IN THE HIGH COURT OF SOLOMON
ISLANDS
HC-CC NO: 153 OF 2001
v
THE CABINET
(REPRESENTED BY THE ATTORNEY
� GENERAL)
&
THE COMMISSIONER OF LANDS
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
HIGH COURT OF SOLOMON ISLANDS
(FRANK O. KABUI)
<
Civil Case No: 153 of 2001
Hearing: 17th
Judgment: 20th
September 2001
P. Watts for the Applicant
>
Mr F. Waleanisia for the
Respondent
JUDGMENT
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
(Kabui, J):
By Originating Summons filed oned on 30th July 2001, the Applicant
seeks the following determination and relief-
1. Whether the Cabinet have
residual powers as under Section 4(4) to cancel the
reacquisition of the
Applicant�s land?
2. If the answer to 1 a
is in the negative thve then for consequential Orders as follows:-
2.1 An order for Certiora as follows:-
The decision of the cabinet
dated the 5March 2001 be quashedashed.
2.2 An Order for Mandamus as
fs:
The Second Respondent be
ordered to complete the reacquin proceedings and process pess payments to
the Applicant.
2.3 Thpondents to pay
the Applicant's costs of and incidentidental to this application.
2.4 Such further or other
orders as this Honourable Court deems just.
By Notice of Motion filed onup>th
September 2001, the 1st Respondent, in response to the Applicant's
Originating Summons above, seeks the following
orders-
<
(a) The court to strike out
the Originating Summons filed by the Applicant for not
complying with procedures
for seeking Mandamus reliefs according to Order 53 r7
and Order 56 r1 and for not
complying with procedures for seeking Certiorari orders
according to Order 61 r3.
(b) Costs.
(c) Such further orders as
the courms necessary.
<
The Facts
The facts are as set out in my
previous ruling dated 7th September 2001. Therehowever additional facts
ts
disclosed
by the affidavits filed by Mr Nesa, the Commissioner of Lands, on
12th September 2001 and by Mr Kaua, the Secretary to Cabinet,
filed on the same day. The additional facts are these. Sometime in
2000, the
Applicant had informed the Commissioner of Lands that he (the Applicant) was
experiencing difficulty in developing
his property due to financial
problems. Upon hearing this, the Commissioner of Lands offered to consider
the return of
the undeveloped portion of the Applicant's land Parcel No.
191-052-177. By letter dated 13th December 2000, the Commissioner
of Lands wrote to the Applicant in which he expressed his interest in taking
back Parcel
No. 191-052-177. Negotiation commenced thereafter for the return
of the land for a consideration.
lass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
Section 4(4) of the Land &
Titles Act (Cap. 133)
<
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Section 4(4) states -
..."The Comoner shall have power to hold and deal in interests in land land
for and on behalf of the Government,
and, subject to any general or special
directions from the Minister, to execute for an on behalf of the Government
any
instrument relating to an interest in land"... This is the
sub-section referred to in the Applicant's Originating Summons though not
accurately cited by him.
Based upon this subsection, the
Applicant's case in the nutshell is that the Cabinet ht no business in
deal dealing with
land on behalf of the Government. Its decision made on 8th
March 2001 in rejecting the consideration of $3 million for the
return of
Parcel No. 191-052-177 was therefore ultra vires section 4(4) above. Counsel
for the Applicant, Mr Watts, argued
that the duties of Cabinet were clearly
set out in section 35 of the Constitution all of which had nothing to do
with
the administration of land or dealing in land under section 4(4) above.
Counsel for the 1st Respondent, Mr Waleanisia, however
argued that the
reason for rejecting the consideration of $3 million by Cabinet was that
Government had no money to pay
$3 million to the Applicant. He argued that
the Commissioner of Lands had no power under section 4(4) above to approve
funds for the purchase of the Applicant's property. The power to do so, he
said, vested in the Minister of Finance under
the provisions of the Public
Finance and Audit Act (Cap. 120) and the Constitution.
Determination by the Court
From the outset, I must
acknowledge that Palmer, J. hnsidered the application ofon of
section 4(4) of the Land & Titles Act in D.J. Graphics Limited v
Commissioner of Lands and the Attorney-General and Ports Authority v
Commissioner of Lands and the Attorney-General (Civil Case Nos. 102, 40
and 164 of 1995). The facts were different but much light was shed upon
the powers of the Minister and the Commissioner of Lands and the extent
of
the powers vested in each of them. In this case, the power of the
Commissioner of Lands was concerned with his decision
to consider the return
of the Applicant's land for a consideration and the process of negotiating
for that consideration.
The Commissioner of Lands calls his action as "reacquisition"
of Parcel No. 191-052-177. I think that is a wrong terminology to use.
Fixed-term estates can only revert to the
Commissioner of Lands in two ways.
First is by forfeiture under section 136(2)(a) as read with section 141(1)
of the
Land & Titles Act. Second is by surrender under section 141(4) as
read with section 161 of the Act. In exercising his powers
under these
provisions, the Commissioner of Lands is not subject to the Minister's
directions under section 4(4) of the
Act. Section 4(4) of the Act is only of
general application as regards land policy in the administration of the Act.
It does not restrict the application of specific provisions of the Act.
