HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 102 of 2003

LAUGWARO

–V-

AUGA

HIGH COURT OF SOLOMON ISLANDS
Muria CJ

Date of Hearing: 18th July 2003
Date of Judgment: 19th August 2003

Mr. Ipo for the Plaintiff
Defendant in person

MURIA, CJ: This matter has come to this Court by way of case stated referred to this Court by the learned Chief Magistrate pursuant to section 43 of the Magistrates Courts Act (Cap. 20). Although the case before the Magistrates Court is between the plaintiff and defendant, the nature of the questions posed for this Court’s determination affect the interest of the Solomon Islands Government and thus it was necessary for the Court to hear arguments on behalf of the Government. The reference first came before the Curt on 19th June 2003. It was adjourned as the Court felt that the Attorney-General’s office be notified and served with the papers in the matter. That was done and so appearance had been entered on behalf of the Government on 9th July 2003. At the hearing on 18th July 2003, there was no representation on behalf of the Government. As the case had been adjourned for one month and the defendant having had to travel from Malaita to Honiara for the hearing, the Court proceeded with the case without hearing any argument from the legal advisers to the Government. There was no explanation at all from the Attorney General’s office for the non-attendance at the hearing. However, the Court has the power under section 43 of the Magistrate Courts Act to deal with matter referred to it “with or without hearing argument,” and on that basis the Court dealt with matter without any representation on behalf of the Government.

Brief Background

The brief background to this case relates to the disbursement of payment for lost properties during the ethnic tension in the country. The plaintiff was one of those who lost property on Guadalcanal. He had an outstanding claim of $83,000.00. However the Government approved payment of $24,070.00 as per Lost Property Payments Schedule (Exh. 1). The defendant’s Committee administered the payment and paid the plaintiff $18,000.00 as shown in the second Lost Property Payments Schedule (Exh.2). This second payments schedule (Exh.2) actually shows the list of actual payments made by the defendant’s Committee. The reductions in the amounts paid to the claimants were the result of sums of money deducted from the claimant’s total approved payments. In the plaintiff’s case, the amount deducted from his total approved payment was $6,000.00 which he now claims.

Questions referred

Before the case is to be concluded in the Magistrates Court, the learned Chief Magistrate referred the following questions to this Court for determination:

1.	Is it lawful for Solomon Islands Government to indemnify individuals for losses suffered at the hands of persons acting in the pursuit of illegal activities to which the Solomon Islands Government is not a party, that is to make “lost property payments”; and

2.	If it is lawful for the Solomon Islands Government to do so indemnify such losses, is it lawful for the Solomon Islands Government to delegate its authority to others to administer payments in respect to indemnities, that is to such bodies as the West Fataleka Committee; and

3.	If it is lawful for the Solomon Islands Government to do so delegate its authority, to what extent, if any, are those holding such delegated authority entitled to change or vary the actual amounts paid from the amounts agreed to be paid by Solomon Islands Government, that is, make payments as sets out in Exhibit 2 as opposed to those payments set out in Exhibit 1.

Arguments

Mr Ipo of Counsel for the plaintiff, contended that as part of the Townsville Peace Agreement (TPA), the SIG undertook to assist persons who suffered loss and damage to their properties during the ethnic conflict. Part III Clause 2 of TPA provides: that argued counsel has given rise to a ‘legitimate expectation’ on the part of the plaintiff that the Government would indemnify him for losses which he suffered during the crisis. Counsel’s argument is premised on the principle of ‘legitimate expectation’, which has been expounded in a number of cases by the Courts beginning with the judgment of Lord Denning MR in case of Schmidt –v- Secretary of Sate for Home Affairs  where Lord Denning MR stated that the concept that a person who has ‘legitimate expectation’ flowing from the decision of an administrative body has a right to be heard. Two other cases cited by Counsel are Attorney General of Hong Kong –v- Ng. Yuen Shiu and R –v- Secretary of State. In both of these two cases, the Courts have sated that where a public authority charged with the duty of making decisions gives a promise or an undertaking, there is a ‘legitimate expectation’ that it will implement its promise. In the present case, Counsel argued that it is lawful for the Government to indemnify those who suffered loss of properties.

With regard to the second question, Counsel contended that there is justification for delegation of authority to the West Fataleka Committee. The Committee was to assist in the administration of the lost property payments. This was necessary to help achieve peace and reconciliation and the delegation of functions was lawful.

