Pati v Westerlund [2000] WSSC 30 (23 August 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

TULAI TAULAPAPA PATI
of Vaitele Housewife.
Plaintiff

AND:

CHARLIE WESTERLUND
of Palisi, Businessman.
Defendant

AND:

DIRECTOR OF LANDS, SURVEY AND ENVIRONMENT
sued for and on behalf of the Land Board pursuant to Section 13 of the Lands & Environment Act 1989.
Third Party

Counsel: K M Sapolu for Plaintiff
P A Fepuleai and T Malifa for Defendant
P L Tanielu for Third Party

Judgment: 23 August 2000.

JUDGMENT OF SAPOLU CJ

I wish to express my regrets to the parties in this case because of the delay in completing this judgment and have it delivered. But the novelty and complexity of some of the issues raised by counsel in this case required much legal research and thoughtful consideration on my part on top of other work of the Court. Not all the legal research carried out by a Judge as he finds his way towards what he considers to be the correct legal solution to a case will necessarily appear in the judgment that is delivered. However, I do not wish to dwell on the point and thereby further delay this judgment.

The plaintiff is a businesswoman. She is the wife of the former Minister of Lands, Survey and Environment (Minister of Lands) who was also the chairman of the Land Board by virtue of his office as Minister of Lands. The defendant is a businessman and holds a Bachelor of Science degree. The third party is the Director of Lands, Survey and Environment (Director of Lands) cited on behalf of the Land Board which is a statutory body that was established under the Land Ordinance 1959 and continued under the provisions of the Lands, Survey and Environment Act 1989. There was no dispute as to the standing of the Director of Lands to be cited as third party in these proceedings. I will therefore proceed on the basis that all counsel accept that the Director of Lands may be cited as third party on behalf of the Land Board in these proceedings.

The Land Board is vested with statutory powers for the administration, management, development, alienation, settlement and protection of government land. The membership of the Land Board comprises of the Minister of Lands as chairman, the Director of Lands as deputy chairman and nine other members including the Attorney-General. Under its statutory powers of alienation, the Land Board may issue leases of government land. Such leases are to be executed by the Minister of Lands on behalf of the Land Board.

Under Article 104 of the Constitution all land lying below the line of high water mark is public land. The expression “high water mark” is defined to mean the line of median high tide between the spring and neap tides. There was no dispute amongst counsel that the sea area which had been reclaimed by the defendant and forms the subject of these proceedings is public land by virtue of Article 104 of the Constitution. There was also no dispute amongst counsel that the same land is government land under the provisions of the Lands, Survey and Environment Act 1989 and thus comes under the jurisdiction of the Land Board.

In order to facilitate understanding of the issues involved in this case and hopefully to place them in some clear perspective, I have decided to set out the history of the present dispute in some detail.

History

About August 1993 the defendant purchased a section of land at Vaitele on the seaward side of the West Coast Road. The land adjoins the sea on the northern side. Soon afterwards he started reclamation of the adjoining sea area without obtaining or seeking to obtain any permit from the Land Board. In his evidence the defendant said that it was his understanding when he purchased the land that he could reclaim a quarter of an acre of the sea area adjoining his dry land without first obtaining a permit from the Land Board. I find it difficult to believe this evidence given that the defendant is a businessman and the holder of a Bachelor of Science degree. He should have known that the sea belongs to the Government and a permit from the Land Board was required before he could reclaim the sea. The defendant continued to reclaim the adjacent sea area well into 1994 in excess of a quarter acre. At all material times the Land Board was not aware of the defendant’s reclamation (except when there were earlier complaints from Mr William Keil of Vaigaga and the people of Vaiusu to which I will refer again later) until it received a letter dated 14 June 1994 from the Alii and Faipule of the village of Vaitele complaining that the defendant’s reclamation was muddying the whole foreshore of their village so that they could not carry out their usual fishing activities. Fish and other seafood were being affected.

According to the evidence of the secretary to the Land Board, a subcommittee of the Board then visited the defendant’s reclamation for the purpose of inspecting the complaint from the Alii and Faipule of Vaitele. The subcommittee met with the defendant and told him to come and discuss matters with the Land Board to which the defendant replied he would come and bring an application for a permit to reclaim the sea area. The defendant did not come to the Land Board or send an application for a permit as he had told the subcommittee of the Land Board.

Then on 1 July 1994 the secretary to the Land Board wrote to the defendant. That letter is in Samoan but it would be necessary to set out its translation into English by the Court in full:

01 July 1994

“Mr Charles Westerlund

Vaitele/Taufusi

Sir,

Reclamation at Vaitele

It has been reported again that you are still continuing with your reclamation at Vaitele without any regard to the letter and directives given to you before to cease your reclamation “and come to the Office to discuss this matter.

What you should be aware of, Sir, is that it is an offence to reclaim the sea without permission from the Land Board which has the supervision over such government land.

Apart from that, it has been reported by some of the Alii and Faipule of Vaitele that the whole sea has been muddied and fish and seafood have been affected for that part of the country.

Please cease your reclamation forthwith and come to the Office of the Land, Survey and Environment Department for a discussion of this matter.

