PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Solomon Islands
You are here:  PacLII >> Databases >> High Court of Solomon Islands >> 2019 >> [2019] SBHC 90

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Atkin v Attorney General [2019] SBHC 90; HCSI-CC 468 of 2016 (2 October 2019)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Atkin v Attorney General


Citation:


Date of decision:
2 October 2019


Parties:
Agnes Atkin v Attorney General


Date of hearing:
12 July 2019


Court file number(s):
468 of 2016


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Faukona J


On appeal from:


Order:
Claim for review dismissed
Cost incidental to this case is paid to the Defendant by the Claimant on standard basis.


Representation:
Mr. B Kaihuna for the Claimant
Mr. S Banuve for the Defendant


Catchwords:



Words and phrases:


Legislation cited:
Civil Procedure Rule 2007
Land and Titles Act, s3
Halsbury’s laws of England, 4th Edition 2004.


Cases cited:
Malaita Development Authority v Ganifiri [2002] SBHC 25
Nimepo v Premier of Guadalcanal Province [1996] SNHC 35
Solomon Shell Products company Ltd v commissioner of Lands
Fairafo v Commissioner of Lands [1998] SBHC 73
Azzopardi v Tasman VEB Industries Ltd [1985] 4 NSWLR 139

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 468 of 2016


AGNES ATKIN
Claimant


V


ATTORNEY GENERAL
Defendant


Date of Hearing: 12 July 2019
Date of Judgment: 2 October 2019


Mr. B Kaihuna for the Claimant
Mr. S Banuve for the Defendant

JUDGMENT

Faukona PJ: This is a claim for review under Category C pursuant to Rule 15.3.8 of the Solomon Islands Civil Procedures Rules 2007.

  1. (a) The reliefs sought in the claim were in the nature of declaratory orders that the decision made by the Permanent Secretary of Public Service on 3rd march 2016, dismissing the employment of the Claimant was unlawful, unfair and one not authorized by law.

(b) An order to quash the dismissed of the Claimant from employment on the ground of misconduct contrary to Public Service Regulation 1998.

(c) An order declaring the Claimant’s appointed as still valid and is entitled to all benefits under her contract of service commencing from the time of dismissal until retirement at the age of 55 years.

(d) As a result of unlawful dismissal in order 4, the Defendant had breached its contract of service therefore; the Claimant is entitled to compensation flowing from that breach.

(e) A mandatory order that the Defendant pay the Claimant all her entitlements and benefits, had she not been dismissed until she retires at the age of 55 years in the sum of about $ 2,205, 029.08.

(f) A mandatory order that the Defendant pay the Claimant damages to be assessed but limited to $ 5,000.00.

  1. Prior to termination the Claimant was an Assistant Commissioner of Lands (Data) working with the Department of Lands (under the Ministry of Lands, Housing and Survey. She was terminated from her employment on the 3rd March 2016 by the Permanent Secretary of Public Service whose decision was later upheld by the Public Service Commission on the ground she was guilty of misconduct in office.

