| Fiji Islands - The State v The Minister for Lands & Mineral Resources, Ex parte Nivis Motors & Machinery Co Ltd - Pacific
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IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 0033 OF 1997
THE STATE
v.
The Minister for Lands and Mineral Resources
ex-parte Nivis Motors & Machinery Co. Ltd.
Mr. H. Nagin for the Applicant
Mr. S. Kumar for the Respondent
JUDGMENT
Nivis Motors & Machinery Co. Ltd. ('the applicant') is the registered lessee of State land situate at the corner of Golf Link Road and Ratu Mara Road at Nabua upon which it conducts its business of selling new and used motor vehicles and machinery.
As part of a major road-upgrading scheme for the Nabua area, Government or, more particularly, the Ministry of Infrastructure, Public Works and Transport ('the Ministry') has finalised plans to construct and expand the existing roundabout situated at the intersection of Ratu Mara/Golf Link and Mead Roads immediately adjacent to the applicant's leasehold.
The redesigned roundabout necessitates, amongst other things, the acquisition of a 455 sq. metres portion of the applicant's leasehold which it currently uses for the purpose of displaying and advertising its motor vehicles.
There is some further background to this case but for present purposes suffice it to say that on the 19th of September 1996 an officer of the Ministry wrote a letter to the Managing Director of the applicant advising inter alia: "... that we will be contacting you in due course to discuss further on land acquisition matter". This was followed by a further letter on 10th October 1996 written to the applicant detailing the land area required and offering 'compensation of $28,000'.
By letter dated March 20, 1997 to the Ministry the applicant's solicitor's wrote: "(Our client) has no intentions of selling any part of its land ..." This was later followed by a letter from the Managing Director of the applicant dated 29th May 1997 proposing three (3) alternative courses including, foregoing the portion of land for $2 million; exchanging the portion for 2 acres of nearby vacant land to be acquired by the Ministry; and thirdly, redesigning the roundabout so as to exclude the applicant's leasehold.
The Ministry responded in a letter dated 4th June 1997 with an increased compensation offer of $60,000 and warning that: "... failing which, we have no alternative but to proceed with Compulsory Acquisition under the relevant Act". In its response of 10th June 1997 the applicant reaffirmed its earlier offer to sell the portion of land for $2 million.
By letter dated 4th July 1997 the Ministry wrote expressing its regret. "... that negotiation have now broken down. In this case P.W.D. has no option but to proceed with compulsory acquisition of portion
of your lease as detailed on survey office plan SO3403".
Thereafter the Managing Director of the applicant obtained a report dated 17th September 1997 from an overseas consulting firm, which suggested three (3) alternative intersection designs, all of which excluded the need to acquire any portion of the applicant's leasehold. The alternative
conceptual designs were presented to the Ministry at a meeting held on the 4th of August 1997 but were later formally rejected in its letter of 24th September, 1997.
I say 'formally rejected' because in the interim, by letter dated 29th August 1997, the Director of Lands notified the applicant that:
"... pursuant to the exercise of the powers conferred upon the Minister of Lands and Mineral Resources under Section 3 of the
State Acquisition of Lands Act (Cap. 135) and pursuant to the provisions of Section 5 of the said Act that the land described as
Lot 1 on Plan SO3403 comprising an area of 455 sq. metres under lease C.L. 9007 to (the applicant company) after 30 days from the issuance date hereof is to be compulsorily acquired for Nabua By-Pass Road."
A similar notice signed by the Minister of Lands and Mineral Resources ('the Minister') was published in the Fiji Republic Gazette of 5th September 1997.
On the 6th of October 1997 the applicant issued the present application seeking the Court's leave to challenge the Minister's decision as signified in the above-mentioned Gazette Notice.
There are numerous grounds advanced by the applicant which includes 'unfairness' in not giving the applicant an opportunity to be heard; 'abuse of discretion' in not taking into consideration various enumerated matters; acting 'arbitrarily and unreasonably'; 'exceeding his jurisdiction' under Section 5 of Crown Acquisition of Lands Act and Section 9 of the Constitution of Fiji; and 'acting contrary to the applicant's legitimate expectation' that the Minister would properly consider design alternatives that obviated the need to acquire the applicant's land.
