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Samoa Ombudsman's Reports |
SAMOA
Report: Komesina o Sulufaiga (Ombudsman) Act
Section11(5) Referral matter taken on by the
Ombudsman as an own motion
investigation
HARRY CHAN TUNG
UNMANAGEABLE INDEBTEDNESS
TO DEVELOPMENT BANK OF SAMOA
Introduction
This is the case of a young man who set out to advance his welfare and that of his family by taking advantage of opportunities and facilities put in place by the State for the economic development of Samoa by its citizens. An unusual turn of events drove him instead to financial ruin and total disillusionment about Samoa, the fairness of governance in it and as a place to live. Depressed and demoralized by his experience he is presently overseas for peace of mind and resumption of studies in the hope of again becoming a productive individual.
Background
Mr Harry Chan Tung intended through intelligent application, hard work, and investment opportunities to add to the material gains his father had managed to achieve. He discontinued Civil Engineering studies in New Zealand at the instigation of his father to become a farmer and entrepreneur in Samoa. He was 25 years old.With loan finance from the Development Bank he began in 1994 to farm fifty acres his father had leased at Tapatapao from WSTEC. His father supported the venture by personal guarantee and a 2nd mortgage over family property at Pesega, the site of his supermarket business. Harry made good early headway raising pigs and poultry for the local market. He assimilated "knowhow" from wherever he could find it, consulted available expertise on his projects and adopted an integrated approach in his farming activities.
One consultant source was a retired University of Queensland's Gatton College lecturer who visited Samoa in 1995 under the Australia Expert Service Overseas Programme (AESOP). He helped Mr Chan Tung through educational correspondence and tuition in Tropical Animal Husbandry, feed formulation and pig artificial insemination to improve the genetics of breeding stock. Mr Chan Tung followed up this technical exposure by visiting Queensland in August 1996 to participate in practical exercises and farm visits at Gatton College and other farms in the Toowoomba area whose operations were similar and relevant to Samoa.
Mr Chan Tung had leased two 100 acre blocks at Fiaga, Aleisa. On ascertaining that local "aloalo" timber made exceptionally high quality fence posts, he acquired and stockpiled supplies of the wood to fence his newly leased 200 acres to raise cattle. Mr Chan Tung started with locally bred animals from Savaii for which he exchanged a truck he owned but soon was able to acquire imported breeding stock through the Department of Agriculture's livestock programmes. His herd grew to his farm's maximum capacity of about 200 breeding cattle and 100 calves.
Mr Chan Tung's calibre as a farmer showed through in his doing of things that were not run of the mill, such as utilizing methane gas from animal waste to power the drying of available useable protein remnants to make animal feed.He bought 2 alia boats and earned good money from fishing.
The financial success of his agricultural and fishing ventures enabled him to buy freehold properties. He acquired a one acre property at Tiapapata and three ¼ acre properties at Fugalei, one of them with a house. The Fugalei properties were acquired with a view to better facilitating his fishing operations.
A Sequence of Particular Interest
Towards the end of 2002, being on top of his agricultural ventures and loan repayments, Mr Chan Tung opted for opportunity that came his way to expand his operations, improve his asset base and reduce bank indebtedness by acquiring high potential freehold land and additional leasehold farmland. These acquisitions were:
The leasehold at Nuu became available when its poultry farmer owner at the time and Development Bank debtor wanted to quit. The Development Bank encouraged Mr Chan Tung to take over the operation. The Bank helped to facilitate the transfer of the Samoa Lands Corporation lease for a 20 plus 20 year term for the new buyer. The long term lease was a collateral asset for the Development Bank advances to Mr Chan Tung. This was formally accepted by SLC.
Nuu was an attractive proposition for Mr Chan Tung's long term development plans, only as a "whole land property" lease, as he clearly pointed out in writing at the outset while the Development Bank was encouraging him to buy the operation. He made this clear because there was some talk at the time of subdividing the property to smaller lots.
The Fugalei property was an investment in immediate value through subdivision, and an opportunity for Mr Chan Tung to expand his asset base beyond leaseholds. He saw an opportunity also to integrate a seaside restaurant with potential crab supply possibilities into his agricultural operations.
To buy the 4 acres he had to utilize working capital, sell one of his revenue earning fishing alia, take over as a term loan the vendor's indebtedness at one of the local commercial banks and had also himself to go into overdraft at a second commercial bank. He intended to immediately subdivide the property and to sell parts of it to clear his major bank loans.