Background facts

  1. On 12th November 2012 the title of a registered land in the FTE 192-010-204 was registered in the name of Solomon Shell Products Ltd. On 15th November 2012, the Commissioner of Lands issued a notice before forfeiture to Chayema International, the previous owner, via registered mail addressed to P. O. Box 1065.
  2. It would appear Chayema International was the former owner of the FTE 192-010-204, before the title was transferred to Solomon Shell Product. On 12th October 2012 consent had been granted to Chayema International to transfer the title.
  3. As reflected, the notice before forfeiture was issued to a wrong party via the wrong party’s post office box number.
  4. On 13th February 2013, Dalgro (SI) Ltd applied for the FTE 192-010-204. On 26th February 2013 the Commissioner of Lands approved Dalgro’s application.
  5. On 4th March 2013, a letter of offer for the same land was issued by the Commissioner of Lands to Shi Wei Chen and King Sau Pang.
  6. On 5th March 2013, a day after the letter of offer, an application was submitted by Shi Wei Chen and King Sau for the same FTE 192—010-204. On the same date the Commissioner of Lands wrote to the Registrar of Titles advising the Registrar that he had received several applications for the grant of FTE 192-010-204, and however affirms that Dalgro (SI) Ltd was the legitimate applicant.
  7. On 25th March the Commissioner of Lands approved the application submitted by Shi Chei and King Sau Pang, for the FTE. Shi Wei Chen and King Sau Pang paid the required fees on 10th April 2013.
  8. On 2nd May 2013, Dalgro (SI) Ltd paid the required fees disclosed in the offer for the same FTE.
  9. On 21st may 2013, an offer was made for the same FTE to Pacific Metro Ltd.
  10. On 4th June 2013 a grant was provided to Shi Wei Chen and King Sau Pang for the concern FTE.
  11. On 12th June 2014, an advice was made by Counsel Firigeni from Attorney-General’s Office to the Commissioner of lands that all the triple allocations are vitiated by mistakes.
  12. On 22nd July 2013, a report compiled by the Claimant was sent to the Permanent Secretary of Lands and Housing recommending the upholding of the allocation of FTE 192-010-204 to Shi Wei Chen and King Sau Pang.
  13. On 14th November a letter from the Attorney-General to the Commissioner of Lands that the Claimant provided explanation why she recommended the offer and to investigate why she upheld the allocation to Shi Wei Chen and King Sau Pang.
  14. On 13th April 2015, a memorandum written by Mrs. Florence Tagini addressed to the Commissioner of Lands (Nester Maelanga) admitting the Commissioner of Lands had acted unlawfully when FTE 192-010-204 was forfeited from Solomon Shell Company Ltd.
  15. On 2nd December 2015 the Claimant received a letter of surcharge which was dated 27th October 2015. On the same date the Claimant submitted her reply to the surcharge.
  16. On 18th January the 2016 the Claimant received a letter to show cause of which a response was submitted by a way of a letter with no date on it.
  17. On 3rd March 2016 the Claimant received a letter of dismissal. On 17th March the Claimant submitted her appeal. On 30th May 2016 the Claimant was terminated by a letter dated the same date.

Objective of having land registry:

  1. A key aspect of land registration has been the use of a centrally manufactured register of title to land. The essence of legislation, in respect of registered land was to produce on first registration an estate with state insured record of entitlement to legal estates in land which was to be kept up to date in respect of subsequent transactions.[1]
  2. The Land and Titles Act are regarded as containing a complete system of land registration which aims at providing reliability, simplicity and an economic process. Certainty of title is the lynchpin of registration of non-customary land in Solomon Islands.
  3. However, despite the objective, certainty and reliability of title has not been realized in the lands Registry.
  4. There has been tangible evidence militating against the objective of having a register guarantee of security of title. Common features often encounter are:
  5. In relation to state lands and interest in state land, section 3 of the Land and Titles Act vested duties upon the Commissioner of Lands to administer the act assisted by such other Officers, example, Registrar of Titles, Deputy Commissioner Lands, Surveyors etc.
  6. S.4(1) of the Act outline further duties, one of which is to advise the Minister as so requested concerning land policy in Solomon Islands.
  7. Subsection 2, the Commissioner by notice may delegate the control and management of any interest in land vested in him to any officer in the Public Service.
  8. Subsection (4) vested upon the Commissioner the power to hold and deal in interest in land for and on behalf of the Government, subject to special directions from the Minister.
  9. From the perception of law, the Commissioner has the sole duty and power to deal with interest in land, in respect of recipient of applications, approving of applications, granting of offers, allocations of lands, administering of grant instruments etc.
  10. From the backdrop environs, and the evidence that will be assessed, it is common knowledge that office of the Commissioner of Lands had ever since failed to formulate any land policy, neither establish or formulate any office standard procedure, with a central controlled management mechanism, to ensure a universal standard procedure is applied when dealing with the state lands and the interest thereof.
  11. Therefore the interest in state lands are mismanaged, occasions of double or triple allocations were prevailed, with no monitoring mechanism or central controlled check system to avoid irregularities and signs of corruption taking centre stage. What apparently occurred was, which I must take judicial notice of, those officials within the Commissioner’s office are doing their own and running the scene as though they were delegated with the authorities. In fact there was none in reality and the Commissioner was merely heading the office as a figure head unaware of what exactly was going around him. As a result a number of Commissioners not one time, two times or thrice, but almost now and again were terminated from post.
  12. One time instance is in the case of Fairafo Ltd v COL and Martin Kealoe[2] which the Court stated,
  13. Later the Deputy Chief Justice had to pronounce in the case of Malaita Development Authority V Marilyn Ganifiri and Others[3], which he stated;

