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Kwong v Minister of Lands & Agricultural Development [2025] KIHC 120; Civil Case 94 of 2019 (18 August 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)


CIVIL CASE: 94 of 2019


In the matter between:


TEMAUA KWONG Plaintiff


And


MINISTER OF LANDS & AGRICULTURAL
DEVELOPMENT 1st Defendant


And


REEI TIOTI 2nd Defendant
As Director of Lands


Date of Hearing: 25 February 2025
3 & 10 March 2025


Counsel: Ms. Botika M. McDermott for the Applicant
Mr. Mikaere Kakiarerei for the 1st & 2nd Respondent


JUDGMENT


AMTEN J., The plaintiff, Mr. Temaua Kwong, seeks specific performance and injunctive relief, alleging that a Lands Department officer verbally assured him that, upon payment of outstanding sublease arrears on his late father's expired sublease, a new sublease would be issued in his name. The defendants deny any binding commitment, arguing that sublease allocation is governed by statutory discretion and administrative review.

  1. Factual Background
  1. Mr. Kwong’s father previously held sublease 373/95 over LOT BE.53, which expired in 2005. Despite the lapse, Mr. Kwong and his siblings remained in occupation.
  2. In 2019, the plaintiff paid $6,069.05 in arrears after being advised by Ms. Teraumwemwe Noere, a staff member of the Lands Department, that a new sublease in his name could be issued if arrears were cleared.
  3. Relying on this representation, the plaintiff paid $6,069.05 in arrears over three separate transactions. The application was processed, but the Sublease Allocation and Advisory Committee (SAAC) withheld approval, citing a prior High Court judgment involving the plaintiff and his siblings over the same land. The plaintiff was advised to resolve the familial dispute first.
  1. The Plaintiff’s Case
  1. Counsel for Mr. Kwong argued that the assurance given by Ms. Noere constituted a unilateral contract: the promise was made, and the plaintiff performed the required act, which is the payment of arrears, thus binding the defendants to issue the sublease. The plaintiff maintained that the subsequent preparation of the survey diagram and internal processing signaled administrative endorsement of the agreement.
  1. The Defendant’s Case
  1. The defendants refuted the existence of any enforceable agreement. They emphasized that Ms. Noere’s statements were advisory and conditional, not contractual. Her affidavit clarified that she merely indicated the possibility of renewal, contingent on further review. The defendants stressed that SAAC, not Ms. Noere, holds the authority to recommend sublease approvals, and that the Minister’s endorsement is discretionary under the Native Lands Ordinance (CAP. 61) (the “Ordinance”). They also noted that the plaintiff failed to disclose a relevant High Court judgment that undermined his claim to the sublease.
  1. The Issue
  1. Arising from both parties’ positions, the issues for determination are:
  1. The Law
  1. Like any other contractual remedies, specific performance can only exist when there is a valid and enforceable agreement or contract. This is what the Supreme Court of Papua New Guinea in the case of Augwi Ltd. v. Xun Xin Xin[1] said, and which is the law elsewhere:

“..as a general rule, a finding by the Court that a valid and enforceable contract for the sale of land is, at law, a precondition to the grant of the equitable remedy of specific performance.”

  1. It went on to say:

“Specific performance, of a contract of sale of land, as an equitable remedy, must follow as a matter of course except where the circumstances of the case fall under any of the recognized exceptions to this rule.”

  1. As Dean J pointed out in Kern Corporation v. Walter Reid Trading Pty Ltd.[2], at p. 191,

“..the extent of the purchaser’s interest is to be measured by the protection that equity will afford to the purchaser. That is really what is meant when it is said that the purchaser’s interest exists only so long as the contract is specifically enforceable by him.”

  1. In the New Zealand text of Sale of Land (2000)[3], the learned author states at 10.02, p. 299:

"There must be a contract, either directly for the sale of the land or for an option to purchase, such that the purchaser can take all of the necessary steps to obtain specific performance of that contract, the vendor cannot legally prevent those steps being taken, and the circumstances are such that, if the purchaser did take those steps, specific performance would not be unavailable for jurisdictional as opposed to discretionary reasons. It is the ultimate ability in equity to compel the vendor to transfer the estate or interest which gives the purchaser the equitable estate or interest."

