) is not satisfied. Therefore, the Court should not hear the claim.
18. The Counsel exposes by reference to the Korean case and submits the practical intention of the Ministry of Fisheries, which provides services for public as confirmed by Dr. Ramofafia in his further sworn statement filed on 9^th March 2029.
19. The Counsel further reveals the Ministry’s plan to extend its office to cater for construction of Fisheries Market Centre over the property.
20. Apparently the Crown is attempting to have that issue decided at this conference. Whilst I must respect the content of that submission, it is premature to decide at this stage. In fact, that is the major issue to be investigated at trial when witnesses and evidence will be called.
21. The Claimants are in preparedness to call the Commissioner of Lands and the heads of the Ministry to give evidence and be cross-examined, to answer whether resumption of the Claimant’s property is for public purpose or not.
22. The Claimants will also upon cross-examination demand further evidence of a genuine plan to use the property for the purpose set out in the resumption notice. A clear evidence on concrete plans and funding must be adduces at trial. That evidence will proof the genuineness of the Ministry to use the land for public purposes.
23. Mean time the attempt by the Crown to adduce evidence to proof Public purposes is insufficient. The requirement obliged the Claimants to expose arguable issues is sufficient to provide legal basis for investigations at trial.
24. Furthermore, the Counsel for the Claimant has identified three issues in paragraph 5.7 of his submissions. They are;
    1. Whether or not the purpose for which the Claimants property was resumed is for public purpose as define by law.
    2. Whether or not the resumption notice is null and void.
    100. Whether or not the resumption notice is an abuse of process given the facts that it was made at a time the property was the subject of existing litigations, and JJ had earlier succeed in securing its title to the property after winning many legal actions.
25. The issues are not limited to the above three, but are among others which hinge on those.
26. Also noted the three cases the Crown refers to at paragraphs 10, 13 and 14 of his submissions, none of them was dismissed prematurely at Chapter 15 Conference. They all went through trial hearing of witnesses, analyzing documentary evidence before deciding the purpose for resumption, “public purposes”.
27. For reasons narrated above, I am satisfied the Claimant has an arguable case which must be tried at trial.

Orders:

1. The Claimant has an arguable case and should proceed to trial.
2. Cost in the cause.

THE COURT.
FAUKONA REX
DEPUTY CHIEF JUSTICE.

^[1] [2011] SBCA 22; CA-CAC 21 of 2011 (25 November 2011).
^[2] [2011] SBCA 35; HCSI-CC 73 of 2011 (20 May 2011).
^[3] [2013] SBHC 39; HCSI – CC 356 of 2012 (17 April 2013).
^[4] [2020] HC-SI No. 461 of 2018, Unreported (11 December 2020).
^[5] [2014] SBCA 4; SICOA-CAC 12 of 2013 (9 May 2014)