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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT APIA
BETWEEN
HARRY CHAN TUNG
of Nuu, Samoa Businessman
Plaintiff
AND
ATTORNEY GENERAL
being sued for and on behalf of the Registrar of Lands and
the Ministry of Natural Resources and Environment
Defendant
Counsel: H J Schuster for plaintiff
R Wulf and J Koh for defendant
Judgment: 31 October 2005
JUDGMENT OF SAPOLU CJ
Introduction
In these proceedings the Court is required to deal with a motion by the defendant to strike out the plaintiff’s statement of claim on the ground that it discloses no reasonable cause of action against the defendant. Alternatively, the defendant moves: (a) to strike out paragraphs 27, 28, 29 and 36 (iv) (b) of the statement of claim as irrelevant to any cause of action raised by the plaintiff, and (b) to strike out paragraphs 13, 18, 30, 31, 32, 33, 34, 35, 36(i), (ii), 40 and 53 of the statement of claim referring to alleged actions or omissions of the Registrar of Lands as barred by s.38 of the Land Registration Act 1992/1993. Counsel for the defendant also submitted that the plaintiff’s claim is not capable of being reformulated by way of an amended statement of claim so that if the statement of claim is held not to disclose a reasonable cause of action, then it should be struck out thus bringing these proceedings to an end instead of allowing an opportunity to the plaintiff to try and reformulate his claim.
Essentially, the approach that the Samoan Courts have adopted to a motion to strike out as disclosing no reasonable cause of action is that the summary jurisdiction to strike out is to be sparingly exercised. It is only to be exercised in a plain and obvious case where it appears from the material before the Court that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed or is certain to fail: see, for example, Peter Meredith Co Ltd –v- Drake Solicitors Nominee Co Ltd. et al (2001)
For the purpose of the exercise of the summary jurisdiction to strike out a claim as not disclosing a reasonable cause of action, the Court proceeds on the assumption that the facts pleaded in the statement of claim are true, that is, capable of being proved. It is not enough, however, to plead that the defendant has committed, for example, a wilful misconduct in public office or the tort of misfeasance in public office as such misconduct would be more aptly described in legal terminology and then say that the statement of claim discloses a reasonable cause of action in the tort of misfeasance in public office. Specific facts must be pleaded to show that there is a reasonable cause of action in the tort as alleged. To take the same example again, a pleading of the tort of misfeasance in public office is not a pleading of a fact but an assertion of a legal conclusion which must be capable of being sustained by the facts as pleaded. While the Court, as mentioned earlier, would approach a motion to strike out a claim as not disclosing a reasonable cause of action on the assumption that the facts as pleaded are true or capable of being proved, that does not, in my opinion, apply to an assertion of a legal conclusion in the claim. The Court assumes the truthfulness of the facts as pleaded but not the correctness of the law as alleged. Likewise, it is not enough to allege misfeasance in public office in the pleadings and then say that the claim discloses a reasonable cause of action in the tort of misfeasance in public office if the facts which are pleaded do not bear out such a legal conclusion. What is said here is solely for the purpose of clarifying a point which may not have been made clear in previous decisions of this Court on motions by defendants to strike out a statement of claim as disclosing no reasonable cause of action. It is not a criticism of any counsel involved in this case.
The plaintiff’s statement of claim
As it appears from the statement of claim, the plaintiff is a businessman. One of his lines of business is the operation of poultry farm. He purchased a piece of land at Fugalei near Apia containing an area of about four acres in 2002. The price he paid for the land was $480,000. It also appears from the statement of claim that before the purchase of the land took place, the vendor represented to the plaintiff that she is the registered owner of the land and provided the plaintiff with a letter from the Department of Lands, Survey and Environment, now renamed as the Ministry of Natural Resources and Environment, giving the legal description of the said land as well as a scheme plan of the same which had been approved by the said Department. The plaintiff then consulted his solicitors who conducted a search of the property and prepared the deed of conveyance which was executed on 7 November 2002. This deed of conveyance was registered by the Registrar of Lands on 3 December 2002. The plaintiff then hired a surveyor to sub-divide the land. He then used portions of the land to try and raise capital for the expansion of his poultry farm. His loan applications to two banks were approved and mortgage documents were prepared as securities for the loans. However, while the mortgage documents were with the stamp duty office for the assessment and payment of stamp duty, the plaintiff was informed by someone that the Registrar of Lands had placed a caveat on the land. Subsequently, when the mortgages were presented to the land registry office for registration, the plaintiff’s solicitors discovered that the registration of the plaintiff’s land had been removed from the land register by direction of the Registrar. It has therefore been alleged in the statement of claim that the actions of the Registrar amount to misconduct in that they were in breach of his statutory duty under the Land Registration Act 1992/1993 given the representations made by the aforesaid Department of Lands, Survey and Environment on which the plaintiff had relied and acted upon. These representations appear from the statement of claim to be the letter given by someone in the Department to the vendor before the purchase of the land took place showing the legal description of the land as well as the scheme plan of the same which had been approved by the Department. It is further alleged that as a consequence of the Registrar’s actions, the plaintiff has suffered severe economic loss.