If you do not heed this letter, the matter would be referred to the law.

With respect

Maiava Nafatali

Secretary to the Land Board.”

This letter clearly suggests that there had been an earlier letter and directives from the Land Board to the defendant to cease his reclamation and to discuss his reclamation with the Land Board but the defendant did nothing. Then in August the secretary to the Land Board received an application dated 5 August 1994 from the defendant to reclaim part of the sea adjoining his land at Vaitele. This was the first application from the defendant for a permit to reclaim the sea adjoining his dry land since he started reclamation in 1993. No area of the sea to be reclaimed was specified. The Land Board approved the defendant’s application on the conditions that only a quarter of an acre of the sea was to be reclaimed, the rental to be $20 per annum, and the costs of surveying the reclaimed area which was to be carried out by the Lands, Survey and Environment Department were to be paid by the defendant. When the survey was carried out it was found that the sea area already reclaimed by the defendant was more than a quarter of an acre and was close to half an acre.

Then on 20 September 1994 the Alii and Faipule of Vaitele again complained to the Land Board that the defendant was still carrying out his reclamation causing more damage to the foreshore of neighbouring dry lands. Apparently the defendant’s reclamation work at that stage was still continuing well beyond the quarter acre that was approved by the Land Board. By letter dated 20 September 1994 the secretary to the Land Board wrote to the defendant again. The text of that letter is as follows:

20 September 1994

Mr Charles Westerlund

VAITELE

Dear Sir

FORESHORE RECLAMATION AT VAITELE

Representatives of Alii and Faipule of Vaitele called into our office today 20 September 1994 reporting that you are still carrying out reclamation work at Vaitele contrary to our previous instructions and your assurance to stop same.

Further it is alleged that the new addition to your reclamation has exceeded the eastern and western boundaries of your freehold property on dry land thus denying access to the sea of the adjoining families.

Please treat this as final warning to stop any further reclamation work. Should you choose to ignore it, then legal proceedings will be instigated against you.

Yours faithfully

Maiava Nafatali

Secretary Land Board

cc: Minister of Lands, Survey & Environment

Director of Lands, Survey & Environment

Then upon receiving further reports that the defendant was still continuing with his reclamation, the secretary to the Land Board wrote to the defendant again on 5 December 1994. The text of that letter is also set out here as follows:

05 December 1994

Mr Charles Westerlund

VAITELE

Dear Sir

It has been reported that you are still carrying out reclamation work at Vaitele despite our repeated warning to stop same.

Please you must stop any further reclamation work now as the Alii and Faipule of Vaitele have lodged a complaint against it. Further, you have already exceeded the area legally allowable for any reclamation which is quarter (¼) of an acre.

You may also recall that our office has already surveyed about half (½) an acre of your reclamation and has accordingly assessed the cost of the permit and rent based on that area.

Should you decide to ignore the final warning then the matter will be taken up with the Police Department and legal proceedings will be instigated against you.

Yours faithfully

Maiava Nafatali

SECRETARY LAND BOARD

Notwithstanding this letter of 5 December 1994, the defendant continued with his reclamation. When it was reported to the Land Board that the reclamation had exceeded half an acre of the sea as already approved, the Land Board requested the Attorney-General to write to the defendant. The text of the Attorney General’s letter of 11 August 1995 is set out here in full:

11 August 1995

Mr Charles Westerlund

APIA

re: LAND RECLAMATION AT VAITELE

My Office has been notified of your continuing land reclamation which has far exceeded the area permitted to you for this purpose by Government.

You have been given prior warning by the Department of Lands, Survey and Environment to cease this process immediately as you are already in clear breach of the initial agreement with Government on the matter.

Please be advised that we are now poised to initiate proceedings against yourself if further evidence is received of your non-compliance with the notices issued to cease your reclamation work.

You are further advised that as you have breached the conditions of the licence already granted you, the Government is considering revoking that licence. Moreover the Government reserves the right to refuse the issuing of a licence in your favour in respect of the areas you have unlawfully reclaimed.

Tupa’i Se Apa

ATTORNEY GENERAL

cc: The Hon. Minister of Lands, Survey and Environment

The Director, Lands, Survey and Environment

pp:mst

However, the defendant continued with his reclamation in spite of the letter from the Attorney-General.

Then in 1995 the plaintiff’s husband who was then the Minister of Lands and chairman of the Land Board purchased a section of land which adjoins on the western side the dry land owned by the defendant and it used to adjoin part of the sea on the northern side. The land purchased by the plaintiff’s husband was from Aroma Collins the same vendor from whom the defendant had purchased his section of land to the eastern side. So the land belonging to the plaintiff’s husband adjoins the land belonging to the defendant with the land belonging to the plaintiff’s husband situated on the western side and the land belonging to the defendant situated on the eastern side. To the northern and western side of the land belonging to the plaintiff’s husband was part of a Government reserve called the Esplanade Reserve. The position of this Government reserve is clear from one of plans produced for the third party.