To his dismay, the valuable 4 acre freehold acquisition he had so extended himself to the limit to secure was suddenly frozen by the stroke of an official pen, a stroke inexplicably in contradiction of earlier official actions in express support of all that he was doing. The Registrar of Lands by caveat had stopped all dealings in the said land. Mr Chan Tung claims to have had a difficult time to get the CEO to even meet with him to explain the reason for the caveat.
Mr Chan Tung was left cash-strapped, vulnerable and exposed to Bank indebtedness which, by its nature, grew unrelentingly with the passage of time. He had made repayments of $6,000, $7,000, and $14,000 in October, November and December 2002 to the Development Bank. These were the last repayments made from his project proceeds.
A long anxious period of interaction with Government by way of pleas to remove the Registrar's caveat, correspondence, face to face dialogue and waiting under stress, ensued for Mr. Chan Tung.
Although MNRE as seen by Mr. Chan Tung was unapologetic and dismissive of his plight many in authority saw injustice in his situation as a victim of circumstances and were sympathetic. A practical remedy however, just did not emerge. Encouraging possibilities of compensation or some other alternative solution were mooted in late 2004/2005. Nothing concrete emerged from these but even so, as late as December 2005, bolstered by serious interest from a religious Organization with a special project in mind to pay "big bucks" ($4.2 million) for the Fugalei land, Mr Chan Tung was still hopeful of having the whole matter behind him and re-starting his agricultural business. His correspondence with the Banks certainly indicates this.
He had sold what was left of his cattle at Fiaga in August 2004 to stay afloat and to finance further improvements at Nuu. This was additional to earlier improvements he had made to Nuu when he took it over which included rehabilitating and reappointing the animal housing facilities, planting of trees and the fencing of the entire leasehold property using 'aloalo' posts.
With limited resources depleted even further by legal fees Mr. Chan Tung was not able to operate the poultry and piggery farms to full stock capacity. This affected his ability to meet Bank repayment schedules. He desperately needed to sell the Fugalei asset in which his money and now his future was tied up.
He reluctantly sold his poultry farm together with 10 acres of the Tapatapao land in November 2005 to keep up loan repayments to the Development Bank and to allow him capacity to start a meat processing project, piggery and a small slaughter house for chicks, pigs and cattle at Nuu. He had already purchased the bulk of the equipment necessary for the meat processing operation and he had successfully completed a month-long FAO regional training course in Meat Processing Technology held in the Phillipines in April/May 2003.
After months of discussions and pleading with the Government authorities to lift the caveat with some encouraging indications from highly placed officials, the Registrar finally lifted the caveat but cancelled outright the registration of Mr Chan Tung's conveyance. The Ministry did not bother to communicate this change to Mr. Chan Tung.
A civil claim by Mr. Chan Tung for damages was struck out on 31 October 2005. Section 38 of the Land Registration Act 1992/1993 provides a statutory bar to proceedings of the kind instituted by Mr Chan Tung against the Government and only a case based on "wilful misconduct" can be brought against the Registrar or his subordinates. The Court expressed the tentative view in the judgment that perhaps the proper action for Mr Chan Tung to have brought was a motion for judicial review. Such a motion was subsequently filed and eventually heard in January 2011.
Meanwhile, in early 2006 Mr Chan Tung noticed surveyors working at his Nu'u leasehold. On inquiry at SLC head office he was told that SLC had decided to take back seventeen acres from his twenty-six acre lease. SLC ultimately made good its intention and unilaterally reduced the acreage of the leasehold. The area taken back by SLC was to be subdivided as residential plots.
As the planned projects for Nuu required space as well as significant distance from any residential neighbourhood because of stench that the activities would generate, the unilateral move by SLC meant that Nuu was no longer viable for development.
With time passing, things were inexorably closing in on Mr Chan Tung. There were no more realistic options to meet loan interest and repayments except the sale of the 4 acre Fugalei land. The outcome of the judicial review Court hearing was of crucial interest to Mr Chan Tung and also for the Banks with whom Mr Chan Tung had been pleading since the caveat to wait with him for at first freedom to deal with his land, but eventually for the land itself to be restored to him.