The actions alleged in the statement of claim to constitute misconduct are pleaded in paragraph 36 thereof as follow:
“36. The Department had:
(i) represented in documents given to the plaintiff that (the vendor) owned the land and it was registered;
(ii) the Registrar had registered the plaintiff’s deed of conveyance from (the vendor);
(iii) the Registrar had approved the plaintiff’s scheme plan on 29 December 2002;
(iv) after the above confirming actions of the plaintiff’s title the Registrar then:
(a) placed a caveat on the land,
(b) .....
(c) de-registered the land without consultation or consideration of the impact of this act on the plaintiff who is a bona fide purchaser for value without notice,
(d) de-registered the land without seeking guidance from the Court given the plaintiff’s position as bona fide purchaser and the fact there are no compensatory provisions in the Land Registration Act 1992/1993”
Two matters need to be clarified here in relation to paragraph 36 of the statement of claim. The documents mentioned in paragraph 36(1), as it appears from other parts of the statement of claim, were not given by the Department to the plaintiff but to the vendor of the land who showed them to the plaintiff. Secondly, I have omitted paragraph 36(iv) (b) as I agree with counsel for the defendant that it is not relevant.
The statutory duty, which appears from the statement of claim to have been breached, is contained in s.3(2) of the Land Registration Act 1992/1993 which provides:
“(2) It shall be the duty of the Registrar;
(a) To keep and maintain the Land Register
(b) Generally to do all such things and all such proceedings as are prescribed by this Act or regulations made pursuant to this Act or as the Supreme Court directs,”
Amongst the remedies sought by the plaintiff in his prayer for relief is an order that the Registrar’s actions were in breach of his statutory duty and amount to misconduct and that the plaintiff should therefore be re-instated in the land register as the owner of the land in question or alternatively an order for damages in terms of the current value of the land. It is not clear from the statement of claim on what basis the plaintiff is seeking to be re-instated in the land register as the owner of the land.
It should also be pointed out that the plaintiff in his claim is not suing the Registrar of Lands but the Attorney General on his behalf and on behalf of the Department of Lands, Survey and Environment so that the defendant to the claim is not the Registrar or the Department but the Attorney General. Another important matter which should also be pointed out is that in the plaintiff’s affidavit of 17 June 2005 filed in connection with the defendant’s strike out motion, the plaintiff states that after he was informed that a caveat had been placed by the Registrar on the land, he consulted a senior member of the Department of Lands, Survey and Environment, now re-named the Ministry of Natural Resources and Environment, as to why a caveat had been placed on his land. He was advised that if his lawyers had in their search conducted an addition of the land area given in the legal description, they should have found out that the land sold to him was not part of the area specified in the land register.
Is the defendant liable in these proceedings
Section 6(1) of the Government Proceedings Act 1974, which provides for the liability of government in respect of the torts committed by its servants as if it were a private person of full age and capacity, expressly provides that that provision is subject to the provisions of any other Act. Section 9(1), which provides for the method of making the government a party to civil proceedings, also provides that subject to the provisions of this Act and any other Act civil proceedings against the government shall be instituted against the Attorney General. There is no provision in the Government Proceedings Act 1974 or the Land Registration Act 1992/1993 which are the two relevant statutes to show that any proceedings against the Registrar of Lands or any of his subordinates shall be instituted against the Attorney General as defendant. By citing the Attorney-General as defendant on behalf of the Registrar of Lands and the Department of Lands, Survey and Environment and given the nature of the allegations in the statement of claim, one presumes that the remedies sought by the plaintiff are not being sought against the Registrar of Lands or any of his subordinates personally but against the government for the alleged actions of the Registrar and his subordinates. However, s.38 of the Land Registration Act 1992/1993 provides:
“The Government is not liable in any civil proceedings for any damage done or for any loss suffered as a result of any act, omission or default of the Registrar or any of his subordinates.”
