Kali'uae v Commissioner of Lands [2009] SBHC 4; HCSI-CC 98 of 2008 (19 February 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 98 of 2008

BETWEEN:

SAMANI LOGARA DAUSABEA KALI’UAE
Claimant

AND:

THE COMMISSIONER OF LANDS
1st Defendant

AND:

MANAGER OF LANDS CENTRE
2nd Defendant

AND:

THE CHIEF VALUER OF LANDS
3rd Defendant

AND:

EDDIE KOUTO
4th Defendant

Date of Hearing: 4 February 2008
Date of Decision: 19 February 2009

S Woods & D Nimepo for 1st, 2nd and 3rd Defendants
S Kali’uae in person
Mr Baker on behalf of A Tinone for 4th Defendant (excused)

DECISION ON APPLICATION TO
STRIKE OUT CLAIM

Cameron PJ.

1. The first, second and third defendants apply to strike out the amended statement of claim dated 24 November 2008. The fourth defendant does not join in that application.

2. The brief facts are that by an agreement for sale of land dated 26 November 2006, the claimant agreed to purchase from the fourth defendant the fixed term estate of a vacant lot of land. The purchase price was SBD$90,000.00. Originally, the fourth defendant had been granted a 50 year fixed term estate in the land by the Commissioner of Lands (first defendant) from 1 November 1999. Its on-sale to the claimant was conditional on the Commissioner of Lands consenting to the transfer, which consent was given and the sale concluded. At the time of that on-sale, the claimant alleges that the seller (fourth defendant), provided him with a written valuation from the Chief Valuer of Lands (third defendant) assessing the land’s value as at 1 November 2006 at $100,000.00.

3. The fourth defendant now complains that the land was worth only $45,000.00 at the time of sale, and in this proceeding he sues the fourth defendant for misrepresenting the value of the land at $100,000.00 and claims from him by way of damages $45,000.00 (the difference between the $90,000.00 paid and the alleged actual value of $45,000.00).

4. However, in addition the claimant has included in the proceeding the Commissioner of Lands, the Manager of Lands Centre (an administration arm of the Commissioner of Lands), and the Chief Valuer of Lands. Various causes of action are alleged against these government entities, including conspiracy.

5. The essential complaint against the Commissioner of Lands and his office is that he breached his statutory duty to ensure compliance by the original purchaser of the fixed estate (fourth defendant) with the original terms of the instrument granting him that estate. In particular, the instrument obliged the fourth defendant within 18 months of the grant to erect a building on the land, which was never done. There were also less significant obligations which the claimant complains were not carried out, such as maintaining bush and shrubs in the area. For failing to enforce these obligations against the fourth defendant the claimant seeks an unspecified amount in damages against the Commissioner of Lands.

6. There is a fundamental misconception as to the claimant’s rights. In particular, he purchased the property as a vacant piece of land. I refer to clause 9 of the agreement for sale, which provides:

"This agreement is entered into on the basis that the Purchaser has inspected the property and has made a voluntary and willing decision to purchase the property".

7. Consistently with that, the valuation from the Chief Valuer, upon which the claimant says he relied, valued the land on the following basis:

"Improvements

There a (sic) no structural improvements on the land. Land is still un-developed. Proposed development would be residential".

8. Thus the claimant purchased the land as a vacant site, and there was no clause in the agreement for sale requiring the erection of a building. For the claimant to now assert a breach of his rights because the land has no building on it is almost incomprehensible. He got precisely what he contracted for, a vacant lot. His assertion that it was for an inflated price is completely beside the point when considering the position of the first and second defendants, who neither determined the sale price nor valued the land.

9. There is a further complaint that the fourth defendant on settlement of the sale failed to pay an outstanding annual rental of $250 to the Commissioner of Lands. However, the agreement for sale requires that "the Vendor shall be responsible for settling all rentals due on the property to the Commissioner of Lands". If the claimant has suffered loss as a result of the fourth defendant’s failure to comply with this condition then his remedy lies against the fourth defendant and not the Commissioner of Lands.

10. For these reasons I do not consider it necessary to consider in any detail the claimant’s assertion that the Commissioner of Lands breached statutory duties in not enforcing historically (and before the claimant came into the picture at all) compliance by the fourth defendant with various obligations under the instrument of grant, such as the one to erect a building. However, having regard to the ability of the Commissioner of Lands to waive compliance with obligations of grantees (s.136 Land and Titles Act 1969) and the provisions of the Act generally, I consider the Act confers on the Commissioner of Lands discretionary powers when it comes to enforcing or otherwise obligations by grantees, and not mandatory duties.

11. For the reasons given I consider there to be no reasonable cause of action disclosed against either the Commissioner of Lands or the Manager of Lands Centre. I note that the claimant himself had doubts as to who were the correct parties as he prefaced his amended statement of claim by stating "the Claimant being in doubt as to the person from whom he is entitled to redress".

12. As to the Chief Valuer of Lands, a proper cause of action against him in negligence may exist provided it is pleaded properly having regard to the requirements of foreseeability, proximity, and justness and reasonableness (see Caparo Industries plc –v- Dickman [1990] 1All ER 568). However, these essential requirements are absent from the pleadings in the amended statement of claim. There is a further difficulty that the claim seeks redress against the Chief Valuer of Lands based on the same basis as that alleged against the Commissioner of Lands and his office – that is, the three defendants have been treated together in the pleadings, and yet the first and second defendants perform quite different functions from the third defendant.

13. For all these reasons, I find there to be no reasonable cause disclosed against the first and second defendants, and strike out the amended statement of claim against them. I also strike out the amended statement of claim against the third defendant on the grounds that no reasonable cause of action is disclosed.

14. I order that a second amended statement of claim be filed against the fourth defendant alone. For reasons given, I also give leave to the claimant at the same time to file an application to join as a defendant in this proceeding the Attorney-General acting for the Chief Valuer of Lands. Any such application is to be filed and served on the Attorney-General and is to be accompanied by a proposed statement of claim properly disclosing a cause of action.

15. I make no order as to costs.

BY THE COURT