This Case:

  1. The land being the subject of this case was previously dealt with by this Court in CC 315 of 2014. The Court found that the forfeiture process of PN192-010-204 against Solomon Shell Product Ltd amount to mistake and the title was rectified in the name of Solomon Shell Product Ltd. All subsequent allocations were declared null and void.
  2. Other officers within the Commissioner’s office who involved one way or another had been dealt with as well. Now is the case of the Claimant claiming for quashing order to quash the decision by the Permanent Secretary and Public Service Commission terminating the service of her employment with the Public Service?

Breaches of rights to natural justice:

  1. There are two issues comprise of the first point. The action taken in respect of the Permanent Secretary and the Public Service Commission tantamount to failure to act fairly. In other words they do not comply with the procedural impropriety. The Claimant alleges that both offices did not follow the procedures during disciplinary inquiry before dismissing the Claimant from employment.
  2. The focus of argument is that those two offices had failed to properly investigate the Claimant’s case which was labeled as serious case of misconduct. Such nature of cases is dealt with by Regulation 49 of Public Service Commission Regulation 1998, which require a Board of Inquiry be appointed to carry out investigations.
  3. I have read the letter written by the Permanent Secretary of Public Service of 27th November 2015, containing the sur–surcharge. In the letter the Permanent Secretary had made reference to sections 2.1 and 3.1 of the Code of Conduct, and as read in conjunction with Regulations 44 of the Public Service Commission Regulations 1998. Having perused the authorities thoroughly and the letter, there was no mention that the offence the Claimant committed was an offence of serious misconduct. However, a hint can be noted in Regulation 44 when the provision mention about minor acts of misconduct such as lateness, idleness or indiscipline. From that exposition I can concede that the nature of misconduct alleged to have been committed by the Claimant, did not fall under any of those categories expounded in Regulation 44 as minor acts of misconduct. It must therefore be in the nature of higher misconduct than a minor act.
  4. If such conduct can be noted as serious misconduct, of course Regulation 49 provides for the commencement of process to apply in dealing with such misconduct.
  5. I have also read the letter to show cause on 18th January 2015 and the letter of dismissal on 3rd March 2016. They did not directly implicate the offence of serious misconduct but had narratively accorded an act of misconduct. In any event Regulation 44 set out a minimum standard of act of misconduct, and anything beyond should, of course, be treated as serious misconduct.
  6. The argument that since the claimant had committed a serious act of misconduct the process should commence by appointing a board of inquiring. The flaw in that argument is the appointment of a board of enquiry is not mandatory. It may not necessary as well if the Defendants are satisfied with the evidence available before them. In this case the Defendants were satisfied of the evidence which guarantee they could foot a decision; therefore the appointment of a board was not necessary.
  7. The ground for breach of natural justice premised on the fact that the memorandum of 5th April 2013, written by the Commissioner of Lands, Mr S. Dunge, affirming Dalgro’s application was in order and should be considered to be registered. It was alleged no copy of that memorandum was disclosed during disciplinary hearing.
  8. That entails, in the absence of that memo the action taken by the Claimant in her recommendations was valid, a simple irrational in her determination. That may reflect a shortfall in consideration in order to have sufficient evidence available.
  9. It does not end there, the major evidence that she overlooked was the table she drawn in her minute. She would not have mistaken that Shi Wei Chen and King Suu were offered the land on 4th March 2013 by Mr Dunge the Commissioner of Lands. That was done a day before the date the application was filed which was 5th March 2013. Something of that sort could not have happened, in fact was a mischief. No-one should be offered land before application for that land was submitted. It would definitely promote mischief in the office of the Commissioner of Lands in dealing with state lands.