Section 38 thus provides a statutory bar to any civil proceedings for damages brought against the government for any act, omission or default by the Registrar or any of his subordinates. This is so notwithstanding the provisions of s.6(1) of the Government Proceedings Act 1974 which provide for liability on the part of government in respect of the torts committed by its servants because s.6(1) expressly makes itself subject to the provisions of any other Act. The provisions of s.38 of the Land Registration Act 1992/1993 would be “the provisions of any other Act” in terms of s.6(1). It would follow that the government is not liable in civil proceedings for any misfeasance in public office (which appears to be the tort implicit in the pleadings in the statement of claim) or any other tort on the part of the Registrar or any of his subordinates. I am therefore in agreement with the argument by counsel for the defendant that the statement of claim discloses no reasonable cause of action against the Attorney General as defendant. It also follows that the citation of the Department of Lands, Survey and Department as an entity on whose behalf the Attorney General is being sued is not a proper citation because the Department is part of government.
At common law, the Crown was not generally liable in tort except in limited situations where the petition of right was available. The position was changed by statute. The principal statute is the Crown Proceedings Act 1947 (UK). This statute became the forerunner of similar statutes in Australia and New Zealand. See Liability of the Crown (1971) pp 62-64 by Professor P W Hogg. The Samoa Government Proceedings Act 1974 is based on the Crown Proceedings Act 1950 (NZ). Thus when contemplating civil proceedings against the government in tort, it would be helpful to bear in mind that at common law the Crown was generally not liable in tort. The position was later changed by statute. The relevant Samoan statute is the Government Proceedings Act 1974. Reference should therefore be made to that statute when contemplating civil proceedings against the government whether it allows for such proceedings. If so, how the government can be made a party. If not, then the contemplated proceedings cannot be brought under that statute against the government unless some other statute permits it which will be quite uncommon.
Is the Registrar of Lands liable in these proceedings
It would be necessary to consider whether the Registrar of Lands can be held personally liable in this case in order to answer the question whether if the claim against the Attorney General as defendant is struck out as disclosing no reasonable cause of action, the statement of claim can be reformulated to show a cause of action against the Registrar. To put the matter in another way, the question is whether the statement of claim can be amended to disclose a reasonable cause of action against the Attorney General in some other form if it does not disclose a reasonable cause of action against the Attorney General as defendant in its present form. It is the submission of counsel for the Attorney General that if the statement of claim discloses no reasonable cause of action in its present form against the Attorney General as defendant, it cannot be reformulated in any other way to disclose a cause of action against the Attorney General. This is because of the clear provisions of s.38 of the Land Registration Act 1992/1993, which provide that the government is not liable for any damage done or for any loss suffered as a result of any act, omission or default of the Registrar or any of his subordinates. I accept that s.38 provides a statutory bar to any liability on the part of government for any act or omission on the part of the Registrar so that whichever way one looks at the matter the statement of claim cannot be reformulated or amended to make the government liable or to bring civil proceedings against the Attorney General on behalf of the government. It is therefore necessary for the Court to consider whether the statement of claim can be reformulated to disclose a reasonable cause of action against the Registrar of Lands himself. Consideration of this question would have to start with the provisions of the Land Registration Act 1992/1993. Section 40 of the At which is the relevant provision states:
“Neither the Registrar nor any subordinate is personally liable in any civil proceedings for any damage done or for any loss suffered as a result of any act, omission or default of the Registrar or subordinate, unless that act, omission or default arose from the wilful misconduct of the person who is sought to be made liable.”
Thus in terms of s.40, misconduct alone is not enough to attach liability to the Registrar. The misconduct would have to wilful. I will refer shortly to some of the cases where the expression “wilful misconduct” has been explained.
The plaintiff’s claim is that the actions of the Registrar were in breach of his statutory duty and is misconduct. As already pointed out, in terms of s.40 the Registrar may only be liable for wilful misconduct and that is the only basis on which liability alleged against the Registrar must be considered. I will therefore consider the tort of misfeasance in public office and whether the claim by the plaintiff can be reformulated against the Registrar under that tort. But before I do that, I will turn first to the meaning of wilful misconduct.
