Ombudsman Slams Samoa Ministry For ‘Incompetence’

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Businessman ‘left in financial ruin’ after bad land deal

By Alan Ah Mu

APIA, Samoa (Talamua, May 7, 2013) – A Samoa government ministry made errors then ignored the tragic consequences for a businessman.

An investigation by the Office of the Ombudsman unleashed scathing criticism of Ministry of Natural Resources and Environment’s (MNRE) behavior over the matter.

It involves a saga of a decade in duration in which "shocking" incompetence by MNRE over a land transaction left businessman Harry Chan Tung financially ruined.

The callous Ministry than left the businessman to deal with a situation it had created, Ombudsman Maiava Iulai Toma found.

Maiava noted that in November 2002 that Chan Tung bought four acres at Fugalei from Mrs. Theresa McCarthy; MNRE approved the sale.

"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," says Maiava in a report on the matter dated 6 May.

Chan Tung intended to subdivide the four acres.

Approval for this subdivision was granted by the Director of Lands on 29 December 2002.

Says the Ombudsman report:

"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."

MNRE discovered it had made a mistake.

It should never have approved the sale of the four acres to Chan Tung because the land was covered by the sea at high tide and as such it was public land under law.

Under law ownership of it should never have been granted to McCarthy as well.

MNRE should have known that – and so should have the surveyors involved.

Says Maiava: "Section 104 (1) of the Constitution states that ‘subject to the provision of any Act, all land lying below the line of high-water mark shall be public land.’

"If anyone should know by heart what the Constitution says about the sea meeting land in Samoa it is the officers of the Ministry responsible for lands and surveys in Samoa and the licensed Surveyors of Samoa.

"Incompetence, lack of diligence if not something even worse within MNRE resulted in the approval on 5 November 2002 by the Ministry of definition Survey Plan 6896, upon which Harry Chan Tung relied when he purchased the entire parcel of 4a.0r.00.6p delineated in the survey plan."

MNRE had allowed Chan Tung to buy "a chunk of sea."

Then it tried to divest itself of responsibility of something it had allowed to happen.

Chan Tung, says the Ombudsman, had acted in good faith and was faultless in a mess of somebody else’s creation which left him in financial ruin.

Samoa Lands Corporation also comes in for criticism.

It reduced a lease Chan Tung at Nu’u from 26 to 9 acres with no "satisfactory explanation."

Depressed and demoralized by mistreatment by public servants, the businessman left Samoa for Australia in 2009.

Another result was the threatened foreclosure of family property at Pesega where Harry’s father, "Mr. Chan Tung Senior" operates a supermarket.

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