In reading the applicant's 'grounds' I am reminded of the observations of the Fiji Court of Appeal as recently as November 1997, in Victor Kaisiepo v. The Minister for Immigration Civil Appeal No. 54 of 1996 (unreported) where, in deprecating the grounds for judicial review drafted in that case, the Court said, at p.3:
"... the appellant raised almost all imaginable grounds available in administrative law to challenge the decision but did not
make clear what matters were relied upon to support the individual grounds. This is an unacceptable procedure when seeking judicial
review. We add, that adopting this scatter-gun approach is inimical to the applicant's prospects of success for the Court is left
unclear as to what are the important issues in the case."
Somewhat similarly in this case no attempt has been made to identify when? during the process of acquisition the applicant was denied a hearing by the Minister nor does it say how? the Minister acted 'arbitrarily and/or unreasonably' nor in what? particular manner he exceeded his statutory jurisdiction.
I turn then to consider the statutory context underlying the Minister's power to compulsorily acquire land. Section 9(1) of the Constitution provides:
"No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description
shall be compulsorily acquired, except under the authority of a law that -
(a) requires the acquiring authority to give reasonable notice of the intention to take possession of, or acquire the interest in
or right over, the property to any person owning the property or having any other interest or right therein that would be affected
by such taking of possession or acquisition;
(cf: Section 5 State Acquisition of Lands Act)
(b) requires the acquiring authority to apply to the Supreme Court for an order authorising such taking of possession or acquisition
or to apply thereto within thirty days of such taking of possession for such an order as aforesaid;
(cf: Section 6(1) ibid)
(c) requires the Supreme Court not to grant such an order unless it is satisfied that the taking of possession or acquisition is necessary
or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning
or utilisation of any property in such a manner as to promote the public benefit;
(cf: Section 6(3) ibid)
(d) requires the acquiring authority to pay damages in respect of such taking of possession prior to an application to the Supreme
Court when such an order is not granted and requires the prompt payment of adequate compensation for the taking of possession or
acquisition where such an order is granted;
(cf: Section 7(1) ibid)
(e) requires the acquiring authority, if no agreement as to the amount and manner of payment of compensation has been concluded with
any claimant to compensation within thirty days of the grant of the order referred to in paragraph (b) of this subsection, to apply
to the Supreme Court for the determination of those matters in relation to that claimant (including, where necessary, any question
as to his entitlement to compensation); and
(cf: Section 7(3) ibid)
(f) requires the acquiring authority to pay the costs reasonably incurred by any other party in connection with the proceedings before
the Supreme Court for any of the aforesaid purposes, including any appeal (not made unreasonably or frivolously) from any decision
of that Court of the Court of Appeal given for those purposes".
(cf: Section 7(4) ibid)
Quite plainly the Constitution prohibits the compulsory acquisition of property 'except under the authority of a law' that fulfils certain minimum constitutional requirements.
In this latter regard, although 'the law' under which the Minister has purported to act is not challenged, I am satisfied that having regard to its various provisions, the State Acquisition of Lands Act (cap. 135) ('the Act') is 'a law' which fulfils all the minimum constitutional requirements and may therefore be invoked to compulsorily acquire or more accurately, resume possession
of part of the applicant's leasehold.
Section 3 of the 'the Act' expressly empowers:
"an acquiring authority (to) acquire any lands required for any public purpose ... as he may think proper, paying such consideration or compensation as may be
agreed upon or determined under the provision of this act"
Furthermore Section 2 designates 'the Minister, in relation to the Government' as the relevant 'acquiring authority' and the broad definition of 'public purposes' includes "the utilisation of land necessary or expedient in ... public safety, public order, ... town and country planning or ... to promote
the public benefit.
In this latter regard it is not nor can it be doubted that the road upgrading scheme being undertaken by the Ministry at Nabua is a 'public purpose' designed to alleviate traffic congestion and facilitate the speedy and safe flow of traffic on a major road through a built-up urban
area. Certainly no doubt has been raised by the applicant on that score.