The exact date in 1995 that the plaintiff’s husband purchased his land is not clear. But in August that year, which was soon after her husband purchased his land, the plaintiff, her husband and their family lived on the land and started operating a bakery and general grocery store under the name of the plaintiff. The defendant on the other hand has a coconut cream factory on his land.

Originally the lands owned by the plaintiff’s husband and the defendant both adjoin the sea on the northern side. Undoubtedly the plaintiff and her husband on one hand and the defendant on the other would like to maintain direct access to the sea adjoining their respective lands on the northern side because of the sea view and for possible expansion of their respective businesses by reclamation of the adjoining sea should that become necessary in the future. What has happened and is the cause of this dispute is that the defendant wants the whole reclaimed sea area adjoining not only his dry land but that of the plaintiff’s husband on the northern side to be leased to him by the Land Board for expansion of his business whilst the plaintiff wants the Land Board to lease to her for expansion of her business that part of the reclaimed sea area adjoining her husband’s land on the northern side.

From the plaintiff’s evidence, it appears that when her husband purchased his land from Aroma Collins part of the adjoining sea area to the north had already being reclaimed. The evidence is somewhat vague whether the whole of that particular reclamation was done by the defendant or whether part of it was done by Aroma Collins.. After the plaintiff’s husband had purchased and lived on his land in 1995, the defendant, according to his own evidence, was still continuing with his reclamation which at that time had far exceeded the total area of half an acre already approved to him by the Land Board as shown in the letter dated 5 December 1994 from the secretary to the Land Board. That further reclamation by the defendant was carried out in spite of further stop notices from the Land Board. The matter was discussed at the Land Board’s meeting of 26 September 1995. It was resolved at that meeting that the secretary to the Land Board would write to the defendant again about his reclamation which was still continuing regardless of previous decisions of the Board. It was also resolved that the defendant was to be informed that the Land Board would visit the reclamation and survey the half acre already approved to the defendant. The evidence from the Land Board’s secretary was that he wrote a letter to the defendant regarding the Board’s resolutions.

Following the letter from the Land Board’s secretary, the Land Board’s subcommittee and its secretary visited the reclamation and they found that the reclamation had in fact exceeded half an acre and the defendant was still continuing with his reclamation. The Land Board’s secretary testified that he again told the defendant to cease further reclamation. However, it appears from the defendant’s evidence that he carried on with his reclamation after the Land Board’s subcommittee left.

Towards the end of 1995 the defendant made another application to the Land Board through his then solicitor for a permit to carry out further reclamation. The defendant said that his solicitor was meant to apply for a permit to reclaim an acre of the sea in addition to the half acre he had already reclaimed and for which approval had already been given. At that time the defendant’s reclamation had gone well beyond the half acre that the Land Board had already approved to him. To the defendant’s understanding the additional acre for which his then solicitor applied was approved by the Land Board. I find no real basis for the defendant’s understanding as stated and I reject it.

The defendant’s understanding was also not in accordance with the understanding of the Land Board. The minutes of the Land Board meeting of 8 December 1995 in which the application by the defendant’s then solicitor was discussed showed that the application was for approval by the Land Board of an additional sea area to make up to one acre the defendant’s total reclamation and not an additional one acre to the half acre the Land Board had already approved to the defendant. The Land Board approved the application from the defendant’s solicitor and decided that the defendant should not do any reclamation beyond that one acre. However the defendant again continued to reclaim beyond that one acre.

Then on 11 January 1996 the Land Board held a special meeting. One of the items on the agenda for discussion at that meeting was an application by the plaintiff to lease the reclaimed land which adjoins her husband’s land on the northern boundary. The plaintiff’s husband as the then Minister of Lands was chairman of that meeting. According to the evidence of the Financial Secretary and the Deputy Director of Agriculture who were present at that meeting as members of the Land Board no written application from the plaintiff was placed before the Land Board at that meeting even though her application, which must have been conveyed orally to the meeting, was discussed with her husband, the Minister of Lands, present as chairman. The Deputy Director of Agriculture also said in his evidence that the chairman during the discussion expressed his commitment to the matter, which must mean the matter relating to the plaintiff’s application. Some members raised concern about possible conflict of interest as the chairman was presiding at the discussion of the plaintiff’s application. The chairman then left the meeting when the Board was to make its decision.

According to the Financial Secretary some members of the Land Board felt the plaintiff and the defendant should refer the matter to the Court as the chairman had advised the Land Board that there had been previous discussions between himself, the defendant and the plaintiff. The Deputy Director of Agriculture said that several opinions were expressed that the matter should be dealt with outside of the Land Board because of the conflict of interest situation. The Land Board then decided to refer the matter to the lawyers for a legal opinion. From the minutes of that Land Board meeting which were produced in evidence, it appears that the Land Board decided to defer the plaintiff’s application for an opinion of the lawyers out of caution and for the protection of the chairman as the application was from his wife, the plaintiff. It also appears from the evidence that the lawyers the Land Board had in mind were the lawyers of the Attorney-General’s Office.