  1. A similar approach can also be found in the English Common Law.[4] Unfortunately, we do not have cases of our own on the subject. If there are, they have not been reported.
  2. Simply put, an action for specific performance can only be found where an enforceable contract between the parties existed.
  3. Like any other equitable remedy in contract law, its nature is discretionary; it is up to the discretion of the court whether making an order for specific performance is appropriate in the circumstances. The rationale is simple; it is meant to compel a party to perform their obligation, that is, to make them do what they promised they would do in the first place.[5]
  4. As an equitable remedy, the claimant must come with “clean hands”. The decision of the Court of Appeal in Brink’s Mat Ltd v Elcombe[6], is widely acknowledged as the primary authority on this matter. This case delineates the obligation of an applicant to provide complete and honest disclosure of all relevant facts, including not only those known to the applicant but also those that should have been known had appropriate inquiries been conducted. The court, rather than the applicant or their advisors, determines the materiality of the facts. Furthermore, the case clarifies that a breach of this duty does not automatically result in the discharge of the order; instead, the court possesses discretion, although it will be vigilant to ensure that no party retains an advantage after failing to uphold their duty of candour.
  1. Preliminary Observations
  1. Ms. Botika’s argument stems from the principle of unilateral agreements, where one party makes a promise in exchange for the completion of a specific act by another. Once the promisee performs the specific act, it means the offer has been accepted, and the promisor is then legally bound to fulfill his promise. I concur that this is a true statement of the law.
  2. It is her submission that a binding agreement was created with the plaintiff, as there was a promise from the defendants that on the settlement of his (the plaintiff’s father’s) outstanding sublease arrears, a new sublease would be made in his name. The plaintiff had completed this specific act; he had paid the arrears on three different occasions, totaling $6,069.05. The defendants are now bound to fulfill their promise to register his name on a new sublease. They have refused despite several requests; they are in breach of such an agreement.
  3. Taken at face value, there is a prima facie case of a unilateral agreement, which arises from the promise to the plaintiff by a staff member of the 2nd defendant, and that it has been breached by the defendants when they refused to register his name on the sublease.
  4. In response, my understanding of Mr. Mikaere’s opposition, together with his witness, Ms. Noere, rests on two factors.
  5. The first relates to Ms. Noere's contention that there was never a binding promise; what transpired between the plaintiff and her was mere advice and not a contractual undertaking. Her communications to the plaintiff on the new sublease were only exploratory and conditional, and did not constitute a clear and unequivocal offer capable of acceptance by performance. Though they accept the plaintiff’s payment of $6,069.05, it was solely done as settlement of outstanding arrears, but did not confer any entitlement to a new sublease, nor was it made in reliance on a legally enforceable promise. The grant of a new sublease is subject to procedural oversight and discretionary authority, including the advice of the SAAC.
  6. The second factor relates to why the sublease agreement was withheld. Counsel stressed that the sublease was withheld on the advice of SAAC. During the review process, it came to the attention of SAAC the judgment of this court in High Court Civil Case 18/2019[7], in regard to the dispute between the plaintiff and his siblings on the sublease in question. It was from this judgment that SAAC decided to put the sublease on hold. Nevertheless, the plaintiff was advised to settle this familial dispute first.
  1. Analysis and Findings

G.1 Nature of the Alleged Promise – Was there a Binding Agreement?

  1. The plaintiff relies on the principle of unilateral contract, arguing that the payments arguing of arrears constituted acceptance of an offer. However, the evidence shows that Ms. Noere statements were advisory and conditional, not a clear and unequivocal promise.
  2. She stated in her affidavit at paragraph 6, “..we advised the plaintiff that his late father’s sublease could be renewed if his sublease’s outstanding rent is cleared.” Further in paragraph 14, she stated, “However, we only advised him that their sublease agreement could be renewed once his father’s sublease arrears were cleared.”
  3. It is clear therefore that the sublease “could be renewed” if arrears were cleared, indicating only a possibility, not a guarantee. She was cross-examined on many things, but never on the choice of words she used.

G.2 Administrative Process – Role of SAAC and Ministerial Discretion.