Wilful misconduct
In Magill v Weeks [2001] UKHL 67, [2002] 1 All ER Lord Bingham of Cornhill explained the meaning of the expression “wilful misconduct” as used in that case in these words:
“If the councillors misconduct themselves knowingly or recklessly it is regarded by the law as ‘wilful misconduct.’ That expression was defined by Webster J in Graham v Teesdale (1981) 81 LGR 117 at 123 to mean ‘deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not” That definition was approved by the Court of Appeal in Lloyd v McMahon [1987] UKHL 5; [1987] AC 625 at 646-7, 655 and 674 and by the House of Lords at pp 697 and 702. It was adopted by the Divisional Court in the present case: (1997) 96 LGR 157. It was also accepted by the Court of Appeal [2000] 2 WLR 1420 at 1443. There was no challenge to this definition before the House and I would accept it as representing the intention of Parliament when using this expression.”
In the English Court of Appeal in the case of Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd [1997] EWCA, Beldam LJ said:
“Few phrases have been more fully considered in decisions of the Courts than ‘wilful misconduct.’ The definition most usually adopted is that put forward by Lord Alverstone CJ in Forder v Great Western Railway Company [1905] UKLawRpKQB 129; [1905] 2 KB 532 where, with an addition, he adopted the definition of ‘wilful misconduct’ given by Jackson J in Graham v Belfast and Northern Countries Ry Co [1901] 2 IR 13:
‘Wilful misconduct in such a special condition means misconduct to which the will is party as contra-distinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be) a particular thing and yet intentionally does or fails or omits to do it, or persists in the act, failure or omission regardless of the consequences.’
Lord Alverstone continued:
‘The addition which I would suggest is, or acts with reckless carelessness, not caring what the results of his carelessness may be.’“
There are a number of other English cases, which explain the meaning of the expression “wilful misconduct.” But I need not quote further from those cases as the two cases I have quoted sufficiently convey the meaning of wilful misconduct. The meaning of the same expression has also been explained by the Australian Courts, see, for example Transport Commission (Tas) v Neale Edwards Pty Ltd [1954] HCA, (1954) 92 LR 214; Royal Victorian Aero Club v The Commonwealth [1954] HCA 59; (1954) 92 CLR 236; and Pillai v Messiter [No. 2] (1989) NSWLR 197 per Kirby P at p.200.
For the purpose of the present case, I have decided to apply the definition of wilful misconduct accepted by Lord Bingham in Magill v Weeks [2001] UKHL 67, namely, that ‘wilful misconduct’ means deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not. I also bear in mind that wilful misconduct is wholly different from accident and is far beyond negligence or carelessness even gross negligence or carelessness. As it will appear from the discussion on the tort of misfeasance in a public office, wilful misconduct as defined when committed in a public office by a public officer in the exercise of power would amount to the tort of misfeasance in public office if it causes damage or loss to someone.
Misfeasance in public office
The leading authorities on the tort of misfeasance in public office are the judgments of the House of Lords in Three Rivers District Council v Bank of England (No. 3) [2000] 3 All ER; [2000] UKHL 33; [2000] 2 WLR 1220 and Three Rivers District Council v Bank of England (No. 3) [2001] 2 All ER s13; in what was quite a protracted litigation following the collapse of the Bank of Credit and Commerce International (BCCI).
In Three Rivers District Council v Bank of England (No. 3) [2000] 3 All ER; [2000] UKHL 33; [2000] 2 WLR 1220 the House of Lords stated and explained the ingredients of the tort of misfeasance in public office. The ingredients of the tort as explained by Lord Steyn at pp 1230 – 1236 may be stated as follows:
(1) The defendant must be a public officer
(2) The impugned act must have involved exercise of power by the defendant as a public officer.
(3) The state of mind of the defendant. In this connection, Lord Steyn said at p. 1231:
“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”
Further on when addressing the second form of the tort, Lord Steyn said at pp 1231-1232:
“It is not every act beyond the powers vesting in a public officer which will ground the tort. The alternative form of liability requires an element of bad faith.... Counsel for the Bank pointed out that there was no precedent in England before the present case which held recklessness to be a sufficient state of mind to ground the tort. Counsel argued that recklessness was insufficient. The Australian High Court and the Court of Appeal of New Zealand have ruled that recklessness is sufficient: Northern Territory v Mengel, 69 ALJR 27: Garnett v Attorney General [1997] 2 NZLR 332: Rawlinson v Rice [1997] 2 NZLR 651. Clarke J lucidly explained the reason for the inclusion of recklessness [1996] 3 All ER 558, 581:
‘The reason why recklessness was regarded as sufficient by all members of the High Court in Mengel is perhaps most clearly seen in the judgment of Brennan J. It is that misfeasance consists in the purported exercise of a power rather than in an honest attempt to perform the relevant duty. It is that lack of honesty which makes the act an abuse of process.’