At the next meeting of the Land Board on 23 January 1996, a written application dated 22 January 1996 from the plaintiff was before the Board. The plaintiff’s application was to lease only part of the reclaimed land which adjoins her husband’s land on the northern side. The application says that portion of the reclaimed land is separate from the one acre of reclaimed land already approved to the defendant. The Financial Secretary and Deputy Director of Agriculture did not attend that meeting but it is not clear whether they sent representatives to that meeting. According to the evidence of the Land Board’s secretary the chairman of the Land Board left the meeting on 23 January before the plaintiff’s application was discussed and the Director of Lands who is the vice chairman of the Board then presided as chairman. In the discussion which followed the state solicitor who was representing the Attorney-General as a member of the Land Board advised the Board that it could grant a lease pursuant to the plaintiff’s application as the Land Board had the power to grant the lease sought. The Land Board then resolved to approve a lease to the plaintiff of half an acre of the reclaimed land mentioned in her application.

Then on 27 March 1996, the Office of the Attorney-General again wrote to the defendant, this time, advising the defendant to cease all activities on that part of the reclaimed land as it had been leased to the plaintiff. Then by letter dated 22 May 1996, the solicitor for the plaintiff wrote to the defendant to refrain from entering upon the land again. About the same date the plaintiff erected a fence on the leased land but it was damaged and removed by the defendant and his workers. During the Court’s inspection of the leased land after the hearing of this matter, the defendant was still occupying the leased land and had a minor structure on it.

Proceedings before the Court

The plaintiff has brought an action in tort for trespass to land seeking damages against the defendant and a permanent injunction to restrain the defendant, his servants and agents from re-entering the disputed land. In reply, the defendant raised a number of defences which are directed mainly against the Land Board cited as third party in the name of the Director of Lands. These defences are that the disputed land was reclaimed by the defendant who had made it known to the Land Board which approved it; secondly, it is the Land Board’s policy concerning reclamation of the sea that only owners of freehold land adjacent thereto may apply for reclamation; thirdly, the Land Board had acted in a discriminatory fashion in this case contrary to Article 15 of the Constitution; fourthly, the plaintiff had a legitimate expectation that the disputed land was to be leased to him by the Land Board; and fifthly, the plaintiff’s husband is the former Minister of Lands who was the chairman of the Land Board when it decided to lease the disputed land to the plaintiff. These defences, some of which raise important questions of law, were dealt with by counsel in an instinctive fashion. Likewise is the defendant’s counterclaim founded in unjust enrichment. The plaintiff and the third party have strongly denied and opposed the defences and counterclaim raised on behalf of the defendant.

Two other issues were raised on behalf of the plaintiff and the third party in the course of proceedings. It was pointed out that the defendant had raised constitutional discrimination, legitimate expectation and bias in a purely defensive way without seeking against the Land Board any remedy such as a declaratory judgment. It was also pointed out that section 12 of the Lands, Surveys and Environment Act 1989 provides for a right of appeal to the Supreme Court from a decision of the Land Board within one month, but the defendant has neither lodged an appeal against the decision of the Land Board to lease the disputed land to the defendant nor an application for judicial review. All that the defendant had done was to raise constitutional discrimination, legitimate expectation and bias purely as defences and counterclaim in unjust enrichment.

For convenience I will deal with the issues raised by counsel by dealing first with the defences raised for the defendant and then with the defendant’s counterclaim before dealing with the plaintiff’s claim.

Defences

Before I turn to the individual defences raised for the defendant, it must be said with due respect to counsel, that it would have been more appropriate for the defendant to deal with the question of discrimination under Article 15 of the Constitution by applying for a declaratory judgment under Article 4 rather than pleading the alleged breach of Article 15 as a defence to the plaintiff’s civil action. Likewise, it would have been more appropriate to seek judicial review of the decision by the Land Board to lease the disputed land to the plaintiff on the grounds of legitimate expectation and bias which are two of the traditional grounds for an application for judicial review instead of pleading them as defences to a tortuous civil action in private law. By pleading constitutional discrimination, legitimate expectation and bias as defences to the plaintiff’s civil action in trespass, the defendant has not only misapplied issues of public law as defences to a private law action in tort, but he has also precluded himself from any of the remedies associated with judicial review by not applying for judicial review. Be that as it may, I do not think that if an application for judicial review was filed, it would have made any difference to the outcome of this case.

Arguably, it might have also assisted the defendant to get around the appeal provisions of section 12 of the Lands, Survey and Environment Act 1989 and the time limit of one month if an application for a declaratory judgment had been made under Article 4 of the Constitution for the alleged violation of Article 15 and an application had been made for judicial review on the grounds of legitimate expectation and bias. No such application was made. As a result the Court has to deal in an unprecedented way with constitutional discrimination, legitimate expectation and bias as defences to a private law civil action in tort.

With those prefatory remarks, I turn now to each of the individual defences raised for the defendant.