Surrender of fixed-term estates is not the concern
of the Minister nor is
the concern of the Cabinet. The transaction is between the Commissioner of
Lands and the registered
owner of the fixed-term estate to be surrendered
plus of course the Registrar of Titles who will cancel the fixed-term estate
registration in favour of the Commissioner of Lands. A surrender of a
fixed-term estate is not a sale transaction. This
is important because
section 161 of the Act is silent on what level of consideration should there
be when there is a
surrender of a fixed-term estate. Form 22 however
provides for consideration to be paid by the Commissioner of Lands to the
owner of a fixed-term estate on surrender of the estate to the Commissioner
of Lands. Such payment as consideration would
have been budgeted for in the
recurrent Government budget. Whether or not this is the case here is not
known. The Minister
obviously was very concerned about the consideration of
$3 million. This was the reason why he decided to take a Paper to Cabinet
for a collective decision on the matter. I do not know why the Minister felt
it was necessary to do this because the
Commissioner of Lands could have
rejected the consideration of $3 million as being too excessive. He has the
power to
decide. It would be interesting to know whether the Commissioner of
Lands had money in his budget for this sort of payment
or not, and if so,
whether there was enough money in the budget to meet the payment of $3
million. If he had no money
in his budget, he should not have done what he
did. If he had accepted $3 million consideration, he would have created a
liability for the Government for $3 million. It would have been a disaster
for the Government if such payment had not been
budgeted for in year 2001. I
am surprised at what the Commissioner of Lands did. He provided no evidence
as to the Government's
resettlement policy nor a Cabinet decision that the
Lord Howe settlers be resettled elsewhere and that the Government should
resettle them somewhere in Honiara. In that way, Cabinet would have known
about the matter and its financial responsibility
for the resettlement
project. The Ministry responsible for resettlement would obviously have
allocated funds for it in
year 2001 budget and the budgets for subsequent
financial years if necessary. The Commissioner of Lands should not have done
what he did until he was able to obtain Cabinet authority to do it through
the Ministry responsible for the resettlement
project. The involvement of
the Minister in the negotiating team is wrong. The Minister has no role in
section 161 of
the Act. A Cabinet Paper should not have gone to Cabinet for
a decision about the consideration for the Applicant's Land. The
Commissioner of Lands should have first looked into his budget before he
said anything to the Applicant. If there was
no money in his budget or there
was only a token sum in the budget, he should have told the Applicant of
that fact. If
he was unsure of his position, he should have also told his
Permanent Secretary of that fact. Amazingly, the Minister, his Permanent
Secretary and the Commissioner
of Lands were all on one side for a deal that
was to cost the Government $3 million which the Government did not have for
that project at that time. They were only saved by the Cabinet. The
Commissioner of Lands was passing the buck to the
Cabinet to solve a problem
of his own making. He was either totally ignorant of the proper procedures
to be applied or
he is a weak person who can be overridden by pressure or
promises of financial benefit of some sort. I say this because I am
amazed
at his irresponsible conduct in this matter. Such an individual is very
dangerous to the well being of any Government
and for society at large. This
kind of conduct by some Ministers and Government officials within the
Government system
can only result in havoc to the Consolidated Fund. Any
payment from the Consolidated Fund for a purpose for which the Parliament
has appropriated no funds in the budget is a mistake and if done
deliberately, is an evil against the country and its
people. Such conduct is
often perpetrated by a few or group of individuals who are either ignorant
of the proper procedures
in Government relating to such matters or who are
selfish and wish to get rich overnight at the expense of their fellow men
in
society. It is an evil that should be stamped out from our society. This
concern was clearly aired in the Minutes
of the Cabinet decision that led to
the rejection of the deal between the Applicant and the Commissioner of
Lands. As
a result of the Cabinet decision, its jurisdiction has been
challenged by the Applicant. As to whether or not Cabinet has any
role to
play in section 4(4) of the Act, the answer is in the negative. That is, the
answer is no. This answer disposes
of question 1 in the Applicant's
Originating Summons. This being the case, the Applicant asks that the
Cabinet decision
made on 8th March 2001 be removed into this
Court and quashed. The problem here is that the Cabinet is a political body
consisting
of the Prime Minister and his Ministers. Whilst I am aware of the
fact that judicial review in terms of the scope of certiorari
is not fixed,
I do not think its scope should be extended to the Cabinet (see
O'Reilly v Mackman [1983] UKHL 1; [1982] 3 W.L.R. 1096, R v Panel on Takeovers
[1986] EWCA Civ 8; [1987] 1 A.E.R. 564 and Leech v Parkhurst Prison Deputy Governor
[1988] UKHL 16; [1988] 1 A.E.R. 485). Certiorari is refused. The effect of this is that
the Cabinet decision stands. On this basis mandamus is also refused. That
is
to say if the Cabinet decision stands, then there is no basis for mandamus
because mandamus becomes relevant only
if the way is clear for it to
operate. How can there be mandamus to force the Commissioner of Lands to
proceed with the
deal when clearly the Cabinet has said there is no money
for this project? It is both dangerous and wrong for Ministers and
Government officials to enter into contracts outside proper procedures
creating huge liabilities for the Government and
then tell the Government to
find money to meet such liabilities when such liabilities are not budgeted
for in the Government's
recurrent budget. Such obligations are often used by
the parties in whose interests the contracts were made to justify their
claims against the Consolidated Fund through the use of pressure and other
means. Mandamus would be totally pointless
in this case. There is no money
for this project. The Commissioner of Lands should have never commenced
negotiation at
all in the first place for this reason. Also, in this case,
the deal was the subject of negotiation between the Commissioner
of Lands
and the Applicant. The Commissioner of Lands has no public duty to agree to
$3 million. A consideration is reached
as a matter of negotiation between
the parties.
Aards the Notice of Motion
filed by the 1St Respondent, I need not rule on e on it. There was no
need for the 1St Respondent to file a Notice of Motion to oppose
the Applicant's case. Submissions in Court opposing the other side were
enough. As to the question of costs, I feel each party should meet his or
its own costs.
F.O. Kabui
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/67.html