The wait became too long for one of the commercial banks. It sold Mr. Chan Tung's four properties at Tiapapata and Fugalei in 2008 and kept the proceeds.
Mr. Chan Tung and his family left for Australia in the beginning of 2009. His wife had been offered a lecturing and research job with the Australian National University. Harry resumed engineering studies which he was able to successfully complete at the end of 2012.
When Harry left for Australia Mr Chan Tung Snr. tried as best he could to deal with the Development Bank loan which had become somewhat overgrown from all the waiting. It threatenedforeclosure on the family property at Pesega. Mr Chan Tung Snr. was able to make payments for a period since November 2009 but the loan had turned, figuratively speaking, into something of a runaway train. Mr Chan Tung's loan balance with the Development Bank stood at $1,356,170.82 as at 31 March 2013.
On 12 October 2012 the Supreme Court ruled against Mr Chan Tung and in favour of the Registrar having the power to correct the Land Register in the manner he had done back in 2003. The Court also very pointedly noted that the land purportedly sold to Mr Chan Tung as part of the Trood Estate was covered by the sea at high tide and therefore public land and not freehold land.
Trood Estate
Court Grant 909 of 14 April 1897 declared Thomas Trood the proprietor of land described in land claims 2345, 2346 and 2347. Approximate areas given in the individual claims totalled 112a. 0r.17p. Acreage was not mentioned in the wording of the Court Grant itself. There has been much argument, notably since 2003, as to what the surveyed acreage of Court Grant 909 ought to be.
Description in the claims used landmarks, names and rambling boundary explanations. These boundaries as observed by the Supreme Court were clearly not survey boundaries.
Subsequent to Court Grant 909 government surveyors prepared Flur Plan IV depicting the boundaries of Court Grant 909 and the adjoining lands; and divided Court Grant 909 land into four parcels 42, 53, 54 and 97/72. Flur Plan IV was registered on 16 November 1904 in German Samoa land records as Grunsbuch Baus I Blatt 106. The registration of Court Grant 909 was transferred to the Land Register volume I folio 24 on 10 August 1921 under New Zealand administration.
Court Grant 909 remained for forty-eight years on the land records as depicted on Flur Plan IV but not surveyed or marked out on the ground.
Translating Flur Plan IV to defined land areas on the ground happened in stages.
Survey plan 2073L prepared in 1945 quantified an area of 11a. 2r.15p. Subdivision plans 3104 and 4444L done in 1981 quantified further
areas of 4a.2r.19.8p and 8a.3r.28.8p respectively. These three surveys, initiated by beneficiaries, were of the most inland and closest
to the road parcels of un-surveyed land depicted on Flur Plan IV. It is apparent from the scheme plan that at the time the most recent
of these surveys, Plan 4444L was done,the seaward part of the area depicted was swampy and under water at high tide. Two streams,
Vaimea and Fugalei Streams however, provided logical and natural boundaries for that approved survey.
The most ambitious survey of Flur Plan IV was a definition survey undertaken ten years later in 1992 on the instructions of the then Public Trustee. This was a survey of the outer parcels of Flur Plan IV towards the sea. Definition Survey Plan 5561 quantified a total area of 54a.1r.40p which was conveyed by the Public Trustee to Theresa McCarthy in 1993.
Survey Plan 5561 and Survey Plan 444L were declared invalid by the Supreme Court on 9 September 1996 as they were incorrect and encroached on neighbouring customary land.It is understood that to date this situation has not been resolved.
The above-mentioned five survey plans all together quantified and attributed a total area of 79a.2r.23.6p to Court Grant 909.
Definition survey plan 6896 for an additional 4a.0r.00.6r was approved by the Ministry on 5 November 2002. This land was later sold to Mr. Chan Tung.
Definition survey plan 6981 for a further 28a.3r.03.7p that would have brought the total acreage of Court Grant 909 to 112a.1r.27.9p was submitted on 24 February 2003 but was rejected by MNRE. The Supreme Court upheld the decision of the Ministry noting that the area defined in the survey plan was open sea at high tide with only a very small part of it exposed as soft mud flats during low tide.Therulingspelled out well known law that land lying below 'the high water mark' belong to the State.