Disputed land was reclaimed by defendant and approved by Land Board

In his oral testimony, the defendant said that the part of the reclaimed land which is the subject of this dispute had been approved to him by the Land Board. This was strongly denied by the witnesses called for the third party who testified that the Land Board never approved the disputed land to the defendant as a lease. According to the evidence of the secretary to the Land Board, the reclamation by the defendant started from the sea area on the eastern side of his dry land. It then further continued to the sea area that was to the northern side of his dry land. It then continued westward to the sea area to the northern boundary of the dry land that was subsequently purchased by the plaintiff’s husband. He confirmed this by saying that he had visited the defendant’s reclamation when complaints were received about it. He also said that the first objections to the defendant’s reclamation actually came from Mr William Keil whose land is situated to the east from the defendant’s dry land. At that time the defendant had only just started reclaiming the sea area to the eastern side of his dry land.

Tago Uisele a government land inspector and member of the Land Board also gave evidence that the first complaints received by the Land Board concerning the defendant’s reclamation came from Mr William Keil of the village of Vaigaga and people from the village of Vaiusu who said that their foreshore was muddied as a result of the defendant’s reclamation. Both the villages of Vaigaga and Vaiusu adjoin the village of Vaitele where the defendant’s reclamation is located on the eastern side. Tago Uisele also gave evidence that the defendant’s reclamation started from the eastern side of his dry land and continued to the western side where the land belonging to the plaintiff’s husband is located.

The evidence by these witnesses also showed that the complaints by the Alii and Faipule of Vaitele whose lands are located to the west of the defendant’s reclamation were received sometime after the complaints from Mr William Keil of Vaigaga and the people of Vaiusu. This clearly suggests that the reclamation started from the eastern side of the defendant’s dry land and not from the west where the land belonging to the plaintiff’s husband is located. Both the secretary to the Land Board and the witness Tago Uisele also said they visited the defendant’s reclamation when the first complaints were received and it was starting from the eastern side of the defendant’s dry land.

A plan was also produced by the Deputy Director of Lands, Toilolo Egelani, and it showed that the disputed land had been given parcel number 4660. This witness testified that the parcel of land to the east of parcel 4660 is the defendant’s land and that is where the defendant had built his coconut cream factory. Upon inspection of the disputed land after the hearing of this case, the Court found that the coconut cream factory that the defendant had built on part of the land he had reclaimed is to the eastern side of the disputed land which has been given parcel number 4660. Only a minor structure built by the defendant is on the disputed land. This evidence, if anything, tends to confirm that the reclamation started from the eastern side of the defendant’s dry land rather than from the western side.

Having considered all of this evidence, I have decided to accept the evidence given by the witnesses for the third party that the Land Board did not approve the disputed land to be leased to the defendant. The defendants’ reclamation started from sea area that was to the eastern side of his dry land. It then further continued around the sea area that was to the northern side of his dry land. It then continued west to the sea area to the northern side of the dry land subsequently purchased by the plaintiff’s husband. Any reclaimed land that was approved by the Land Board to be leased by the defendant must have been to the eastern and northern sides of the defendant’s dry land. The disputed land must have been the last part of the sea that was reclaimed and I conclude that the Land Board did not agree to lease that part of the reclamation to the defendant. The first defence raised for the defendant therefore fails.

Policy of the Land Board

The next defence raised in the defendant’s pleadings was that it is the policy of the Land Board concerning reclamations of public land, which includes the sea, that only owners of freehold land adjacent thereto can apply for such reclamations.

The real point of this defence is that the owner of the freehold land adjoining the disputed land is not the plaintiff but her husband. Therefore in terms of the Land Board’s policy the plaintiff does not have any standing to apply for a lease of the disputed land. Her husband could have applied for a lease being the owner of the freehold land adjacent to the disputed land but he did not apply. The plaintiff who is the legal owner of the business on her husband’s freehold land was said to be outside of the Land Board’s policy.

I have decided not to accept this rather technical defence. The evidence given by the secretary to the Land Board, which I accept, is that while it is the Land Board’s policy to allow reclamation of the foreshore in some cases by adjacent owners of freehold land, the Land Board has a discretion to depart from that policy and has in fact departed from that policy a number of times. Secondly, the sea area which is now covered by the disputed land was directly on the northern boundary of the land purchased in 1995 by the plaintiff’s husband from one Aroma Collins. The defendant’s dry land is to the eastern side and therefore not adjacent to the sea area to the northern side of the land purchased by the plaintiff’s husband. What happened was that the defendant had reclaimed not only the sea area which was adjacent to his dry land, but also the sea area that was adjacent to the land subsequently purchased by the plaintiff’s husband in spite of a number of warnings from the Land Board to stop. So in terms of the Land Board’s policy that reclamation of the foreshore is allowed to adjacent owners of freehold land, the defendant would not have qualified because he is not the owner of the freehold land adjacent to the sea area which he reclaimed and is now the subject of this dispute. The plaintiff’s husband and his immediate predecessor in title would be the real adjacent land owners. Thirdly, I do not consider that the Land Board acted unreasonably in entertaining the plaintiff’s application to lease the disputed land. The plaintiff’s husband owns the adjacent dry land. But the plaintiff is the legal owner of the business on her husband’s land. In these circumstances, I do not see anything unreasonable in the Land Board entertaining an application from the plaintiff, instead of her husband, to lease the disputed land. After all the Land Board has a discretion in the matter.

