Manata v Attorney General [2016] SBHC 204; HCSI-CC 455 of 2015 (13 December 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

CIVIL CASE NO. 455 of 2015

BETWEEN: MIRIAM TAFOA MANATA Claimant
(As Administrator of the Estate of the Late
Robert Soekeni)

AND: ATTORNEY-GENERAL Defendant
(Representing the Commissioner of Lands)

Date of Hearing: 6^th September 2016

Date of Decision: 13^th December 2016.

Mrs L. Ramo for the Claimant
Mrs F. Tagini for the Defendant

DECISION ON CHAPTER 15 CONFERENCE

Faukona PJ: A claim for judicial review was filed on 8^th September 2015. Two significant reliefs were sought apart from the alternative. They are:

	1.	An Order compelling the Commissioner of Lands to make an offer of the fixed term estate in land parcels numbers: 171-001-553 and 171-001-554 to the Claimant.
	2.	An Order declaring that all subsequent dealings between the Commissioner of Lands and any other person, in respect of land parcel nos. 171-001-553 and 171-001-554 is null and void and of no effect.
	Background facts:
2.	Sometimes in 2000, Mr Soekeni, the deceased, applied to the Commissioner of Lands for a grant of fixed term estates in Lots 582 and 583, now legally described as PE 171-001-553 and 171-001-554 situated at Auki, Malaita Province.
3.	By letter of 18th October 2000, the Commissioner of Lands informed the deceased that his application for a site in Auki had been approved and that the deceased should call in the Commissioner’s Office to sign instruction to survey form so that survey work can be carried out.
4.	Almost in similar term was a letter of 29th July 2002 in which the Commissioner of Lands himself informed the deceased that his application had been approved and a letter of offer will be issued upon completion of survey, drawing and valuation of the areas.
5.	As a result of the first letter, the deceased whom the Claimant represented as an administrator of the deceased estate, expended $6,210.00 which covered costs and survey fees. See exh. LS4 attached to the sworn statement of Lily Soekeni.
6.	On 7th November 2006, the deceased died without receiving any information as to the progress of work or offer from the Commissioner of Lands, as promised four years back. After his death his wife Mrs Soekeni pursued the interest. Subsequently, she was informed by Lands Officer in Honiara that the file could not be located.
7.	On 27th February 2015, the Claimants Solicitor wrote to the Commissioner of Lands requesting that an offer of fixed term estate be made to the Claimant. The rational perhaps was anchored on the common law principle of “legitimate expectation”.
8.	To date there was no answer to the Claimant’s Solicitor’s letter as pleaded in paragraph (11) of the statement of case. However, by paragraph (6) of the sworn statement of Mr Nao’opu (current Commissioner of Lands) filed on 28th April 2016, he deposed that any grant of PE title will be unlawful and explained that PE title can only be vested in the Commissioner of Lands.
9.	What transpired in the deposition in paragraph 8, and by reference to Exh. “NN2” which are copies of the PE estate register documents, shows the PE titles of Lots 582 and 583 were vested on the Commissioner of Lands as of 14th August 2008. The merit of the status of the titles in relation to Mr Soekeni’s application will be discussed later.
10.	Another initial issue concerns whether the Claimant as a formally appointed administrator of deceased estate is legally eligible to administer both estates under the formal appointment. I would answer in the negative. Since there was no offer made and payment of relevant fees, the titles are still in the name of the Commissioner of Lands. There was no title transferred to the deceased hence the ownership was never shifted prior to the deceased death. It would be a different scenario if an offer was made and fees were paid and that no title was yet transferred, hence, the Claimant would rely on a valid contract been concluded, which an administrative transfer and registration of the titles of the lands would be validly expected to occur. Fulfilling undertakings and obligations tantamount to finalisation of the sale of the lands which ownership is mandatory expected to be transferred. In this case that stage has yet to materialise. In my view, the Counsel for the Defendant is correct. Since ownership had never transferred to the deceased, the two properties cannot be dealt with as the estates of her father the deceased.
	The rule in Chapter 15 Conference:
11.	The conduct of pre-trial conference (PTC) is scheduled under Rule 15.3.16 of the Civil Procedure Rules (2007). As soon as practicable the PTC must be called after the Defendant had filed a defence to the claim for judicial review.