The Court made clear that whatever may have been the actual situation of the land on 14 April 1877 (the date of the Trood Court Grant) the well known 'high water mark' common law principle together with the equally well established doctrine of 'accretion and erosion' rendered all land in the Fugalei vicinity lying below 'the high water mark' crown or state land. The Court said that this had been the case since, at latest, the Samoa Act 1921 and confirmed explicitly for modern Samoa in s104 of the Constitution of 1962
The Court while inspecting the site of the dispute made the following observation of Trood Estate land that had already been surveyed, registered, subdivided and legally conveyed to members of the public.
"it was obvious that all or nearly all of the land between the main road at Fugalei and the sea where the land in plan 6981 is located must have been covered with mangroves. Parts of that land have obviously been reclaimed and there are buildings constructed on those parts. A road has also been built on what is clearly reclaimed land from the main road at Fugalei close to the sea where the land in plan 6981 is located. It was also obvious during the site inspection that much of the land next to where the land in plan 6981 is located is still covered with mangrove growth. What is not clear is how far the sea used to come inland in the past towards what is now the main road at Fugalei."
The Chan Tung Fugalei Land Purchase
A Mrs Theresa McCarthy offered 4 acres at Fugalei for sale. The land adjoined the outermost seaward fringe of already subdivided Trood Estate land. The 4 acres in question was mangrove swamp. All of the land was seen by the Supreme Court to be under water at high tide and as the Court said, an ordinary observer "at high tide would think that it [was] part of the sea."
The Registrar of Lands would reveal in Court proceedings held in January 2011, that approved survey plans showed this 4 acres of apparent sea, in part to comprise land that were "Coastal "and"River Bank" reserves even though (1) there is no river bank in sight at high tide and (2) the "high water mark" which one would expect to see on the seaward side of a coastal reserve is obviously very far inland from the spot. This is a reflection of general fictitiousness that surrounds Survey Plan 5561 arising from the fundamental fiction that it depicts dry land. This aspect is further explained below.
At any rate, in spite of the scheme plans just referred to in the Ministry's possession and the observable fact of the area being sea, a definition Survey Plan 6896 approved by the Acting Director of Lands on 5 November 2002 declared the depicted area to be 4. 0. 00.6p of land belonging to Theresa McCarthy.
A legal description provided by the Ministry in writing described the land as:
"All that piece of land containing an area of one point six two naught four hactares 1.6204ha (4a.0r.00.6p) more or less, situated at Fugalei near Apia in the District of Tuamasaga described as Parcel 627 being parts parcel 519, 581, 450 and part Court Grant 909 Flur IV Upolu and part of the land registered in Volume 31 Folio 318 of the Land Register of Samoa as the same is more particularly delineated on Plan 6896 deposited in the Office of the Director of Lands, Apia."
Mr Chan Tung bought the four acres so described from Mrs McCarthy in November 2002. The Deed of Conveyance was executed on 7 November 2002 and entered in the Lands Register on 3 December 2002 by the Registrar of Lands.
In keeping with Mr Chan Tung's intention all along to subdivide the property, Subdivision Plan 6965 naming Mr Chan Tung as the owner of the land was submitted to the authorities for approval. The Plan was approved by the Director of Lands on 29 December 2002.
The Development Bank Board agreed on 6 March 2003 to take mortgages over parcel 630 (½ acre) and parcel 631 (¾ acre) of the approved subdivision as replacement security Deeds of Conveyance for the release of Mr Chan Tung's other Fugalei property which he intended to sell to reduce bank indebtedness. The National Bank of Samoa also was to take a mortgage over parcel 629 (1 acre) from the same sub-division.Mr Chan Tung was in the process of stamping these deeds when he was advised on 1 April 2003 that a caveat had been placed on the land by the Registrar of Lands. In due course the Registrar would cancel the registration altogether.
As already indicated the Court in October 2012 confirmed the Registrar's powers to correct the Register as he had done back in 2003.
Actions of MNRE
The Ministry now known as the Ministry of Natural Resources and Environment (MNRE) is, among other things, repository and keeper of official records pertaining to lands and surveys. It authenticates survey maps and maintains the Register of Land ownership. Up until 2008, title to land in Samoa passed with the execution and delivery of Deeds of Conveyance.
With the approval over the years of what is now MNRE, a large mangrove swamp area west of Fugalei road has been defined on approved survey maps into parcels of land, subsequently subdivided into sections and conveyed to individual owners. In May 1992 an area of 54a.2r was processed and authenticated in this way to be added to previously surveyed and authenticated Trood Estate land under Court Grant 909.