The Court of Appeal accepted the correctness of this statement of principle [2002] 2 WLR 15, 61-62. This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form.”
Further on at p. 1232, Lord Steyn held that ‘reckless’ in this context is to be considered in a subjective rather than in an objective sense because of the requirement of bad faith in the exercise of public powers which is the justification for the existence of the tort of misfeasance in public office.
(4) Duty to the plaintiff, Lord Steyn at p. 1233 said that any person with a sufficient interest may sue in the tort of misfeasance in public office. If a public officer deliberately does an act which he knows is unlawful and causes economic loss to someone, that person may sue.
(5) Causation which is also an essential element of the cause of action for misfeasance in public office is a question of fact. It is unsuitable for summary determination.
(6) Damage and remoteness, Lord Steyn at p. 1235 accepted the view expressed by Clarke J at first instance that a test of foreseeability is not enough in this tort. Lord Steyn also accepted the test enunciated by Clarke J at first instance of knowledge by the public officer that the decision he makes would probably damage the plaintiff. In my view, this must include the situation where the public officer had foreseen that his act or omission would probably damage the plaintiff.
In Three Rivers District Council v Bank of England (No. 3) [2000] UKHL 33; [2001] 2 All ER s13 [2000] 2 WLR 1220 which is the second decision of the House of Lords already mentioned, Lord Hope of Craighead in stating the ingredients of the tort of misfeasance in public office said at p. 526:
“[4] The correct test for misfeasance in public office was established by your Lordships’ judgment following the previous hearing of this appeal ([2000] [2000] UKHL 33; 2 All ER 1; [2000] 2 WLR 1220) [42] The following are the essential elements of the tort. First, there must be an unlawful act or omission done or made in the exercise of power by the public officer. Second, as the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element. Third, for the same reason, the act or omission must have been done or made in bad faith. Fourth, as to standing, the claimants must demonstrate that they have a sufficient interest to sue the defendant. Fifth, as causation is an essential element of the cause of action the act or omission must have caused the claimant’s loss.”
At p. 550, Lord Hutton stated the ingredients of the tort of misfeasance in public office in these words:
“[121] [The] essential ingredients of the tort of misfeasance in public office were stated in the judgment of the House following the previous hearing [2000] UKHL 33; [2000] 3 All ER 1 at 8-10; [2000] UKHL 33; [2000] 2 WLR 1220 at 1230-1233 and I do not propose again to restate those elements with precision. But it is clear that a plaintiff must prove (1) an abuse of the powers given to a public officer; (2) that the abuse was constituted by a deliberate act or deliberate omission by the public officer with knowledge that the act or omission was wrongful or with recklessness as to whether or not the act or omission was wrongful; (3) that the public officer acted in bad faith; and (4) that the public officer knew that his act or omission would probably injure the plaintiff on was reckless as to the risk of injury to the plaintiff.”
On the question of bad faith which I consider to be crucial to the consideration of the defendant’s strike out motion in these proceedings and how bad faith should be pleaded, Lord Hobhouse of Woodborough said at p.569:
“The tort of misfeasance in public office is a tort which involves bad faith and in that sense dishonesty. It follows that to substantiate his claim in this tort, first in his pleading and then at the trial, a plaintiff must be able to allege and then prove this subjectively dishonest state of mind. The law quite rightly requires that questions of dishonesty be approached more rigorously than other questions of fault. The burden of proof remains the civil burden – the balance of probabilities – but the assessment of the evidence has to take account of the seriousness of the allegations and, if that be the case, any unlikelihood that the person accused of dishonesty would have acted in that way. Dishonesty is not to be inferred from evidence, which is equally consistent with mere negligence. At the pleading stage the party making the allegation of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation will be struck out: (emphasis mine)
At p. 578, Lord Millet said:
“[184] It is well-established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence.... This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so.”
