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Lessa v Rory [2003] VUSC 16; Civil Case 140 of 2001 (10 April 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No. 140 OF 2001

BETWEEN:

JAMES EZRA LESSA
Applicant

AND:

EDMOND RORY
First Respondent

AND:

THE DIRECTOR OF LANDS
Second Respondent

AND:

THE DIRECTOR OF LAND RECORDS
Third Respondent

AND:

THE MINISTER OF LANDS
Fourth Respondent

Coram: Chief Justice Vincent Lunabek

Counsels: Mr. George Boar for the plaintiff
Mr. Kiel Laughman for the Second, third and fourth defendants

JUDGMENT ON QUANTUM

On 27 August 2002, the Court has issued, among other Orders, the following Orders:

UPON hearing Mr. George Boar for the Applicant, Mr. Jack Kilu for the First Respondent, Mr. James Tari for the Second, Third and Fourth Respondents,

AND UPON further reading the respective affidavits in support and considering the evidence, the Court makes the following Orders:

1. THAT, the declaration that the land lease Title No. 11/OE22/016 entered into between the First and Fourth Respondents on 15 September 1994 and registered on 21 September 1994 is invalid, void and of no effect, is refused.

2. THAT, the Order of rectification be made against the Third Respondent to insert the name of the Applicant herein in the register as lessee, is refused.

3. THAT, the Order for compensation sought against the First, Second, Third and Fourth Respondents for the loss and detriment suffered as a consequence of their conduct, is:

(a) refused as against the First Respondent;
(b) granted against the Second, Third and Fourth Respondents on the basis of their admitted evidence that there are some irregularities in the way the lease hold Title No.11/OE22/016 has been issued in favour of the First Respondent.

4. THAT, the issue of the quantum of compensation has to be determined by the Court. Directions will be provided to the parties concerned for a conference hearing in respect to same.

As to the counterclaim, the Court makes the following Orders:

5. THAT, the registration of land lease Title No.11/OE22/016 to the First Defendant is valid.

6. THAT the Plaintiff is ordered to pay to the First Defendant the sum of Vatu 1,380,000 for outstanding rents.

7. THAT, the costs are awarded in favour of the First Respondent against the Plaintiff/Applicant and the Second, Third and Fourth Respondents. The costs shall be agreed if not taxed.

The relevant Orders for consideration are Orders 3(b) and 4 above.

The parties file a common statement of agreed facts and legal issues. They are set out below:

The statement of agreed facts pursuant to Court Order dated 10th December 2002.

1. Mr. James Ezra Lessa planted some fruit trees on the said lease hold title No.11/0E22/016.
2. Mr. James Ezra Lessa was paying rent to Edmond Rory but ceased to do so on the advice of then Acting Director of Lands Mr. Michael Mangawai who was advised by the political advisor in the Ministry of Lands Mr. Edward Bani.
3. Mr. James Ezra Lessa applied for the said lease hold title and his application was approved by the Urban Land Lease Committee (ULLC).

LEGAL ISSUES

4. That the second, third and fourth respondents are liable in law to compensate the plaintiff for improvement done on the premises by the plaintiff.
5. That all rental arrears due to Edmond Rory by James Ezra Lessa be paid by the second, third and fourth respondents.

Two (2) questions for this Court to determine.

First, should the second, third and fourth respondents compensate the plaintiff/applicant for the improvement carried out on the premises?

The facts which is accepted by the Court are to the following effect:

The plaintiff entered the house and cleared the bushes on the land which is the subject of this case in March 1987, just after cyclone Uma.

The land is said to be owned by Tennis Club. Apparently it is an alienated land. There was no alienator certificate issued by the former owner. There was a house built on the land. The land was full of high grasses and bushes.

Sometime in 1991, the then Director of Land asked the plaintiff to apply for a lease on the said land. The land in question is reverted to the State.

The plaintiff applied for a lease on 6 May 1991. His application has been endorsed/approved by the Land Advisory Committee. A Certificate of Negotiator has been issued to him on 27 September 2991. He asked the relevant land authorities to pay and sign the lease. He was told by the then Director of land to wait. A land survey is needed in order to evaluate the purchase price of the lease.

During the evidence, the witnesses of the second, third and fourth respondents admitted that there were irregularities when the lease was granted to the first respondent, Edmond Rory. It was clear from the first respondent, Mr. Edmond Rory that he applied for the lease. He was not at fault nor he influenced any land authorities. The plaintiff admitted that the first respondent had done nothing wrong to have the lease granted to him.

However, the evidence which was accepted by the Court and which led to the Orders of 27 August 2002, was that the approval and granting of the Leasehold Title 11/OE2/016 to the first respondent, were done outside the procedures within the Land Leases Act.

It is not disputed the irregularities surrounding the granting of the lease to the first respondent were done by the second, third and fourth respondents.

On 27 August 2002, the Court refused to make a declaration to invalidate the first respondent’s lease and to the Court refused to make an Order to rectify the registration of the Leasehold Title 11/OE22/016. It follows that the first respondent, as a innocent party retains the said Leasehold Title No.11/OE22/016.