Counsel for the applicant writes however, in his written submission that the Minister exceeded his jurisdiction in so far as the compulsory acquisition of property 'is a last resort' and the Minister did not so treat the exercise of his power in the applicant's case.
I confess that nowhere in the 1990 Constitution or in the State Acquisition of Lands Act (Cap. 135) can such an inference be found or arise. Indeed the idea of 'expediency' in the definition of 'public purposes' in 'the Act', tends to negate counsel's submission. What's more such a nebulous concept is inappropriate in this area where the 'public interest' is and must undoubtedly remain the over-riding consideration.
To entertain this submission would be to further subject the Minister's power under Section 3 of the Act not only 'to the provisions of the Constitution and the other provisions of the Act' but also, to the availability of other alternatives. That cannot be right given the scheme of 'the Act'.
Needless to say it is not the function of this Court to second-guess the Minister's decision of what he considers best serves the 'public interest', nor is the Court permitted to go behind and examine the Minister's reasons for his decision, especially, as the Court itself is made the 'final arbiter' in terms of Section 6 of the Act of whether or not "... the taking of possession or compulsory acquisition is necessary or expedient (in the public interest) ... or to promote the public benefit".
Notwithstanding that, I am satisfied from the numerous correspondence exchanged between the parties and the various documented meetings
that took place over a period in excess of twelve (12) months, that the parties had reached an intractable impasse and 'negotiations (had) broken down' so that the compulsory acquisition of part of the applicant's leasehold was, in effect, 'a last resort'.
There is no merit at all in the applicant's ground that the Minister exceeded his statutory powers in issuing and publishing the '30-day compulsory acquisition notice' in strict compliance with the requirements of Section 5 of 'the Act'.
As for the applicant's legitimate expectations' Counsel submits that the Minister 'failed to properly consider the alternatives to acquisition of the applicant's land'. I accept at once that there is no evidence that the Minister did personally consider and reject the applicant's alternative designs but that does not mean they were not considered.
As was said by Diplock L.J. in Bushell v. Environment Secretary [1980] UKHL 1; (1981) A.C. 75 at p.95:
"To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of
which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore
not only practical realities but also Parliament's intentions. Ministers come and go; departments, though their names may change
from time to time, remain. Discretion in making administrative decision is conferred upon a minister not as an individual but as
the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and
expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective
knowledge, technical as well as factual of the civil servants in the department and their collective expertise is to be treated as
the minister's own knowledge, his own expertise. It is they who in reality will have prepared the draft scheme for his approval;
it is they who will in the first instance consider the objections to the scheme ... and it is they who will give to the minister
the benefit of their combined experience, technical knowledge and expert opinion on all matters raised in the objections and the
report. This is an integral part of the decision-making process itself."
In this regard I am more than satisfied that the applicant's three (3) alternatives put forward in its letter of 29th May 1997 was fully considered by the Ministry and indeed was the subject-matter of a detailed and comprehensive report by the Ministry's own technical consultants, Kingston Morrison, and a copy of which was generously provided to the applicant.
Similarly the applicant's overseas consultant's 'alternative conceptual designs' for the roundabout were submitted at a meeting with Ministry officials attended by the applicant's Managing Director on the 4th August 1997, at which meeting the Ministry officials are recorded to have said "... they would come back to (the applicant) after they discuss (the designs) with their engineers" and the Managing Director further writes in his 'minutes' of that meeting:
"I believe that in about two weeks or so after that meeting Mr. John Williams of Kingston Morrison in Auckland was in Suva discussing
with P.W.D.
We were never contacted by P.W.D. Mr. Tomasi Vakatora did contact P.W.D. several times and he was told that P.W.D. was considering
our proposals."
Finally reference may be made to the Ministry's letter of 24th September, 1997 in which it referred to the above meeting and wrote:
"While we appreciate your concern we are unable to accommodate your request for reasons discussed in the various meetings we
have had with you this year."
Quite plainly both representations by the applicant and its advisors was considered by the Ministry and rejected.