In exactly the same way an area of 4a.0r.00.6p was processed in September 2002 also to be added to Court Grant 909. The Ministry approved the necessary surveys, provided the legal description of the new addition and signified its endorsement of the whole authenticating process by accepting Harry Chan Tung's Deed of ownership for registration on 3 December 2002.
The Ministry approved a subdivision plan of the land, submitted on behalf of Mr Chan Tung on 20 December 2002.
On 30 March 2003 the Ministry placed a caveat on the land. Much later, the Ministry decided to reverse itself completely on the matter of the 4 acre addition to the Trood Estate. It cancelled the registration of Mr. Chan Tung's conveyance.
This huge shift flew in the face of past MNRE actions and the survey plans that the Ministry had authenticated. MNRE, at lightning speed, had come to terms with the realities of this land that the Ministry had at long last come to embrace. Its actions were consistent also with a belated emergent concern for conservation in the area. These were laudable objectives.What was not laudable or reasonable was the Ministry denying responsibility for the flip flop situation and turning its back on the plight of a victim of that situation.A victim moreover who had relied on the presumption that the Ministry had properly performed its official functions. MNRE compounded its mistreatment of the citizen by its callous disregard of his standing as a bona fide purchaser for value without notice.
What is the purpose of a Register of Titles if not to register good legal title?The title that was at issue was not that of Theresa McCarthy but Harry Chan Tung's. The right of a bona fide purchaser for value without knowledge to a good legal title is clear in law. The fact of the land (or sea ) in this case having been defined in survey plans as "coastal" or "river bank" reserves may have been regarded by MNRE as an obstacle to such title. It has to be seen however that while the "land" in question may in part have been public reserves on paper, there is no denying the "bogus" or mythical grounding of such "reserves"and the moral weight of the citizen's claim to ownership.
Such an "obstacle" should it have substance should never be takenby officials as a technicality to hide behind but a matter to be dealt with reasonably and fairly within the law.
As Mrs McCarthy had sold Mr Chan Tung land that didn't belong to her, MNRE told him to get his money back from her. Recourse to Mrs. McCarthy however, may arguably have been, in this case,the just lot of the rightful owner (the State) and not that of the bona fide purchaser.
The Ministry also told the victim to sue his lawyer for not discovering the true position with regard to the land he supposedly had bought; that in this matter he had been led up the garden path. This is the equivalent of the Ministry collaborating by its actions in leading the man up the garden path and in actually constructing the garden path itself for unsuspecting victims, and then saying to the man: "Don't blame us. Blame your lawyer for not seeing through what we were doing; even if we ourselves were fooled by what we were doing."
All in all, the Ministry did not put the problem honestly into proper perspective for the citizen it was dealing with. He was not told at any time what he needed to do, or what to rectify, in order to remedy matters. The simple reason for this is that there was nothing for the citizen to do because he had done nothing and was quite faultless in the whole thing. The problem had been of the Ministry's making but it had the power to shift it and to foist it upon the citizen. The citizen found himself in a fight with the Ministry for reasons that didn't seem to him to have anything to do with him. He was pushed into a long costly court battle he did not seek or want and could not win.
In defending its act of deregistration in Court the Ministry focused on technicalities such as lack of proper correspondence between the entry pertaining to the Chan Tung registration and the record existing in the register.It cited errors in the land's legal description which had been authored by the Ministry itself. A major error pointed out was the inclusion of land that had been earlier defined as coastal or river reserves in survey scheme plans kept by the Ministry and therefore belonged to the state and not the vendor.
It was not pointed out or stressed however that all of these facts would have been clear to the Registrar in his capacity as the Director of Lands if the survey plans for the 4 acres had been considered competently and diligently for him when they were approved.If MNRE had not approved the Survey Plans for the very good reasons they so meticulously pointed out in Court and others not mentioned, the purchase by Mr Chan Tung would not have been possible.
For Harry Chan Tung, both ownership of the four acres and the land itself effectively vanished when registration was cancelled. The dispute assumed by many to be a genuine legal problem requiring court intervention was not a genuine disagreement over issues at all.In reality, incompetence, lack of diligence or perhaps something even worse, within MNRE was at the heart of the problem here. The Ministry, seemingly not willing to admit to any of these shortcomings was fortunate to have a way out in the form of the Registrar's powers to correct the Register. It was able by this "magic wand" to transform the now unwanted situation it had created into a "mirage" of the past, a mirage that Harry Chan Tung could only helplessly watch evaporate, and his fortunes along with it, before his very eyes. The Ministry was happy enough to simply let him stew in "his own" bad luck.