Discrimination

It was asserted on behalf of the defendant that the Land Board in granting the lease application by the plaintiff discriminated against the defendant and was in breach of Article 15 of the Constitution. It was not shown which part of Article 15 had been breached but Article 15(2) provides:

“Except as expressly authorized under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them."

It was not demonstrated which of the grounds mentioned in Article 15(2) had been breached. On the evidence that was adduced, it is not possible to see which of the Article 15(2) grounds had been breach, even if one were to assume for the sake argument that the Land Board is part of “the State” as provided in Article 15(2), even though the point was not argued. This defence must also fail.

Legitimate expectation

Counsel for the defendant submitted in their amended statement of defence and counterclaim that because it was the defendant who reclaimed the disputed land and not the plaintiff or her husband, he has a legitimate expectation that the disputed land would be leased to him.

The expression “legitimate expectation” first appeared in English administrative law in the judgment of Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 where His Lordship stated at p.170:

“The speeches in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 show that an administrative body, may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.” (italics mine)

In de Smith, Woolf and Jowell: Judicial Review of Administrative Action (1995) 5th ed, which is still the leading English text on the subject, the learned authors explain what is expected by the use of the term “legitimate expectation” by stating at p. 421:

“The terms of the representation by the decision maker (whether express or implied from past practice) must entitle the party to whom it is addressed to expect, legitimately, one of two things:

(1) that a hearing or other appropriate procedures will be afforded before the “decision is made; or other appropriate procedures will be afforded before the decision “is made; or

(2) that a benefit of a substantive nature will be granted or, if the person is already in receipt of the benefit, that it will be continued and not be substantially varied.

“In the first case, fairness dictates that the expectation of a hearing be fulfilled. The expectation may extend to the opportunity to make representations or to any other component part of a fair hearing, for example, the duty to give reasons. In the second case, fairness dictates that the expectation of the benefit should not be summarily disappointed and that the recipient of the benefit should at least be permitted to argue for its fulfilment.

“In either of the above cases the substantive benefit or advantage may not in the end be granted. All that is required at this stage is that the opportunity be given to participate in the decision about whether or not it should be granted (or not withdrawn or varied). However, in the second case (relating to the expectation of a benefit), the law may sometimes go further and require the expectation to be fulfilled by the actual grant of what was promised.”

The learned authors then go on to make it clear that a legitimate expectation must be induced by the conduct of the decision-maker, and they also clarify the distinction between an entitlement to a hearing based upon a legitimate expectation and an entitlement to a hearing based upon other interests. At pp 422 – 423 they say:

“A legitimate expectation must be induced by the conduct of the decision-maker. It does not flow from any generalised expectation of justice based upon the scale or context of the decision. This quality is the essence of the distinction between an entitlement to a hearing based upon a legitimate expectation and that based upon other interests. It is therefore misleading to classify under the head of legitimate expectation interests which may require procedural protection irrespective of the conduct of the decision-maker. Thus, for example, while the Court of Appeal in R v Liverpool Corporation, ex p. Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 rightly held that the express assurance of consultation by the Corporation created a legitimate expectation, the obiter view of Lord Denning M R that even in the absence of an assurance the applicant’s interest in maintaining the value of their licences would have entitled them to a hearing before the number of licences was increased, identifies a protectable interest quite separate from that derived from the legitimate expectation.

“More recent authorities confirm the conceptual distinction between protectable interests and legitimate expectation. For example, it has been held that objectors to an application for planning permission had no legitimate expectation of being able to make representations on the matter because no conduct of the planning authority had induced such an expectation. Nevertheless, the objectors were entitled to be heard in order to defend their interests as the proposed action would affect them adversely.”

In the present case, the defendant is claiming that he has a legitimate expectation that the Land Board would lease the disputed land to him because it was him who reclaimed the land and not the plaintiff or her husband. In other words the defendant is saying that he has a legitimate expectation that a benefit of a substantive nature, by way of a lease of the disputed land, will be granted to him by the Land Board and that expectation should not be summarily disappointed by the Land Board because it was him who reclaimed the disputed land. This cannot be right. A legitimate expectation must be induced by the conduct of another person who is the decision-maker which in this case was the Land Board. The defendant cannot claim under the doctrine of legitimate expectation that his own conduct had induced on his part a legitimate expectation that the Land Board would grant him a lease of the disputed land.