Although the provisions of 'the Act' do not expressly provide for it, I accept that as a matter of 'fairness', there is a duty cast upon an 'acquiring authority' to provide the person whose land is being compulsorily acquired, an opportunity to make such representations as it desires to make
to the 'acquiring authority', and further, that the 'acquiring authority' is bound to consider such representations.
This, in my view, is implicit in the 'notice procedure' required in terms of Section 5 of 'the Act'. But, having said that, I am equally convinced that the mere existence of other 'conceptual alternatives' not requiring the compulsory acquisition of the applicant's land does not thereby render the decision to nevertheless acquire the
land, either arbitrary, or unreasonable in a 'Wednesbury' sense. Much more is required.
What's more the duty to consider an applicant's objections and representations against the compulsory acquisition of his property,
does not, and cannot mean, that such objections and representations must inevitably be accepted, or indeed, that the applicant must
be given a further opportunity to examine and respond to any adverse report or advice obtained by the Ministry after such objections or representations have been made.
In my respectful view given the absence of any statutory requirements in 'the Act', the applicant's right to be heard in a case involving the compulsory acquisition of his property is correctly set out in the following
passage of the judgment of Henry J. in Perpetual Trustees v. Dunedin City (1968) N.Z.L.R. 19 when his honour said at p.26:
"... an objector is sufficiently informed of the subject-matter of what he has to meet by reason of compliance with the statutory (notification) requirements ..., but there is no obligation on the Minister ... to make available ... the material upon which this notice is founded.
The objector must be given a proper opportunity to put forward such evidence as he may think fit in support of his objection. The
evidence so given does not alter the issue which is defined at the beginning by compliance with the statutory requirements. If the
objector raises new matters (e.g. in this case, the applicant's 'alternative conceptual designs'), then the objector is entitled to develop it affirmatively as he thinks proper. Having done so he has exhausted his right of hearing.
He does not thereby set up any new issues upon which he has a right of replication. The Minister ... must consider the subject-matter
of the objection in coming to an opinion on whether or not it is expedient (to compulsorily acquire the land). In that consideration the Minister ... may consider further material on the matters raised by the objector, but there is no right
for an objector to call for a further hearing of his objection by way of reply to matters ... prejudicial to his objection by reasons
that they are critical of views put forward by way of counter-proposals as part of an objection. There is no hearing of the new or
alternative proposals - only a hearing of objections to the original proposals. An objector is heard if he knows what he is objecting
to and is given full opportunity to develop his objection affirmatively. Thereafter it is a matter for the Minister ... to consider
the objection and to come to an opinion on the wider question of expediency on such material as may be considered in that behalf."
Then counsel for the applicant suggests that the applicant had no fore-knowledge or awareness until September 1996 that the Ministry's proposed road-upgrading scheme required the acquisition of a small portion of its leasehold. This is deposed by the applicant's Managing Director at paras. 11, 12 & 14 of his affidavit in support.
In this regard there is nothing in 'the Act' which requires that an affected person should be advised of the 'acquiring authority's' intention to compulsorily acquire his land prior to the 'notice' under Section 5 of 'the Act'.
Even assuming however, that such 'fore-knowledge' on the applicant's part was a requirement over and above the statutory notice given under 'the Act', I am satisfied from the correspondence exchanged between the Ministry and the applicant's architect that, as early as 16th October 1995, the applicant's architect was aware that: "The proposed roundabout encroaches onto (the applicant's) property."
Furthermore the correspondence clearly confirms that approval of the applicant's new showroom was sought on the basis that: '... it is set back 2 metres from the proposed (not existing) boundary', and was granted by the Ministry on the basis of: "... a 2m set back from the boundary line (coloured green) defined by (the Ministry)." The approval also required the relocation of the applicant's 'existing access' a further 15m from where it was at the time presumably because of the change in boundaries.
Quite clearly in my view the applicant's architect knew of the 'encroachment' since 1995 and therefore so did the applicant vicariously.
For the foregoing reasons I have come to the firm conclusion that the grounds raised on the applicant's behalf either have no chance
of success or raise no justiciable issue, and accordingly, the application is dismissed with costs to the respondent.
D.V. Fatiaki
JUDGE
At Suva,
4th February, 1998.
Hbj0033j.97s
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