Why did MNRE Yoyo?
Why did MNRE yoyo in this matter? Why did this government agency in the performance of its specialist professional functions behave in such a strange way in land survey matters which ought normally tobe determinable logically and objectively?
The answer is not difficult to fathom. A fundamental problem is the fact that definition survey plan 5561 of May 1993 did not take into account at all the natural and legal separation of land from sea. The general expanse which is the open sea is labelled in the plan but the high water mark is not indicated anywhere on Survey Plan 5561. The sea is separated from the supposedly dry land in subsequent subdivision survey plans by prescribed reserves which are themselves technically sea. This "bogus" separation exists only on paper.
The truth is simple. The separateness of Trood Estate land from the sea is fiction. It is pretence and a fiction that is inherent in Survey Plan 5561. The fact of the matter is that sea and much of the Trood Estate in Survey Plan 5561 were one and the same thingfrom the outset, i.e. sea. It is no wonder that the Supreme Court in the case of McCarthy v Attorney General[1] remarked of land falling within survey plan 5561: "What is not clear is how far the sea used to come inland in the past towards what is now the main road at Fugalei". It is no wonder also that there have been repeated efforts on behalf of the Trood Estate beneficiaries to propose additional acreage out to sea for the estate.
One such effort was the definition survey plan 6896 for the four acres sold to Harry Chan Tung. Much of this land is exposed at low tide and has thick mangrove growth. When the definition survey plan 6896 for this 4 acres was submitted for approval it would have been on its face a reasonable addition to the Trood Estate. After all, how could it be distinguished from some other mangrove covered land already included in the estate and which no one can deny had also been under water at high tide? Present day observation of the site is revealing.
The survey plan 6896 was approved and the 4 acres defined therein eventually sold to Mr. Chan Tung.
Not long after this approval, three months twenty days on 24 February 2003 to be precise, another definition survey plan quantifying a further area immediately beyond the land just sold to Harry Chan Tung was submitted for approval as further addition to the Trood estate. The 4 acre addition that had just been approved it seems was serving as the thin edge of the wedge.
The newest definition survey plan quantified an area out to sea of 28a.3r.03.7p. That plan also, almost got through the approval process. It was in fact at first approved but a closer more critical look by the Ministry brought home to it the fact that matters were moving truly to the ridiculous. There was just no denying from physical observation that the ball game had shifted into open sea.
On what basis however could land included in the new proposal be distinguished from the recently approved 4 acre land now owned by Harry Chan Tung? The Ministry saw that there was no basis and, pressed in addition by its own emergent conservation concerns, decided that both had to go.
The question arises though of how land in earlier subdivisions which clearly were under water can be distinguished from Mr. Chan Tung's land which has now been disallowed. Shouldn't those transactions then be reversed also? Why, in all fairness, should they be treated differently?
What of Trood Estate land earlier conveyed to other owners?
When action that is defective in a fundamental way cannot be reasonably reconciled to what is known to be the correct position, the logical step to take is to negate or reverse the wrong action. In reality however, this may not always be possible, reasonable or desirable in public administration.
A reasonable aim would be to reverse where it is possible and feasible to do so without causing undue harm to people who have acted in good faith.
The passage of time is an important factor which in itself could conceivably be considered sufficient reason in some circumstances to allow sleeping dogs to lie. More often than not however, time facilitates events or activities to occur that make it impractical, unreasonable or simply not worthwhile to turn the clock back.
Twenty years have elapsed since the Fugalei swamp was marketed as land plots. Although some plots remain untouched today, a great deal of reclamation has been carried out on others. Permanent well constructed buildings have been built on a significant tract of land. Roads also have been constructed in the area. The reclamations and road construction have made it impractical if not impossible to reverse the damage or the destruction of large sections of the mangrove swamp.