  10. The Claimant should have noted whether Mr Dunge had made an error in typing. If she noted the irregularity, a diligent officer should have made inquiries and where necessary the error ought to be rectified. However nothing was done in this case and the action taken by the Clamant was subject to interrogation. The question whether she failed to note, identify or deliberate, before drawing recommendation is a question that goes down to the crevices of the Claimant’s action.
  11. If the Claimant should diligently check the date she should able to note the irregularities in Mr Shi and King’s date of application and date of offer. She was quite hastening or deliberate to conclude, than focusing on payment of fees paid by Dalgro alone. However, she failed to note that the offer was made first in time before Shi and King filed their application for the land.
  12. In any event it did not matter whether Dalgro paid the required fees later in time. The reality was its application and the process resumed to was perfect and sound without any mischief or irregularity.
  13. The reality is that no FTE can be offered twice to two different applicants at the same time. It is public knowledge that Government land is scarce in this country and everyone has to push to be allocated one. Neverthe- less the process must be complied with as a pertinent requirement.
  14. For instance, where an offer was granted there were certain premium fees attached to it and a date for the payment of those fees. What is expected is that should the applicant failed to pay those fees on the date for the payment, it is expected the offer can be withdrawn formally before any consideration is made to the next applicant for approval and issuant of an offer. The process is simple. There could be more than one application, but for simplicity purposes the first in time should be dealt with first before the rest.
  15. In the current case, the claimant’s involvement is subject to question, the entire episode led to one conclusion that is confusion. The Claimant later realized her mistake and termed it as minor act of misconduct and should deserve lesser penalty.
  16. In another approach, on the date of the minute (22nd July 2013) was the Claimant performing what was prescribed in her job description, if not, was she acting as the Commissioner of Lands at that time, or was she delegated that function to perform?
  17. If nothing of the above empowered her to perform that function, then she might be perceived as venturing into performing function outside of her job description, which may render suspicion.
  18. Any assumptive effort cannot be drawn from a vacuum base, but there is evidence that the minutes written by the Claimant was based on documents given to her by an outsider which she did not mention any name in her sworn statement. Therefore the likelihood of foreign influence was probable than not, may I infer.
  19. It is not an issue that the Claimant has no function in receiving applications and approving it, or to the extent of issuing letter of offer and sign grant instruments. However the question remains to be answered is, was by writing the minute as she did, one of her duties prescribe in her job description, or a delegated function, or a duty that attached to acting on a position. If the answer is no, then the minute written was to militate registration in the names of Mr Chi and King and was done for the benefit of those two gentlemen. Conclusively that could be rated as error of mistake.
  20. The legal advice given by Attorney-General advising the Commissioner of Lands that the initial forfeiture was unlawful. If that advice was noted and properly filed in an effective system the Claimant could have taken note of and digested. Hence what she did would not have been done. Therefore who should be blamed, the Commissioner of Lands himself and or all the staff as well. Everyone was running their own show, as rightly reflected in the third allocation which was done by Abel Viuru. Unfortunately there was no record of application, no record of approval but an offer was made.
  21. On this point it is not necessary for the PS/PSC to appoint a Board of enquiry, it is not mandatory. The Defendants, as it sound, were satisfied with the evidence available. Therefore they had properly exercised their powers set out under the PSC Regulations and S.116 (1) of the Constitution as well.

