Dausabea v The Cabinet [2001] SBHC 67; HC-CC 153 of 2001 (20 September 2001)

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: 17^th

Judgment: 20^th 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 30^th 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 12^th 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 13^th 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 8^th 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 1^St Respondent, I need not rule on e on it. There was no need for the 1^St 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