Even if, for argument's sake, it could be done, too much has happened since 1992 to contemplate a general negation of conveyances made as a consequence of Survey Plan 5561 without unreasonably affecting many who have acted in good faith. Harry Chan Tung also acted in good faith. His situation happened to be easily reversible but he should not have been left unduly disadvantaged when it was considered appropriate or officially expedient to negate his conveyance. MNRE erred not so much in what was done but in what was left undone. This is not the first time that a problem such as this has arisen in Samoan public administration.
It was discovered in late 1975 that legal authority was lacking for the conveying of government land that had been subdivided in a number of subdivisions and allocated to individuals by the Land Board. It was decided to treat the subdivisions differently. The earliest subdivisions were already well settled and improved. One very large subdivision at Tiavi had been approved and implemented only some two years earlier and no significant improvement had been made to land. Only one individual had paid for his land in full and a conveyance actually executed for it. It was decided not to proceed with this latest subdivision. The opportunity that had been given to buy plots in this subdivision was withdrawn and leases given instead to the individuals concerned. The individual who had paid in full was refunded his money. Conveyances for all other subdivisions were regularized by authorizing legislation.
Why did Harry Chan Tung go out on a limb to buy a chunk of sea?
Mr Chan Tung put himself on the financial cliff edge in order to acquire the 4 acre property offered to him by Theresa McCarthy. He did so because it was a sure thing. It was obvious to him, and to anybody else for that matter, that the asking price of $480,000 could be easily recouped simply by sub-dividing and selling a part of the property. He saw the purchase as very much the move he needed to make to put his affairs on a sound financial basis and to release the family property that his father had pledged in support of his operations.
He did not think that anything could go wrong with the purchase. He understood the land to be part of the Trood estate and owned by Mrs Theresa McCarthy. He saw the approved survey plan for the parcel showing Mrs McCarthy to be the owner as well as the legal description of the land that had been provided by MNRE.
At physical best the parcel was mangrove swamp land at low tide. It was completely covered with water at high tide. He had bought two quarter acres adjoining each other of Trood Estate land back in 2001 and they were not really dry at any time. The new land did not look all that different from the land he already owned except that it fronted the open sea. He had bought the two swamp land sections he already owned also from Theresa McCarthy and those two sections were only a stone's throw from the 4 acres he was contemplating buying now. In the circumstances he saw nothing unusual in the transaction and he had no reason to think that anything could be wrong or go wrong.
He was anxious to come up with the purchase price quickly because another person of obvious means was also interested in the property. It was in these circumstances that he applied his reserves of working capital and pulled out all stops to succeed in the acquisition.
He put himself truly at the cliff edge financially, for the property. Unfortunately for him, the unimaginable happened. The certifications and approvals of the Ministry of Natural Resources and Environment which allowed the purchase to proceed at all were suddenly no longer supported by the Ministry itself. By de-registration, the Ministry moved instead, to prevent him from dealing in or realizing any value from the land. Over time he lost everything, and more.
Conclusions
It is worth taking a moment to reflect on this complex case and the consequences of the actions of MNRE. In Harry Chan Tung we had a person with a demonstrated desire to contribute to Samoa through his well run businesses and his commitment to introducing new technologies and knowledge to the way in which processes in his chosen industry were being carried out. He was the employer of more than 20 people on a regular basis and large groups such as church youth on occasional tasks. It is shocking that merely dealing with, and relying on a government ministry in the way all citizens must when buying land, should cost such a man his livelihood, his accumulated assets and in turn threaten those of his father. The livelihood of the people he employed was also affected.
This investigation showed up human shortcomings in the exercise of power that are sufficiently prevalent in the public sector to be worrying. Too often public servants vested with power conduct themselves as if such power were personal fiat to be dispensed in imperial fashion rather than solemn obligation and duty to advance or safeguard the public interest. They tend furthermore, to look merely upon the legality of their actions as the only aspect about which they need to be concerned.
In the Chan Tung matter, the Ministry was motivated in the public interest to reverse what was wrongly based while it was still reversible. In doing so however, the things MNRE should have done, they did not. Everything they should not have done, they did. High motives notwithstanding, they were wrong in riding roughshod over the citizen and ignoring totally his situation as a good faith purchaser of the "land".
Convictions they may have held of the general good justifying disregard of an individual's reasonable entitlements were with respect, misguided. There is much in the notion that "if you protect the individual, you protect society"[2].
In the end the Ministry has prevented interference with land they believe from a conservation perspective should not be touched but they have achieved this by highly questionable means.