On the third question, Counsel for the plaintiff argued the Committee could only exercise powers with the delegated authority. This is to say that the Committee was only given the power to administer payments as approved by the Government in Exh.1. As such Counsel contended that by making another schedule of lost property payments in Exh.2 which shows a reduction in the amounts of lost property payments as approved by the Government, the Committee was acting outside its delegated authority.

Determination

The issues in this case are contained in the questions posed for the Court’s determination and they are also canvassed in the argument by Counsel for the plaintiff. In so far as the first question is concerned, the point raised by Mr. Ipo that the TPA created the basis upon which the Government could lawfully indemnify the plaintiff who lost properties is a strong one. Clause 2 of Part III of the TPA gives the assurance that the Government as a party to the TPA will do something to assist those who suffered loss or damage to property on Guadalcanal. Clearly as a result of that assurance, funds were made available and were paid to persons who lost properties on Guadalcanal. Upon entering into that Agreement, the Government undertakes the obligation to assist in securing payments to those who lost properties. That is an obligation created by the agreement and against which the indemnity lies in this case. The answer to the first question is, yes.

The second question relates to whether the Government can delegate its authority to administer payments in respect to indemnities to the Committee in question. The decision to indemnify for losses of properties was a Government decision authorized by Cabinet. As implementation rest with the responsible Minister, in this case, the Minister of National Unity and Reconciliation, the Government had delegated that responsibility to him. The exercise, of course, of the functions of his office pursuant to the assigned responsibility may be done by the Minister himself or by officers in his Ministry or Department: Carltona Ltd –v- Commissioners of Works, for “public business could not be carried on if that were not the case:”. However, this is not so much a question of delegation but rather it is one where the Department official is the alter ego of the Minister or the Department: Lewis Borough –v- Roberts.

In the case before the Court, following Cabinet approval for payments of loss properties, the Minister responsible proceeded to appoint Committees to deal with “Lost Property Payments” and were instructed by the Minister to “administer the payments”. The Committees were organized on constituency basis. There is no doubt that the responsibility involved in implementing the Government’s decision was an onerous one. It required control, coordination, planning, care and proper administration. A task that could and should be best undertaken by the Ministry or Department responsible through its officers, and thereby avoiding a delegation of “uncontrolled” functions.

The Members of the Committees concerned in the loss property payments were all ad hoc. Apart from being told to “administer the payments”, there were no controlling measures put in place to guide or even supervise the work of the Committees. In other words, the discretionary powers vested in the Minister in dealing with lost property payments had been allowed to be exercised by an ad hoc bodies virtually left to do what they felt liked to do. In the process, the rights and interest of individuals were adversely affected. I feel that the exercise of such power in the manner done in this case cannot be seen as valid; even more so, the purported instructions’ given by the Minister to the Committee could not be said to be a valid exercise of ministerial discretion. See Allingham –v- Minister of Agriculture and Fisheries.

It is important in this case to note also that the ‘purported’ delegation of authority to the Committee was without any or with very little control by the Minister over the work of the Committee. The clearest evidence of that was the production and implementation of the Lost Property Payments Schedules. The Cabinet approved one, but the Committee made and implemented its own payments schedule. The Minister’s ‘delegation’ was obviously no delegation at all; but even if it was, such delegation could not be said to be proper: Devlin –v- Barnett. The proper course to take would be for the Ministry responsible, having obtained approval from Cabinet, to undertake the administration of the lost property payments so that the delegated authority from the Cabinet would be exercised by the Minister and his officers with control and responsibility. To transfer such an enormous responsibility to the Committee in question (and for that matter, other similar Committees) was an abrogation of the proper exercise of the Minister’s duties and obligation. He ought not to so lavishly distribute his functions without some means of control. He did so in this case, clearly in a manner wanting. The answer to the second question is that: No, it was not lawful for the Government to delegate its authority to bodies such as the West Fataleka Committee to administer payments of lost property in the circumstances of this case. 

The answer to the third question must necessarily follow the fate of the answer to the second question. But even if I were to hold that the Government was entitled to delegate its authority to the Committee, such delegation did not authorize the Committee to change or vary the actual amounts of payments approved by the Government in Exh.1.

Questions stated are determined accordingly.

Sir John B Muria
CHIEF JUSTICE