  1. Even if a promise was made, the grant of a sublease is subject to review by SAAC and final approval by the Minister under the Ordinance. Ms. Noere had no authority to bind SAAC or the Minister. The process requires multiple levels of review, and the Minister retains ultimate discretion.
  2. In paragraph 10, she indicated that it was SAAC, a body established under the Policy and Guidelines Paper regarding the Allocation, Utilisation & Management of Government Leased Lands (the “policy”), that decided to withhold the sublease. In other words, Ms. Noere fulfilled her responsibilities; she advanced the application to the next body, which in this instance was SAAC, but it was SAAC that ultimately made the decision to withhold the application.
  3. To have a clear understanding of the sublease process[8], it is best that we set out in brief how it is done and by which body. An application for a sublease was filed and was received by the administrative staff at the front.
  4. If there are conditions required to be met by the applicant, these are then relayed to him/her on the spot. After these conditions had been met, the application then moved to SAAC for its review and scrutiny. This is in line with SAAC’s core function: to consider sublease applications and renewals, and to make recommendations to the Minister for approval or otherwise.
  5. The Minister makes the final decision whether to grant the sublease or not. So, once SAAC is satisfied, an application would then be moved to the Minister who has the final say.
  6. There is also the obligation of the Minister under sections 9 and 10 of the Ordinance, which dictates that subleases (or leases for that matter) are only valid if they are approved by the Minister.
  7. Based on the evidence, it is clear that Ms. Noere processed the plaintiff's application, which subsequently moved on to SAAC for review. The plaintiff should have been aware of this procedure, as he was not immediately granted a sublease. He must have understood that Ms. Noere lacked the authority to approve an application on the spot and that her role was strictly confined to processing applications. She is not in control of SAAC let alone had the ability to bypass SAAC's established policies regarding subleases. This is likely what she meant in her response when cross-examined, that she was not a member of SAAC when she assisted the plaintiff. She therefore had no authority whatsoever to assure the approval of an application.
  8. It would be erroneous therefore to assume that any actions taken by Ms. Noere would be unconditionally accepted by SAAC and the Minister. If this were the case, not only would SAAC be rendered unnecessary from the outset, but sections 9 and 10 of the Ordinance would serve no purpose whatsoever. Furthermore, it would imply that every single assurance provided by any staff member, regardless of their seniority or the gravity of the issue, would be binding on the Lands Department. I do not believe this to be true. Similarly, I do not think that the assurance given and relied upon by the plaintiff could, in any way, supersede established statutory and policy procedures.
  9. Consequently, I conclude that the plaintiff's assertion is primarily based on informal discussions and his personal interpretations of the process, none of which meet the legal criteria necessary for the establishment of a contract.
  10. So, as to the allegation that Ms. Noere’s promise (or advice) is sufficient to create a binding agreement, I consider it to be misleading and unwarranted. Ms. Noere lacks any standing or authority to guarantee approval, and her actions alone cannot bind SAAC.
  11. Likewise, it certainly cannot bind the Minister as well as approval of subleases, in accordance with sections 9 and 10, are matters of statutory discretion. Therefore, even if SAAC can be held accountable by Ms. Noere, the Minister retains the final decision to approve or reject an application. The Minister is not obligated to follow the recommendations provided by SAAC.

G.3 Equitable Conduct – Plaintiff’s Conduct and “Clean Hands” Doctrine.