In the context of the present tort, the terms “dishonesty” and “in bad faith” have been used interchangeably, for instance, in Three Rivers District Council v Bank of England (No. 3) [2000] UKHL 33; [2000] 2 WLR 1220 Lord Hutton said at p. 1266:
“[I] consider that dishonesty is a necessary ingredient of the tort, and it is clear from the authorities that in this context dishonesty means acting in bad faith. In some cases the term ‘dishonesty’ is not used and the term ‘in bad faith’ or acting from ‘a corrupt motive’ or ‘an improper motive’ is used, or the term ‘in bad faith’ is used together with the term ‘dishonesty’... The judgment of Buxton L J in Barnard v Rostormel Borough Council [1998] 3 PLR 27 is a modern example of how the terms ‘dishonesty’ and ‘bad faith’ are used interchangeably. In that case where misfeasance in public office was alleged Buxton LJ in delivering his judgment said at p. 3: ‘We bear in mind the need to establish dishonesty’ and later at p. 37 he referred to the 'strong emphasis' in the tort of misfeasance on the requirement of subjective bad faith.”
At p. 1273, Lord Millet said when addressing misfeasance in public office:
“The tort is an intentional tort which can be committed only by a public official.
From this two things follow: First the tort cannot be committed negligently or inadvertently. Secondly, the core concept is abuse of power.
This in turn involves other concepts, such as dishonesty, bad faith, and improper purpose. These expressions are often used interchangeably....
They are all subjective states of mind.”
It is recommended that anyone who wants to get the full flavour of the tort of misfeasance in public office must read the judgments of the House of Lords in Three Rivers (No. 3) leaving out those parts on European Community law. Also recommended are Northern Territory of Australia v Mengel (1995) 185 CLR 307 which is the leading Australian authority on misfeasance in public office and the decision of the New Zealand Court of Appeal in Garrett v Attorney General [1997] 2 NZLR 332
Wilful misconduct and misfeasance in public office
In terms of s.40 of the Land Registration Act 1992/1993, neither the Registrar of Lands nor any of his subordinates is liable for damage or loss from any act, omission or default unless that act, omission or default arose from wilful misconduct. Misconduct alone is not enough, the misconduct must wilful. This takes out an act, omission or default which arises from accident, inadvertence, carelessness or negligence. As earlier pointed out, in Magill v Weeks [2001] UKHL 67: [2002] 1 All ER Lord Bingham accepted that the expression “wilful misconduct” means the doing of something which is wrong knowing it to be wrong or with reckless indifference whether it is wrong or not. The misconduct claimed by the plaintiff against the Registrar is an alleged breach by the Registrar of his duty under s.2 of the Act which provides that it shall be duty of the Registrar: (a) to keep and maintain the land register, and (b) to do all such things and take all such proceedings as prescribed by the Act. For the alleged misconduct to be actionable, it must be shown to be wilful as required by s.40, that is, it must be shown that the alleged breach of statutory duty is wrong but the Registrar nonetheless committed it knowing it to be wrong or with reckless indifference whether it is wrong or not. This is the same state of mind required for the tort of misfeasance in public office: see Three Rivers (No. 3) [2000] UKHL 33; [2000] 2 WLR 1220 per Lord Steyn at pp 1230-1232. As the Registrar is a public officer who is occupying a public office and who is required to perform a public duty, an action against him for alleged wilful misconduct in the performance of his official statutory duty would have to be brought in the tort of misfeasance in public office, there being no tort known as wilful misconduct. I therefore accept the submission by counsel for the defendant that if the action for the plaintiff is to have any chance of success it should have been pleaded in the tort of misfeasance in public office because s.40 of the Act provides that the Registrar is only liable for an act, omission or default that arises from wilful misconduct. However, that has not been done.
The question to be considered then is whether the plaintiff’s claim is capable of reformulation to disclose a reasonable cause of action in the tort of misfeasance in public office against the Registrar. If that can be done, then perhaps the opportunity should be granted to the plaintiff to reformulate his claim. If, on the other hand, the claim cannot be reformulated, then the statement of claim should be struck out. This exercise requires consideration of the pleadings in the statement of claim and the plaintiff’s supporting affidavit of 17 June 2005. It should also be noted here that the action by the plaintiff is directed against the Registrar and not against any of his subordinates as none of them is being sued. However, if the plaintiff’s intention was also to sue any of the Registrar’s subordinates then that subordinate should have been cited as a separate party because the Registrar is not vicariously liable for the actions of his subordinates as he is not their employer. The Department of Lands, Survey and Environment is also not vicariously liable because in terms of s.38 of the Act the government is not to be liable for any act, omission or default of the Registrar or any of his subordinates and the Department, or Ministry as it is now called, is part of the government.