None disclosure of materials:

  1. It has already been decided whether the Claimant’s case is serious or not, and the fact that it is not mandatory to appoint a Board of Enquiry. The Defendants had decided to the contrary due to evidence available was sufficient. In that instance certain documents may not be relevant. Therefore Regulation 50 is not necessary.
  2. The Claimant is attesting that without relevant documents being available the Defendant could not have made a fair decision dismissing her. Therefore fairness cannot be achieved where documents considered were limited and one sided.
  3. One the other hand the Defendants argue that the memo of 5th April 2017 was sighted by the Attorney-General and Mrs Tagini (Senior Counsel) before it went missing.
  4. The Attorney-General in its memorandum in response to the Commissioner’s memorandum to the Registrar of Titles dated 5th April 2013, outlined the fact that the Commissioner was aware of the error he committed by approving the application by Shi Wei Chen and King Sui, of which a letter of offer was issued on 4th March 2013, and an application was filed on 5th March 2013; an irregularity or mischief which was not be rectified.
  5. The same memo of 5th April 2013 was referred to by Mrs Tagini in her memo of 13th April 2015 addressed to the Secretary of the Land Board, and copied to the attention of Mrs Nester Maelanga.
  6. It would appear the memo of 5th April 2013 by the Commissioner of Lands, of which its content was well versed by the office of the Attorney-General, was living evidence.
  7. On the sworn statement of former Commissioner of lands, Mr Dunge, filed on 28th November 2017, in which on paragraph 10 affirmed that he wrote the letter of 5th April 2013. His reason is that he expected Dalgro to make payment on 2nd May 2013. The flaw in his rationale is that it was unprocedural to issue two offers almost at the same time. Only one is required at one material time; should the Applicant failed to pay on date required, then the offer must be withdrawn officially and another offer issued to another Applicant.
  8. The Claimant said she did not see the letter of 5th April 2013, written by the Commissioner of Lands. Whether that is true or not, the fact remains the same, the Office of the Commissioner of Lands had failed drastically to manage and kept records of all the transactions when dealing with state lands. If records were kept in a well programmed system and file, in a secured manner, she should have cited the letter. The Claimant is attempting to convince the Court to belief the kind of filing system that the Lands office adopted which she was part of it, as a senior officer, reflected the system was taken over by utter manipulation for some ones interest.
  9. She must be aware that technology had increased to new heights and systems are much better than twenty years ago. Now there could be no floating documents so that an officer could excuse that she did not see it. Use of computer and software had been an advantage in keeping and retrieving and filing of documents, hence it is unreasonable to state that she did not see the letter.
  10. It ought to be noted that once a document is in the possession of the Attorney-General, for sure the Public Service and Public Service Commission would definitely acquire when dealing with any such allegation against a Public Officer who was suspected of committing misconduct in office. In normal circumstances when dealing with such an officer the PS and Public Service Commission would sought advice from the Attorney General’s Office. To assume that the document was not presented with the PS and the PSC before determination was an assumptive effort. Just because it was not disclosed at the disclosure stage would indicate such documents were not in possession that is a mere presumption. This also applies to the reports formulated by Attorney-General’s Office concerning Civil Case NO: 315 of 2014.
  11. It may be true the Claimant was not the final determinant as to which applicant is registered. At that time the minute was written the only issue left was for application to be registered. By recommending Shi and King, based on fluid and erroneous record, is exactly militating to the Registrar to register the land in the names of the two Asians. At the end thereof the Registrar did. Was that recommendation failed to have any impact on the registration. Was that recommendation not marred by the fact the documents brought to the attention of the Claimant was brought by an outsider (unknown to the Claimant); would that not provided a hint that something irregular was going on. In normal circumstances such documents should be transferred from one officer to another by an officer from the Lands Department and no one else from general public. It is sad the Claimant had affirmed.
  12. Therefore, two reports from the Attorney-General’s Office dated 14th November and 2014 and 14th April 2015, together with the memorandum of 5th April 2013 were all undoubtedly before the Permanent Secretary and the Public Service Commission when they determined the fate of the Claimant. It can be in a form of documentation or in a form of formal information. In my opinion the documents had provided evidence sufficient to weigh on the balance of probability, which the Authority took into account and finally dismissed the Claimant from her employment. The determination is fair based on those evidence believed to be in the possession of the Permanent Secretary and the Public Service Commission. And also evidence surrounding the action taken by the Claimant. There is no unfairness and injustice done, and there is no reason to belief that the tribunal was applying the wrong test. Therefore the ratio in the Case of Azzopardi v Tasman VEB Industries Ltd is not applicable in the circumstances of this case. In fact the Claimant was accorded a fair hearing by the Authorities.

Whether the termination was hash:

  1. On this particular issue the Claimant relies on Regulation 60, which requires (PS/PSC) must be satisfied on the nature of misconduct. Whether by rewarding Mr Shi and Mr King to be registered rather than Dalgro (SI) Limited, is applying the right test in the circumstances.
  2. The Claimant’s personal perception as to the probative value of her case is trivial in nature and not serious. With the support by the sworn statement of Mr Dunge filed on 28th November 2017, the Claimant was not the ultimate determinant in approval, issuant of offers, allocations and signing of grants. I would agree with that perception but the fundamental which both had failed to perceive was that the recommendation by the Claimant was in conflict with the Commissioners intellectual conclusion out from the turmoil situation.
  3. There can be no excuse that the Commissioner’s letter was not cited. The euphoria is simple; the recommendation was made following documents presented to her by someone outside, whose identity was known until today. There can be no justification for what she did. Those materials were noted by the authority and the assessment concluded was proper one which deserved the dismissal.
  4. Alternatively none citation of the memo of 5th April 2013 could be rather a deliberate choice to ignore. No one is to be blamed but the Office of Commissioner, the office the Claimant worked for, for twenty seven (27) years. However, the common feature of that organization is that it failed drastically to organize and have a proper effective filing system where all transaction are monitored and doubled checked by the Commission to ensure and avoid mischief allocations.
  5. The fact that she had a stream of clean record in office cannot sustain in an office environment succumbed by suspicious dealings, which are prevailing instances in double and triple allocations, which is the basis of this case. At the end thereof the Commission had finally satisfied under Regulation 60, hence exercised its powers according to the evidence which support the nature of misconduct.
  6. Therefore the decision to dismiss was not harsh or oppressive. Other remedies available under Regulation 58 in my view, does not match the nature of offending by an Officer who participated with others, in the same office, though at different times, who had received similar consequences. Therefore the Claimant’s dismissal is fair, not wrong in law and was lawful.

Is Dalgro (SI) Limited’s application legitimate?

75. The question to pause, is Dalgro’s application among the triple allocation legitimate? From documents and the date the Claimant produced, I would say “yes”.
76. Firstly, I would reiterate that invitation for submissions of application can be made to the whole world, but does not apply to an offer. An offer can only be made to one person or an incorporate body at one time. The ideology of issuant of one offer to one person is not the practice entertained by the Office of the Commissioner of Lands. As a result allocation are doubled or in triplicate. This is the fundamental which could have been forfeited and resumed to a more organized and meritable system easy to manage and monitor.
77. At the initial stage double offer was already a mistake. I have quantified that proper process was to issue an offer to one person which a date line to pay the pre-requisite fees is well clarified. Should that person failed then the offer is withdrawn and can be issued to another person. If we are to be consistent with principles of offer and acceptance in the law of contact that should be the way it works. Not only that, but it is simple effective to manage administration of state land. But that was not the practice adopted by COL’s Office, which normally ends up in confusion complication and for the benefit of someone.
78. It is not the fact that Dalgro failed to pay the pre-requisite fees on time, and then automatically switched to Shi and King. The principle under the law of contract is best to abide with in my view. If Dalgro was late in payment of fees why its fees were paid later was accepted and receipted.
79. I have pointed out earlier the irregularity in the dates of application and offer by Shi and King. That irregularity was never remedied by any of the documents filed in this Court. As they were, they were accepted. That supposes to be the first initial point to realized and then transmission of documents to Claimant from an outsider, what does that mean, is it not irregular? Yes it was. Hence where was the valid recommendation coming from nowhere?
80. In the case of Solomon Shell Products Ltd v COL, Shi Wei Chen and King Sau Pang[4], which the Court stated,

“Support ... that here was a scheme in place to affect such a mistake to the detriment of the Claimant. When I look at its outcome as it affected employees of the Commissioner of Lands it may be said that they acts were fraudulent”.