  1. On the authorities mentioned earlier, I can stop here as there is no binding agreement; however, it would not be fair to both parties, as they have advanced submissions on this matter as well. It is also of interest why SAAC withheld the application.
  2. During the period when the application was under review by SAAC, a judgment from the High Court came to light. This judgment was not disclosed by the plaintiff during his numerous visits to the office; it only became known during SAAC's review process. This clearly indicates that neither SAAC nor Ms. Noere was aware of the judgment at the time they evaluated and processed the plaintiff's sublease application.
  3. Having reviewed the said judgment myself, I believe that this information is pertinent and holds significant importance for SAAC to consider. It has brought to light the ongoing ownership conflict between the plaintiff and his siblings regarding the sublease that the plaintiff is currently complaining about. He was the applicant then, and his mother-in-law and his siblings were respondents. He attempted to assert that not only was the house under the disputed sublease solely his, but he also claimed to be the registered owner of the sublease itself. However, the court ruled against him on both claims. In relation to the sublease, the court found no evidence to support his claim.
  4. It was based on this judgment that SAAC recommended placing the application on hold. This advice was promptly communicated to the plaintiff, who was urged to resolve this dispute first. Furthermore, in the interest of transparency, SAAC took the initiative to inform the plaintiff about the status of his application and the proposed way forward. I regard SAAC's conducts as both reasonable and prudent.
  5. The judgment was given on September 6th, 2019. The plaintiff’s wife made a follow-up on the sublease in early October 2019[9]. This indicates that the plaintiff has been aware of the judgment since September 6th but has chosen not to inform the defendants about it. I emphasize this point because it was argued on his behalf that he approached the court with “clean hands”, a principle in equity that requires a party seeking equitable relief, such as specific performance, to refrain from engaging in dishonest, illegal, or unjust behavior concerning the relief sought.
  6. I must express my disagreement with this assertion. As correctly pointed out by Mr. Mikaere, the advice provided to the plaintiff and the subsequent actions taken were conducted without knowledge of the judgment.
  7. It is not that the plaintiff never knew of the judgment; he had knowledge of it on September 6th but opted not to inform SAAC. He had numerous chances to reveal this information but chose to remain silent. In my view, this conduct offends the conscience of equity, as it has prompted SAAC to take actions that it would not have pursued had it been informed earlier. It is true that once SAAC became aware of the judgment, it promptly withheld the sublease; however, unlike the plaintiff, it communicated its decision to him and even provided guidance on the next steps to take.
  8. I find that his failure to disclose a prior High Court judgment undermines his claim of acting in good faith, thereby violating the very equitable relief upon which he relies, specifically the principle of "clean hands”. In accordance with Brink’s Mat Ltd[10] the judgment is a material fact and hence since he has failed to disclose such, the principle is not applicable.
  9. Nevertheless, I noted SAAC's advice to the plaintiff that he must first resolve his dispute with his siblings. This suggests, in my opinion, that the defendants are open to reconsidering his application. This situation is not insurmountable for him; he has been afforded an opportunity.
  10. Unless there is evidence that the judgment, SAAC based its decision on to withhold the application, is irrelevant or that in exercising its discretion to withhold the sublease. SAAC had done so unlawfully and irrationally;[11] I find no justification for granting the remedies requested by the plaintiff.

G.4 Misjoinder – Proper Parties to the Claim.

  1. Although this is not directly related to the issues at hand, I consider it crucial to address. Upon the entirety of the evidence, I find it doubtful why the Minister is being named as the party in this matter. The evidence clearly shows that the decision to withhold the application originated from SAAC itself. It generally means, according to the policy and the Ordinance, that the application has not been submitted to the Minister. There is no evidence to suggest otherwise.
  2. The plaintiff seeks to compel this court to require the Minister to endorse the application, which he/she has not yet had the chance to examine, and more significantly, SAAC has not completed its review. The said remedy is therefore premature. As such, the Minister is not the proper party to this case.
  3. As for the Director, there is evidence that she serves as the Chairperson of SAAC; hence, she is rightly named as a party.
  1. Conclusion

Based on the above reasons, the Court finds that:

  1. ORDER
    1. The claim for specific performance against the 1st defendant is dismissed.
    2. The claim for injunction against the 2nd defendant is denied.
    3. No order as to costs.

Dated this 18th August 2025.


.................................
HON. AOMORO T. AMTEN

JUDGE

[1] [2014] PGSC 83 at paragraph 17 of the judgment.
[2] [1987] HCA 20; (1987) 163 CLR 164
[3] 2nd ed by DW McMorland
[4] See for example Beswick v Beswick [1967] UKHL 2; [1968] AC 58, Cohen v Roche (1972) 1 KB 169 and Sky Petroleum v VIP Petroleum [1974] 1 WLR 576
[5] Ibid note 1
[6] [1988] 1 WLR 1350
[7] Kwong v. Atueru [2019] KIHC 74
[8] See the Policy and Guidelines Paper on the Allocation, Utilisation & Management of Government Leased Lands (2015)
[9] See paragraph 10 of his affidavit.
[10] Ibid note 6
[11] See Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, where the House of Lords affirmed that courts should not interfere with discretionary powers unless exercised unlawfully or irrationally.

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