The Ministry should have owned up to errors straight away and rectified the situation as it affected the citizen concerned in the public interest and in a fair and reasonable manner. Having failed to do the right thing at the outset, they stuck obstinately to their guns for ten long years. Approaches from Mr Chan Tung or from his lawyers during this time to settle matters by agreement were not taken up.
The Fugalei swamp, even from just looking at what's left of it today, undoubtedly was a large area of vigorous mangrove growth that was open to the strong and extensive movements of the tides. It must originally have been a treasure of a natural resource from the perspective of perpetual fish and marine life replenishment.
It is clear from observation that Definition Survey Plan 5561 ignored the line of high water mark and surveyed large tracts of mangrove swamp as dry land along with whatever little dry landmight have been found in the inland fringes of the area.This notorious document and what it represented received scant assessment when it was submitted to the government for approval. It was signed on 25 May 1992, by the Surveyor who did the job and the Public Trustee who had requested the job. Departmental processing of the survey planbegan on 17 June and the plan cleared for approval the next day on 18 June 1992. The Director of Lands for some reason did not approve the plan until almost a year later, on 25 May 1993.
The error in 1993 was failure to exercise power vested in the then Department of Lands, Survey and the Environment to safeguard the public interest. Approving, instead of rejecting Definition Survey Plan 5561 allowed the marketing of public wetland by a private individual or individuals for own gain. It also resulted in the denial to future generations of an invaluable replenishing resource for fish and other marine life.
The errors of 1993 point, at best, to lack of diligence and incompetence in the performance of the Department's mandate for lands and surveys. From the perspective of the Department's responsibilities for the environment, the action in question was sheer dereliction of duty.
Mr Chan Tung's lease at Nuu was reduced from 26 to 9 acres. There has been no satisfactory explanation of Samoa Lands Corporation's unilateral action in this matter. As it turned out Mr Chan Tung did not survive his treatment by MNRE to feel the impact this SLC decision would no doubt have had on his operations. This again however reflects badly on the exercise of power by those entrusted with it in public office.
Consequences flowing from the failure of officials to act as public servants should act can be considerable. Public Servants are employed specifically to serve the people of Samoa as a whole and as individuals. The level of failure to do so in the situations examined in this investigation is staggering.
Recommendation
There are two wrongs from past actions of MNRE that need to be addressed. The oldest of these is the wrongful disposal of a valuable natural resource that should have been conserved. It is not possible to fully right this wrong. It is considered a reasonable responsibility for Government however to establish by proper study what can usefully be retrieved of the Fugalei mangrove swamp and to conserve it for future generations. Government could do this if it wishes by means of the Taking of Lands Act. It would naturally observe the requirements of the Constitution with regard to compensation for the bona fide owners of the lands involved.
The situation with regard to any land still in the possession of Theresa McCarthy may be different. She was after all not a purchaser for value as she was simply conveyed the land by the Public Trustee back in 1993.
Mr Chan Tung's treatment at the hands of the Ministry of Natural Resources and Environment has cost him a great deal in financial and human terms. No attempt will be made here to tally these things as the Ombudsman is not in the compensation business. Noting however the direct involvement of Government's agents in causing Mr Chan Tung's situation and woes, the Ombudsman would urge Government, with a view to contributing financially on an ex-gratia basis, to commit to a genuine conversation with Mr Chan Tung, the Development Bank and SLC as appropriate to deal with Mr Chan Tung's indebtedness to the Development Bank, and if possible and in a manner agreeable to all, to place him on a footing where he could begin again to be a productive person.
A way forward presents itself should Government choose to salvage the mangrove swamp and to purchase identified plots for that purpose by way of the Taking of Lands Act. The land owned and sub-divided by Mr Chan Tung in 2002 will undoubtedly be wanted for conservation. In the taking of lands exercise, fairness and everything else point to the rightness of treating Mr Chan Tung as if there were no problems with his ownership of the land and of paying him on an ex-gratia basis for the 4 acres he purchased and subdivided in 2002 and for which he holds the de-registered Deed of Conveyance.
I recommend as above.
Maiava Iulai Toma
Ombudsman
6 May 2013
[1]Ibid
[2] Sir Guy Powles, last colonial Administrator of Samoa, speaking at his swearing in as the 1st Ombudsman in the English speaking world. Wellington, NZ.30 September 1962
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