However, the Court made Orders to the effect that the second, third and fourth respondents pay compensation to the plaintiff for the detriment and loss he has suffered resulting from the conduct and/or reliance of the plaintiff on the respondents’ conduct toward him.

The plaintiff submits that based on the respondents’ administrative failure, he has acted to his own detriment in planting the fruit trees, carrying out other development on the land and that he should be compensated for the said development.

The respondents submit in reply that the law is the tenants who wish to carry out improvements on the land they are residing on, must at least give notice to the landlord. The landlord and tenants must have agreed upon the terms on which the improvements were to be carried out. The requirement to ............ notice is prerequisite to entitlement to compensation.

The respondents’ submissions to this effect must be rejected. The principle of law referred to by the respondents is a good law but does not apply in this case. The facts before the Court and accepted by the Court are that the then Director of Lands, Roger Tari, asked the plaintiff sometimes in 1991 to apply for the lease on the land the plaintiff resided on at that time. The plaintiff applied in early 1991. His application has been considered by the land authorities. He obtained a Certificate of Negotiator. The plaintiff was willing and ready to pay for the lease. He was told to wait until the Land Survey and evaluation were finalised. The conduct of the respondents or their agents amount to encouragement or promise that the title over the land on which the plaintiff resided will be granted to him. The facts show that that was not the case. In 1994, the leasehold title over the said land was granted to the first respondent, Edmond Rory, but not the plaintiff. The plaintiff is entitled to compensation. The respondents are estopped to deny that situation of ..........................

Furthermore, the administrative irregularities of the respondents constitute an independent basis for the plaintiff to be awarded compensation. The plaintiff is a lay person. His understanding is that the land will be his own as he was living on the land and his application for lease has been accepted by the Land Advisory Committee and a Certificate of Negotiator ha s been issued to him in respect to the said land. The plaintiff continued to make improvements on the land. The law of the landlord and tenants is not applicable to him (the plaintiff). This is a case where a person improves land in the mistaken assumption that it is his own. The land is a public land. The public authorities and/or their agents know that a person lives on the land and they ask him to apply for the lease of it.

They must have known that the person improves the land. The person is waiting for final arrangements by the public officers. But for the irregularities of the public officers of the Lands Department, the Title was given to another person. The Court will prevent the State from profiting from the irregularities of the public officials.

Secondly, the plaintiff applies for reimbursement of the rent payment to the first respondent, Edmond Rory. This application is refused.

The agreement for the plaintiff to pay rent to the first respondent, after, the latter has the leasehold title, is an agreement between the plaintiff and first respondent. The second, third and fourth respondents are alien to the said agreement.

The plaintiff claims for compensation for the distress he suffered as a consequence of the action of the Government:

(a) on going inquiry to Lands Department and Attorney General’s Office as to VT50,000. This is refused.
(b) .................. embarrassment suffered following publication of I and my family names in the Trading Post newspaper following Ombudsman report on the leasehold ............: VT50,000.

This clearly is accepted but amount is reduced to 100,000 VT as to no other evidence supplied by the plaintiff in respect to that claim.

Sub claims (c), (d) and (e) are refused as they are not directly due to the actions of the respondents.

Compensation for land improvement as follows:

(a) Labour costs to cut grass and clear the land premises VT 50,000
(b) Repair of the building VT 66,634
(c) Labour for .............water pipe is refuse. The landlord
Edmond Rory has his lease in 1994. The plaintiff
admits he did not ask the consent of the owner.
The claim is refused.
(d) The purchase price of 100 bricks of .............. 15 x 40
at VT 100 each totalling VT 14,000
It is refused as no evidence of the relevant period.
(e) Labour or expenses for continuing general up keep of
premises for 13 years. 13 years starts from 1987 to 2000.
The lease was granted to landlord Edmond Rory in 1994.
The plaintiff’s claim here is too general and no specific
and covered also 1994, 1995, 1996, 1997, 1998, 1999
and 2000. The claim of 1,000,000VT is refused.
(f) Fruit trees planted on the land:
(i) two navele trees VT 10,000
(ii) one apocado tree VT 7,700
(iii) one naus tree VT 3,000
(iv) two banana tree with lots of suckeas VT 10,000
___________
VT 30,700
==========
30,700 VT awarded for the fruit trees on basis of the crop compensation policy issued by the Department of Agriculture, which is accepted by the Court as a basis for reliance.

Finally, the claim for the loss of opportunity is refused.

ORDER

The plaintiff is entitled to the following compensation ................... The second, third and fourth respondents.

1. Improvements of the land (other than fruit trees) VT 160,172.
2. Fruit trees on the land VT 30,700.
3. Ridicules embarrassment suffered due to publication VT 100,000.

4. That the plaintiff is entitled to the compensation of VT 290,872.
5. That the plaintiff is entitled to the awarded costs and they are determined at Vatu 80,000.
6. That enforcement conference is set on Thursday 24 April 2003 at 1.30PM.

DATED at PORT-VILA this 10th DAY of APRIL 2003

BY THE COURT

Vincent LUNABEK
Chief Justice