Is the plaintiff’s claim capable of reformulation in the tort of misfeasance in public office
As earlier pointed out, bad faith is an essential ingredient of the tort of misfeasance in public office. Questions of dishonesty, a term which has been used interchangeably with the term “in bad faith”, are to be approached more rigorously than other questions of fault: Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16; [2001] 2 All ER 513 per Lord Hobhouse at p.569. An allegation of dishonesty or bad faith must also be distinctly pleaded and sufficiently particularised: Three Rivers (No. 3) [2001] UKHL 16; [2001] 2 All ER 513 per Lord Millet at p. 578. After careful consideration of the plaintiff’s pleadings in his statement of claim I am satisfied that the question of whether the plaintiff’s claim is capable of reformulation can be narrowed down to the question of whether the pleadings can be reformulated to show bad faith on the part of the Registrar. Bad faith is at the heart of the tort of misfeasance in public office and forms an essential ingredient of the tort.
As is appears from the written submissions for the plaintiff, all the facts upon which the plaintiff relies are contained in his statement of claim and his two supporting affidavits. So there are no other facts. Of these two affidavits, I need only refer in what follows to what the plaintiff says in his affidavit of 17 June 2005. The relevant pleadings in the statement of claim show that the Department of Lands, Survey and Environment gave a letter showing the legal description of the land in question to the vendor who subsequently sold the land to the plaintiff. As it appears from the plaintiff’s supporting affidavit, the person in the Department who gave this legal description to the vendor is a senior member of the staff of the Department. The same staff member also gave to the vendor the scheme plan approved by the Department. There is no specific allegation that the Registrar was in any way involved in all of that. The vendor then gave the legal description and the scheme plan of the land to the plaintiff who in turn gave them to his lawyers who then conducted a search of the property. Subsequently, a deed of conveyance of the land from the vendor to the plaintiff as purchaser was prepared and executed. This deed was registered by the Registrar on 3 December 2002. There is no allegation that the Registrar was acting in bad faith i.e. dishonestly when he registered the deed. In fact, it is not possible to see from all the pleadings in the statement of claim or the allegations in the plaintiff’s supporting affidavit any bad faith on the part of the Registrar when he registered the deed. On 29 December 2002, the Registrar approved scheme plan 6965. It is not entirely clear whether this is the same scheme plan that was given to the vendor by a senior staff member of the Department. I will assume that it is. Again there is no allegation that the Registrar was acting in bad faith or dishonestly when he approved scheme plan 6965. The plaintiff then tried to raise capital on the security of the land when he discovered that the Registrar had placed a caveat on the land. When the plaintiff consulted officials of the Department about the caveat, he was told that the search of the property was incomplete and that the vendor did not own the land. He was also told that the matter had been referred to the Office of the Attorney General. In his supporting affidavit, the plaintiff says that when he consulted another senior official of the Department about the caveat placed on his land he was told that if the search of the property had conducted an addition of the land area given in the legal description, it would have been discovered that the land sold to him was not part of the land specified in the register. Again there is no allegation that the Registrar was acting in bad faith in placing the caveat on the land.
According to the plaintiff, the Registrar subsequently de-registered his land without consulting him. In the plaintiff’s supporting affidavit, he alleges that his solicitors had relied on the legal description provided by a senior official of the Department which legal description is now claimed by the Department to be incorrect. The plaintiff further alleges that if the legal description is incorrect, then the senior official who provided the legal description had deliberately misled him by providing a legal description of the land that was not true and correct. That is therefore misconduct. Alternatively, if the legal description that was provided is true and correct then the Registrar has acted with improper motive in de-registering his land. That is therefore also misconduct.
