Pacific Architects Ltd v Commissioner of Lands [1997] SBHC 10; HC-CC 175 of 1995 (14 March 1997)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 175 of 1995

lockquote>

PACIFIC ARCHITECTS LTD

v

COMMISSIONER OF L OF LANDS

Before: Lungole-Awich, J

Hearing: Wednesday 26th February 1997 - Judgment: Friday 14th March 1997

Counsel: A Radclyffe for the Plaintiff - P Afeau for the Defendant

JUDGMENT

LUNGOLE-AWICH, J:

In January 1993, the plaintiff, Pacific Architects Limited, a company registered in Solomon Islands conceived a business plan to acquire land in Honiara and develop it by building residential houses. It was mindful to action its plan in legitimate and correct way. It enquired from the Commissioner of Lands about what would be required of it to obtain land. Acting upon the advice of the Commissioner the plaintiff obtained the necessary recommendation of the Ministry of Housing and Government Services. It applied to the Commissioner for allocation to it, of land parcel No 191-008 at Ngosi Honiara. With its application, the plaintiff forwarded the recommendation of the Ministry of Housing and Government Services and its own development proposal. The application was not successful, but the plaintiff was advised that it could appeal to the Minister responsible for land. It did and got the backing of the Minister who wrote a letter, exhibit A, to Land Tender Board. On 25.4.1994 the Commissioner, through its alter ego, wrote to the plaintiff, a letter, exhibit B, informing it that the Land Tender Board, in its meeting on the 25.4.1994 - 6.4.1994 (sic) had reconsidered the plaintiff's application and approved it. I set out the letter in full here:

"Exhibit B"

Ministry of Lands and Housing
P O Box G38
Honiara
Solomon Islands

Your Ref.: ; Our Ref.: ef.: LAP5/HAP5/H

Date: 25.4.94

The Manager
Pacific Architects Limited
O Bo
Hon Honiara

Dear Sir

LAND ALLOCATION PACIFIC ARCHITECT LIMITED - NGOSSI RIDGE

I am pleased to inform you that the Land Tender Board in its sitting on the 25/4/94 - 6/4/94 has re-considered your application and has approved your application for the site applied for at Ngossi as recommended by the Physical Planning Division.

The Board further suggested that the Houses built on the site will not be owned by the company but are to be sold.

Please call in this office to sign an I To S Form.

Formal offer will be given upon completion of survey work and registration of subdivision.

Yours faithfully;

(Signed) N. Maelanga

for: Commissioner of Lands
Ministry of Lands and Housing

The plaintiff signed the necessary form requesting survey of the land and drew up its business plans.

Later the plaintiff received a letter dated 2.3.1995, written for the Commissioner of Lands to the Manager of the Central Bank of Solomon Islands, and copied to the plaintiff. The letter informed the manager that the Minister had made direct allocation to several other applicants and the Commissioner decided to suspend allocation of the land. The plaintiff lodged complaint to the Ombudsman, and Ombudsman upheld his complaint. Despite that, the Commissioner has now decided to offer the land to the public on tender.

It is now known that the three to whom allocation has subsequently been made of the same parcel 191-008 are, the Central Bank of Solomon Islands, K.P.F Agency represented by a Mr. Sethuel Kelly and Fletcher Kwaimani, a business entity. Learned Honourable Attorney General, P. Afeau who represented the Commissioner of Lands informed the court that the last named was no longer interested in the land. Application letter or any other document of application by the Central Bank was not included in the case papers. K P E's application was by a letter dated 9.2.1994, exhibit C signed by Mr. Sethuel Kelly, but not addressed to anybody, although it was replied by Francis Orodani, Minister for Lands and Housing, on 21.2.1994, just 12 days after.

Submissions

Learned counsel Mr. Radclyffe for the plaintiff submitted that the plaintiff has "some right" that entitles it to allocation now. His reason was that the plaintiff has already acted on the letter of offer, by signing a form requesting survey and has drawn up some plans, it would be unfair not to proceed with allocation to the plaintiff. But Mr. Radclyffe told court that the plaintiff's claim was not grounded in contract. Counsel did not identify any principle of law upon which the claim is to be upheld and a declaration made in favour of the plaintiff, and did not refer to any statutory provision to back the claim. That sort of submission leaves court unassisted.