It would have been consistent with the requirement that an expectation must be induced by the conduct of the decision-maker, if the defendant had argued that in the past the Land Board, which was the decision-maker, had approved his first application for the lease of a quarter of an acre of reclaimed land, then a second quarter of an acre, for him to lease, and then the application by his solicitor for the lease of another half an acre notwithstanding that all his reclamations had been unlawful as having being carried out without a permit or approval from the Land Board and in defiance of repeated warnings and stop notices from the secretary to the Land Board and a similar notice from the Attorney-General. However, while such an argument, would have met the requirement that the expectation claimed must have been created by the conduct of the decision-maker, it would be most difficult to accept that the defendant could legitimately expect that the Land Board would again grant a further lease application from him. It is one thing to have an expectation; it is another to have an expectation that is legitimate. There had been repeated warnings and notices from the Land Board as well as from the Attorney-General to the defendant to stop his continuing reclamation of the sea or the matter would be referred to the law or the police. However, the defendant continued to carry out his reclamations in total disregard of those warnings and stop notices. His actions were well outside the limits of tolerable conduct. His continuing defiance of the prohibitions from the Land Board also amounted to repeated breaches of the law as it is unlawful to reclaim the sea without a permit from the Land Board. The defendant cannot say he was not aware of the unlawfulness of what he was doing because he was repeatedly told about it by the Land Board. He had even reclaimed the sea area which was beyond his own dry land but adjacent to the land owned by the plaintiff’s husband regardless of warnings and stop notices from the Land Board. The defendant is now saying he has a legitimate expectation that the Land Board should also lease that reclaimed land to him. In my judgment, the defendant cannot legitimately expect that the Land Board would again grant him a lease over the disputed land. He had repeatedly defied the numerous warnings from the Land Board. He had taken the Land Board’s patience beyond its limits. He had even breached the law several times by continuing to reclaim the sea without a permit and in defiance of the warnings and stop notices from the Land Board. In short, there was nothing in the conduct of the Land Board which could have induced a legitimate expectation on the part of the defendant that he would be granted a lease over the disputed land.

There is then the question whether the defendant had an interest in the disputed land, different from a legitimate expectation, which entitles him to a hearing. In the circumstances of this case, the question whether the defendant has an interest in the disputed land which entitles him to a hearing gives rise to a further question whether if such a hearing was held, it would have made any difference to the ultimate result that was reached by the Land Board. Put in another way, would the decision reached by the Land Board have been any different if the defendant had been afforded a hearing in accordance with the principles of natural justice. These questions, even though relevant, were not addressed in this case. And I refer to de Smith, Woolf and Jowell: Judicial Review of Administrative Action (1995) 5th ed, pp 498-502; Malloch v Aberdeen Corporation [1971] 2 All ER 1278, 1282-1283; Wislang v Medical Practitioners Disciplinary Committee [1974] 1 NZLR 29, 42; Stininato v Auckland Boxing Association [1978] 1 NZLR 1, 29; Cinnamond v British Airports Authority [1980] 2 All ER 368, 374, 375, 376, 377; R v Monopolies and Mergers Commission, ex parte Argyll [1986] 2 All ER 257, 266.

In the absence of any submissions on the questions I have referred to, I have decided not to express any views on them. However I have not overlooked the consequences upon the defendant of the decision reached by the Land Board. It would mean that the defendant cannot lease the disputed land even though he had reclaimed it. But that is a consequence the defendant had brought upon himself. If he had heeded the many warnings and stop notices given to him, by the Land Board, he would not have landed himself in this situation. The defendant has only himself to blame.

Bias

The next defence raised for the defendant is that of bias. It was said the plaintiff’s husband was Minister of Lands and therefore chairman of the Land Board at all material times. It was also said that there was a conflict of interest situation with the plaintiff being the applicant to lease the disputed land while her husband was chairman of the Land Board.

As already pointed out, the matter concerning the plaintiff’s application to lease the disputed land was discussed at the Land Board’s meeting on 11 January 1996. The plaintiff’s husband was chairman at that meeting. Some members correctly raised concern about the chairman presiding when it was the plaintiff’s application that was being discussed. The chairman then left the meeting when the Land Board was to make its decision on the plaintiff’s application. If matters had stopped there, the bias argument would have had much force for the chairman not only should have refrained from taking part in the decision, he should also have refrained from taking part in the discussion on the plaintiff’s application which preceded the decision.

However the decision reached by the Land Board at the meeting of 11 January was that the matter concerning the plaintiff’s application should be referred to the lawyers of the Attorney-General’s Office for a legal opinion. At its next meeting on 23 January, the state solicitor, who was representing the Attorney-General as a member of the Land Board, advised the Board that it could grant a lease pursuant to the plaintiff’s application as the Land Board had the power to grant the lease sought. The evidence given by the secretary to the Land Board was that the chairman left the meeting of 23 January before the plaintiff’s application was discussed and the Director of Lands who is the deputy chairman of the Board then presided as chairman. After the discussion on the plaintiff’s application, the Land board resolved to approve the plaintiff’s application to lease the disputed land.

The Court did not receive the benefit of submissions on the proper legal test to be applied on the question of bias. After consideration of a number of authorities on the question of bias, I have decided to adopt the test laid down by the English House of Lords in R v Gough [1993] UKHL 1; [1993] AC 646; [1993] 2 All ER 724 which is whether in the circumstances there appears to be a real danger of bias. The reasonable suspicion of bias and the real likelihood of bias tests did not find favour with the Court in Gough’s case. Applying the real danger of bias test to the circumstances of this case, I am of the view there was no real danger of bias in relation to the meeting of 23 January. The chairman left the meeting before the plaintiff’s application was discussed and the Director of Lands as deputy chairman presided as chairman. After the discussion the Land Board resolved to approve the plaintiff’s application. The chairman did not take part in the discussion or the resolution that was reached in that meeting. To say in the special circumstances of this case, that the Land Board was biased simply because the plaintiff’s husband was its chairman even though he was not present at the discussion or decision on the plaintiff’s application, is stretching the law on bias.