81. The above case concerned the same land and the same parties excluding the Claimant for rectification of the title. The title was in fact rectified following the decision of above case.
82. To rely on the memo as not being disclosed, hence inappropriated the decision by the authorities, is a short coming on the part of the Claimant. It ought to be noted that the litigating parties legitimately is the Office of the Commissioner of lands and the Attorney General. It is a dispute between two government’s agents. Apparently it explicitly shows that even the former Commissioner of Lands filed sworn statement supporting the Claimants actions.
83. The significant effect that may negative the disclosure of the memo is that, it was never been a memo written by the Office of the Attorney-General. It was a memo written by the Commissioner of Lands, and of course the memo as expected to exist in that office.
84. The Office of the Attorney-General, however, cited such memo, hence compiled by filing a report to the Commissioner, as a legal advice of the persistent of the irregularities. I have mentioned earlier that being not citing the memo, the PS and PSC would not have been made aware of the commissioner’s intention, hence made the decision as they thought appropriate.
85. None disclosure of that memo, after request, has no basis, knowing the source from which it came from was with the Commissioner of Lands Office which supported the Claimant’s case. The Counsel or the Claimant cannot seek disclosure from the Attorney-General that would be prejudicial to its case which it may have the right to refuse. The crux of the memo is that its content had been well versed by the PS and PSC at the consideration stage during the entire disciplinary proceedings.
86. It is further argued that any recommendation to uphold allocation to Dalgro would make no difference. That is a very cheap argument without any basis at all.
87. The legal aspect of the Claimant’s recommendation had led to the registration of the estate in the names of Mr Shi and King. The recommendation had run contrary to the Commissioner’s intention in his memo. The recommendation had nothing to do with any offer, allocation and preparation of grant documents. Importantly, is the minute drawn by the Claimant had a contrary effect on the Commissioner’s intention in the memo. Well, the Claimant could argue it’s up to the Registrar. The Registrar had two options to make. He had accepted the option the minute supported against Dalgro which followed the sequence of steps. The former Registrar had also filed a sworn statement on 1st October 2016 in support of the claimant’s case denying the memo. An assertion contrary to the former Commissioner Mr Dunge that he indeed wrote the memo and its existence was not denied.
88. The irregularities only realized after the High Court had made its decision in CC No. 315 of 2014. Before that, the forfeiture process was thought to be correct and in order, unfortunately not. The similar assertion can be taken that because the forfeiture process was correct the registration was correct. Realizing now that the whole processes were in a mess, the blame had to be directed to the initial error made in the forfeiture processes.
89. It ought to be noted that decision had also affected the registration and how the two gentlemen were registered as owners of the estate. It therefore affected both processes in the forfeiture and the processes led to registration. Registration was done on the recommendation made by the Claimant hence, must be liable for any consequence due. She cannot rely on the overall failure in the forfeiture process. More specifically her involvement directly affected the registration of Applicants whose application was marred by evidence of irregularity. Therefore it would be appropriate to estop the Claimant from blaming the forfeiture process. The role she played by formulating recommendation was part and partial which hatched into the subsequent registration in the names of two Applicants.

Has Claimant entitled to any damages:

90. If the Claimant is given time to revise the crevices of my reasoning on the issues, undoubtedly she would sense that the ratio for decision do not support her case at all. She could have realized there is no basis to challenge her termination and seek entitlement for damages.
91. The action by the Claimant to opt for Mr Shi and King (foreign individuals) who acted defiantly with the sequential requirements was an absolute defiant of all logical sense. In particular when failed to rectify and take note on the inconsistency and the irregularity on dates in relation to application, approval and offer to both Applicants.
92. Not only that but she acted on documents brought to her by an alien, an outsider, who was not identified until now.
93. Therefore, what matters most is not so much on a profound service for 27 years, but the administration of state land by the office of the Commissioner of Lands in terms of transparency and accountability, quality of service, good communication regarding records, data and keeping updates of such activities.
94. Furthermore, and worst still, the office had failed for years to formulate a land management policy to ensure allocations of land to applicants are fair. And to keep filing and data system manageable with proper check system to avoid double or triple allocations.
95. With all those grounds the Claimant’s claim must be dismissed. Therefore she cannot entitle for damages and even to rely on the case of Nimepo v Premier of Guadalcanal Province[5] for support.
96. I noted when one has been dismissed from employment, of course it creates unemployment. However I have to exercising my powers to balance out the probability of truth, I therefore uphold the decisions by the Permanent Secretary and the Public Service Commission. Whatever feeling the Claimant had experienced after dismissal is a consequence of unintelligence and lack of diligent decision making. I must therefore dismiss the Claimant’s claim for review of the Executive determinations with all the reliefs sought is dismissed as well with costs.

Orders:

  1. Claim for review dismissed.
  2. Cost incidental to this case is paid to the Defendant by the Claimant on standard basis.

The Court.

[1] Para 804, Halsbury’s laws of England, 4th Edition 2004.
[2] [1998] SBHC 73 2007.
[3] [2002] SBHC 5.
[4] Civil Case No. 315 of 2014
[5] [1996] SNHC 35, HC – CC 379 of 1995 (10 July 1996).

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2019/90.html