12.	At the PTC, the Court must consider four requirements set out in Rule 15.3.18 affirmatively, otherwise the Court will not hear the claim pursuant to Rule 15.3.20.
13.	By Rule 15.3.19 the Court will consider documents that had been filed and available at that stage. In determining the ground the Court must be satisfied and whether it will apply its discretion subject to Rule 15.3.21.
	Ground 1 – Arguable case:
14.	The first requirement is that the Claimant must establish that he has an arguable case. The first arguable point deduced from the pleadings concerns the original letter of application for the lands. Meantime there is none in the sworn statements, on file, annexed the letter as an exhibit. However, inference can be adopted that since 2000 when the original purported letter of application was made, the status of the lands were unknown. The question is whether in 2000 the lands had PE status or not. However, the reality is that the PE title was registered in the name of the Commissioner of Lands only on 14th August 2008, eight years after the original purported application was made to the Commissioner. It is an issue which has to be agitated before a trial judge. Once this issue is sorted out it will set a motion reflecting the true intent of the deceased as to which title in the land he wished to acquire.
15.	The second issue or arguable point relates to the principle of “legitimate expectation”, which the deceased expected after his application letter was approved, he was promised a letter of offer be issued after drawing and survey fee was done. There is no dispute that the deceased had expended money in expectation that offer will be made to him.
16.	On the other hand, the argument by the Defendant is premised on the expository of the case of Anash V AG[1]. The significant rational embedded in the case is that a public authority should act fairly in implementing its promise so long as implementation does not interfere with its statutory duty. The question the Counsel pause is whether a legitimate expectation can be created when it is clearly contrary to law and policy.
17.	There can be no doubt the Commissioner of Lands is legally obliged to administer and manage Crown Lands fairly and diligently according to the Land and Titles Act, which draws its role profile as duty bound. However, the question to pause is the claim for legitimate expectation contrary to law and policy. When was the law and policy put in place? Were both letters written by the Commissioner to the deceased were when the law and policy had already been created and in forced. If the law and policy had been in place and applicable at that time, why should the Commissioner not fairly and prudently inform the deceased that granting of PE title to an individual Solomon Islander is contrary to law and policy, and the only method approved was recommended in the case of Sumitomo V Axiom[2], a case decide in time twelve years after the Commissioner issued the last letter to the deceased.
18.	I am not deciding the issue of legitimate expectation but pointing out arguable issues which can be litigated before a trial judge. As reflected and implied by the facts this is a real arguable case which must be tried by the Court.
19.	In collaboration to the issue of “legitimate expectation” is the question as to when the Commissioner of Lands diverted its mind not to grant an offer to the deceased. In other words was there an administrative decision made by the Commissioner of Lands which needs to be reviewed. This question is very significant for a number of reasons. However, the major reason that it will assist the Court determines whether there was undue delay in filing the claim. As well, to assist the Court able to count six months period allowable for filing of the judicial review claim. The second reasons is so that the Court and the parties are fully aware of the dates the Commissioner of Lands as an authority made its decision not to make an offer to the deceased.
20.	Meantime there is nothing in evidence. So the “legitimate expectation” is on open one. Perhaps other dealings with the third party ought to be upheaved in evidence. In the absence of such a point in time must be drawn as to when did the Commissioner of lands conveyed its adverse decision contrary to its promises as can be implied. This is an arguable issue and ought to be litigated and raised at trial.
21.	With a number of arguable issues establish I am satisfied the Claimant has fulfilled Rule 15.3.18(a)
	Ground 2:
	Claimant directly affected by the subject matter:
22.	The subject of the claim is the two lands PE 171-001-553 and 171-001-554. There is no doubt the perpetual estate title is vested in the Commissioner of Lands as of 14th August 2008. In dealing with the two properties, the Commissioner by two letters promised the Claimants father (deceased) that an offer be made after drawing and survey were done. Since then no offer was made and nothing was ever done. The best the Claimant would do is filing a claim based on legitimate expectation; an expectation that her father (the deceased) would be made an offer which he had been contemplating till the date of his death in 2006.
23.	It is accepted, as an administrator of the deceased estate, the power of administration under the Wills and Probate Act is to administer the properties that are already part of the deceased’s estate and not to acquire Properties. Whilst that can be true in one sense, in the other rationality, the Claimant is truly an identity by blood as the deceased daughter. In my opinion she has the right to accomplish what her father could not achieve, though commenced by him. A claim based on legitimate expectation, is a duty highly expected to be performed in the future. In dealing with sales and acquisitions of land; are part of the processes which had been done thus secured the next of kin a direct responsibility in pursuing to fulfilment what her father (the deceased) had not accomplished during the time of his living.
24.	To deny that an expectation whose fulfilment request that a decision maker should made an unlawful decision is a misconception of the real facts of this case. If it is an unlawful activity to pursue the Commissioner to make an offer, then why the previous Commissioner of Lands by two letters accepting the deceased application. Why should he not clarify in a simple term that it is contrary to law and government policy not to offer PE title to individual Solomon Islanders, except through the process provided for under Part V Division 1 of the Land and Titles Act.
25.	I should think by the reasoning the Claimant is directly affected by the subject matter.
	Ground 3:
	Other alternative remedies to resolve the matter:
26.	The Counsel for the Defendant in her submissions suggested that other alternative remedy available to resolve the matter is by way of negotiations. The emphasis of alternative remedy entrenched in Rule 15.3 (d) can be rationalise as first option to resort to rather than coming to Court for judicial review. The Court though conferred with jurisdiction, in such case, can only be regarded as second option when all other sources have been exhausted.
27.	There is no evidence confirming the enquires made by the deceased from 2002 to 2006. However, by practical implication, any one whose application for land had been approved and had expended money for accomplishment of the processes is surely expected and eager to know more of the outcome. Though no real evidence of any enquiries done by the deceased, the facts showed that he had died in 2006 and could not able to swore a statement. Even if he did, the Commissioner of Lands would still deny, for the purpose of defending the claim.
28.	In the absence of such, Mrs Soekeni affirmed in paragraph 10 of her sworn statement that after the death of the deceased she frequented the Lands Officer both in Auki and Honiara but nothing materialised.
29.	If negotiation is a remedy available as first option, it could have been done when the wife of the deceased frequented the Land Office before this claim was filed, and even after this claim had been filed and served. It would appear the Commissioner of Lands is an unwilling party because the lands might have been allocated to a third party and nothing was left to negotiate for, which will be futile and disgraceful to do so then.
30.	The question of availability of alternative remedy is not possible as a ground to invoke the power of the Court to refuse to hear the claim. That suggestion, in my view, is not workable because the real situation had been reflected by facts are different.
	No undue delay in making the claim:
31.	I wish to reiterate more that this case is quite unique because there was no record of any physical decision made by the Commissioner of Lands, so that count for six months period would start to run. All the activities done can only be verified through implications. However, the Counsel for the Claimant seem not oppose and argue if there is indeed undue delay in making the claim. In the dwindle state of things, it would be proper to allow this ground to be argue at trial.
32.	Having considered papers and arguments required by Rule 15.3.18 I am satisfied that the Claimant has fulfilled requirements in Rule 15.3.18 (a)-(d). I must therefore allow the case to proceed to trial.
	Order:
	1.	The Claimant has fulfilled requirements in Rule 15.3.18(a) to (d).
	2.	Case to proceed to trail.
	3.	Cost in the Cause.
	The Court.

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^[1] (1994) SBHC 14
^[2] Appeal 34 of 2014