The defence of bias in my view must also fail.

Counterclaim in unjust enrichment

It was raised for the defendant that it was him who reclaimed the disputed land which is about half an acre. The costs of the reclamation was said to be $103,000. It was said that if the defendant was not granted a lease over the disputed land then the third party and the plaintiff would be unjustly enriched at the expense of the defendant. The third party and the plaintiff should therefore compensate the defendant for the value of the reclamation which makes up the disputed land. As it will be shown shortly, I respectfully agree with counsel for the defendant that the plaintiff should compensate the defendant.

The concept of unjust enrichment has been before this Court in the case of Betty Elisara v Mataese Elisara (1994) (unreported judgment delivered on 22 November 1994; Div 21/93) and Public Trustee v Foketi Brown and Others (1995) (unreported judgment delivered on 24 January 1995; C.P. 393/93). The elements of a cause of action founded in unjust enrichment or restitution may be described as (a) a benefit (or enrichment) to the defendant, (b) at the expense of the plaintiff, and (c) it would be unjust for the defendant to retain the benefit (or enrichment). In this case the defendant is in effect saying that the third party by leasing the disputed land, which he reclaimed, to the plaintiff at a rent would acquire a benefit at the expense of the defendant and it would be unjust for the third party to keep that benefit without compensating the defendant for the value of the reclamation. Likewise, the plaintiff would acquire a benefit from the lease by the use of the disputed land at the expense of the defendant and it would be unjust for the plaintiff to keep that benefit without compensating the defendant for the value of the reclamation.

Counsel for the thirdly party strongly opposed the counterclaim in unjust enrichment. In my view she is right. The defendant had persistently reclaimed the sea that surrounded his dry land and then proceeded to reclaim the sea to northern side of the land now owned by the plaintiff’s husband without a permit and in spite of repeated warnings from the Land board to stop. In my view the third party should not be required to compensate the defendant. It would not be unjust for the Land Board to retain the benefit of the rent to be paid by the plaintiff under the lease without paying any compensation to the defendant.

However, the same cannot be said in respect of the plaintiff. If the defendant had not reclaimed the disputed land, the plaintiff would no doubt have had to apply to the Land Board for a permit to reclaim the sea to the northern side of her husband’s land. The expenses of such a reclamation would have been paid by the plaintiff. It would be unjust, for the plaintiff to be exonerated because the defendant had reclaimed the disputed land without a permit from the Land Board. If the law had been observed and the defendant had not reclaimed the disputed land, the plaintiff would have had to reclaim the same at her own expense provided a permit was obtained from the Land Board.

On the evidence, I am satisfied on the submissions made by counsel for the defendant that the plaintiff having being granted a lease of the disputed land by the Land Board, has a acquired a benefit (or enrichment) at the expense of the defendant and that it would be unjust for the plaintiff to retain that benefit (or enrichment) without compensating the defendant for the costs of the reclamation that makes up the disputed land. Accordingly, the plaintiff is ordered to compensate the defendant for the costs of the said reclamation, that is, the expenses reasonably incurred by the defendant. But I would like all the parties in these proceedings to submit valuations within 10 days before I make an order as to the amount of compensation to be paid by the plaintiff to the defendant.

Plaintiff’s claim

The plaintiff’s claim in the tort of trespass to land was based on the destruction of the fence the plaintiff put up around the disputed land after it was leased to her by the Land Board and the defendant’s re-occupation of the disputed land thereafter before this matter came to Court. The sum of $3,000 was claimed for general damages. The defendant did not dispute the evidence that was adduced in support of this claim or the quantum of damages but simply relied on the defences already dealt with and rejected in this judgment.

Once the Land Board granted the lease of the disputed land to the plaintiff she had the right to possession of that land. For the defendant to destroy the defence put up by the plaintiff and re-occupied the disputed land before the matter came to Court amounted to unjustifiable interference with the plaintiff’s right to possession of the disputed land acquired under the lease. The tort of trespass to land is concerned with unjustifiable interference with possession or the right to possession of land. As I have already said, the defendant did not really dispute that his actions amounted to trespass. He did not even dispute the quantum of damages claimed. I find that the claim in trespass to land has been made out. Accordingly judgment should be given to the plaintiff for the amount claimed of $3,000.

Conclusion

Judgment is given for the plaintiff against the defendant in the sum of $3,000. The defendant is ordered to vacate the disputed land and remove any structure he has built thereon. A permanent injunction to restrain the defendant, his servants and agents from re-entering the disputed land is granted.

The order to vacate the disputed land and remove any structure built thereon as well as the permanent injunction are to take effect immediately after the plaintiff has paid to the defendant the amount of compensation to be determined by the Court after receiving valuations of the reclamation of the disputed land from all parties within 10 days.

Counsel to file memorandum as to costs within 14 days if they cannot reach agreement.

CHIEF JUSTICE

Solicitors:
Sapolu Lussick for plaintiff
Fepuleai & Schuster and T Malifa for defendant
Attorney-General’s Office for third party