Honourable Attorney General seized the opportunity to point out that for a declaration of right to be made by court, a claim must be successful, and for a claim to succeed, the head of law in which the claim is grounded must be set out.

Decision

I totally agree with the Attorney General and I need not explain that further. For a moment I thought about a claim in contract although counsel for plaintiff told court that the plaintiff did not rely on contract. I considered whether the letter dated 25.4.1994, Exhibit B, written on behalf of the Commissioner could amount to firm offer leading to a contract, and which could be withdrawn only at the Commissioner's own peril. I concluded that there was no firm offer. The land had not been sufficiently identified, it was still to be surveyed, consideration or price had not been decided upon and requested from the plaintiff, and other terms that are usually imposed by the Commissioner had not been mentioned. A comparable case is Storer -v- Manchester City Council [1974] 1 WLR 1403. In that English case, a new city council refused to proceed with the sale of a dwelling and premises to a sitting tenant, the plaintiff. The sale had been arranged by the previous council. The plaintiff had signed the form sent to him by the council and only the date when lease would be regarded as having ceased and mortgage payments would commence was left open on the form. Court decided that intention to bind was there, filling in the date was a mere administrative formality; a firm offer was there. That decision was confirmed on appeal. In this case many details were lacking. A firm offer in the law of contract is an expression to another of terms upon which one is willing and intends to enter contract with another, as soon as the other accepts the expression. It is an expression of willingness with the intention to enter contract. If some further act of the one offering is still to come or necessary the offer is not yet firm and cannot lead to a contract. Academics have recently advanced the definition of an offer as an act whereby one person confers upon another the power to create contractual relations between them. See Cases and Materials on Contract Third Edition at pages 24-25, by R.E. McGarvie, C.L. Panman and P.J. Hooker. I do not think it is a useful definition because it does not make the meaning any clearer especially to ordinary people who come to court.

I also considered a claim by writ of certiorari, grounded in claim in Administrative Law. I decided it would be unfair to consider such a ground which was never raised by plaintiff's counsel so that the Attorney General would have considered it, and the matter fully addressed in court. Often attorneys general are not litigious. When sufficient notice is given, and the law upon which the claim is based is adequately identified, attorneys general consider settlement. In this case it would be unfair to include in the judgment a head of legal point such as opportunity to be heard when authorities considered allocation to the three subsequent applicants, because the defendant was not made aware of that ground. In any case, it was up to counsel for the plaintiff to raise that ground.

In the end I must dismiss the plaintiff's claim because counsel did not show that the claim is grounded in any principle of law or on statute. In the circumstances of the facts I shall excuse the plaintiff from paying costs to the defendant.

Comments

The circumstances which have led me to deny to Attorney General costs despite him having successfully defended the claim, requires comment. The plaintiff has shown here that it is a business that believes in doing its business legally and above board. It applied for land, following requirements and advices. In the end its application was successful. Then a surprise cancellation came. The circumstances of the cancellation are suspicious. Still the plaintiff pursued proper and legal procedure to raise its complaint which eventually was upheld by the Ombudsman. Despite all that the Commissioner of Lands does not take heed. What else which is not corruption is the plaintiff to do?

The success of the plaintiff's application, being only so far to the point that the Land Tender Board accepted his application, has not reached the stage where a claim in court can be successful. The Commissioner's refusal to accept the recommendation of the Ombudsman tends to encourage two destructive things. First it tends to encourage a belief on the part of upright business people that graft, that is, corruption works better. That may lead to perpetuating that vice. Secondly it establishes example that authority of the Ombudsman, a constitutional institution, can always be ignored with impunity. What is now left, it seems, is for the Ombudsman to report to parliament in terms of section 16 of the Ombudsman (Further Provisions) Act, 19&0. I think that public servants in particular, have a duty not to undermine authority of governmental institutions and departments. Recommendations of the Ombudsman made under Section 16 is a serious matter which should be acted upon unless there is exceptionally good reason not to such as legal advice from the Attorney General that the Ombudsman's interpretation of the law on the subject matter is erroneous. Even so, the Ombudsman must be afforded the courtesy of Prompt reply and clear explanation

Dated this14th day of March 1997

At the High Court, Honiara

Sam Lungole-Awich,
Judge