Several points would have to be noted here. In the first place, the pleadings in the statement of claim show that the legal description and the scheme plan of the land were given to the vendor by a senior official of the Department. It was then the vendor who gave those documents to the plaintiff. Secondly, the plaintiff does not appear to be proceeding against the said official. But if he is, then it should be noted that in terms of s.40 of the Act, a “subordinate of the Registrar” can only be liable for wilful misconduct. It should also be noted that in terms of s.38 of the Act the government would not be liable. Likewise, the Registrar would not be vicariously liable for the misconduct alleged against the said official because he is not the employer of the said official. Thirdly, if the plaintiff proceeds in misfeasance in public office then bad faith is an essential ingredient. Questions of bad faith i.e. dishonesty are to be approached rigorously. An allegation of bad faith must also be distinctly pleaded and sufficiently particularised. Even though it is alleged that if the legal description provided by an official of the Department to the vendor is true and correct then the Registrar has acted with improper motive in de-registering the land, this is not a distinct pleading of bad faith with sufficient particulars. The term ‘improper motive’ as the authorities show has been used in interchangeably in this context with the terms ‘dishonesty’ and ‘in bad faith’ : Three Rivers District Council v Bank of England (No. 3) [2000] 2 WCR 1220 per Lord Hutton at p. 1266. So an allegation of improper motive should be distinctly pleaded and sufficiently particularised. However, as it will appear shortly, the reason for the Registrar de-registering the land is because the legal description of the land is incorrect and therefore the registration of the deed was also incorrect as the vendor did not own the land shown in the deed. In such circumstances the Registrar can hardly be said to have acted with an improper motive or dishonestly or in bad faith when he de-registered the land because as he understood it the land had been incorrectly registered in the name of the plaintiff as a purchaser. Fourthly, it is clear from the pleadings in the statement of claim and the allegations in other parts of the plaintiff’s supporting affidavit that the Registrar and the Department had formed the clear view that the legal description of the land in question is incorrect and the land did not belong to the vendor. It is for that reason that the Registrar decided to place a caveat on the land and to refer the matter to the office of the Attorney General. So as far as the Registrar was concerned, the legal description which had been given by a senior official of the Department to the vendor who in turn gave it to the plaintiff is incorrect. That was the reason for the caveat and must also have been the reason for the de-registration of the land from the register. In trying to put right something he considered to be incorrect, the Registrar cannot be said to have acted with an improper motive or dishonestly or in bad faith. This is not a case of where a person acted without any basis for his action or where an improper basis for his action is shown. It is clear that the Registrar and the Department held the clear view that the legal description for the land is incorrect and therefore the land sold to the plaintiff did not belong to the vendor. The registration of the land was therefore incorrect and the land should be de-registered. But even if it is assumed that the Registrar was mistaken in the actions that he took, being mistaken is not the same thing as being dishonest or acting in bad faith.
I have therefore come to the view that whichever way one looks at this matter on the basis of the pleadings and the plaintiff’s supporting affidavit which contain all the facts upon which the plaintiff relies, the Registrar did not act in bad faith. But bad faith is at the heart of the tort of misfeasance in public office and forms an essential ingredient of the tort. It follows that the statement of claim is not capable of being reformulated to show a reasonable cause of action in misfeasance in public office against the Registrar. There is therefore no point in granting the opportunity to the plaintiff to reformulate his claim. Accordingly, the statement of claim is struck out. I need not therefore have to go further to consider the alternative part of the strike out motion.
Judicial review
Given the provisions of the Land Registration Act 1992/1993 and the plaintiff’s pleadings, the appropriate remedy in my respectful view should have been proceedings for judicial review. In such proceedings, the issues raised for the plaintiff concerning the extent of the Registrar’s power under s.30 of the Act to correct errors in the land register and whether the Registrar should have applied to the Court under s.31 for directions before he de-registered the land would have been discussed and considered. These issues relate to the questions of the existence of power and exercise of power by the Registrar and are suitable for judicial review proceedings. In my view, the real issue given the provisions of the Act and the pleadings appears not to be whether the Registrar committed any wilful misconduct and therefore misfeasance in public office but whether the Registrar had the power to de-register the deed and if so did he exercise that power properly when de-registering the plaintiff’s deed. In other words, the fundamental question is whether or not the Registrar was right in de-registering the plaintiff’s deed. I will leave that matter to counsel for the plaintiff to consider.
Conclusion
All in all then, the statement of claim is struck out, Counsel to file submissions as to costs in ten (10) days if they cannot reach agreement.
Before leaving this judgment, I must thank counsel for the defendant for their thoughtful and well prepared submissions and citation of authorities which have been very helpful.
CHIEF JUSTICE
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