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Telecom Vanuatu Ltd v Kalsau Langwor [2003] VUSC 36; Civil Case 124 of 2002 (3 July 2003)

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

Civil Case No. 124 of 2002

BETWEEN:

TELECOM VANUATU LIMITED
Plaintiff

AND:

SAM KALSAU LANGWOR & LEITARE KALSAU
Defendants

JUDGMENT

There is a repeater telecommunications tower on top of Snake Hill. It serves the telephones of all of Vanuatu save for the Port Vila area. The defendants hold a lease of that land. He wants the tower to be removed.

In July 1980 Chief Kalkot Kalotiti Mormor IV signed an agreement for a lease with the plaintiffs. It was for approximately 0.192 hectares for 75 years. A rental of VT3,000 per annum was fixed. There have since been increases and the rate till recently was VT10,000.

In 1988 by agreement of Chief Mormor the defendant became custom owner of the land. In February 2002 the defendant acquired a seventy-five year lease over the land. It was registered. From mid 2002 he has asked for large sums of money as compensation for the presence of the tower or its removal. No agreement has been reached. He seeks removal of the tower, damages in the sum of VT10,000,000 for trespass and other sums. There have been interim orders to stop the defendant interfering with the tower and access to it.

These Courts have said this many times, yet some lawyers still pay no attention. Hopelessly inflated claims do nothing but harm what might otherwise be a good cause. It is for the lawyer to make a realistic assessment of how much can be claimed, ensure he can prove it and resist any pressure from his client to add a few noughts. The Court will use its Civil Procedure Rules powers to make the lawyer pay where such mispleading causes wasted costs.

I put such considerations aside at this stage. Can the defendant require the removal of the tower? I have heard the evidence by sworn statement and cross-examination of Sam Kalsau, the defendant (claimant) and Jean-Yves Bibi and Douglas Patterson for the plaintiff. I accept the evidence of Jean-Yves Bibi. Where there is any relevant difference in evidence between that of Mr. Bibi and that of the defendant, I prefer the evidence of Mr. Bibi.

There is no real dispute over the salient facts. The tower is a telecommunications tower. TVL is an operator under the Telecommunications Act No. 10 of 1989. TVL signed an agreement with the custom owner in 1980. Rent was paid until the lease and has been offered since.

The defendant must have known the tower was there when he became custom owner and later lessee.

TVL have exhibited a number of leases and agreements for similar installations in other parts of the country. The annual sums paid are similar to here, although it must be noted opportunities to negotiate a higher figure have not been taken up by lessees.

Section 22 of the Land Leases Act states, "No registered lease or mortgage shall be capable of being created or disposed of except in accordance with this Act". It continues that every attempt to create or dispose of a lease or any right or interest in a lease is ineffectual unless in accordance with the Act. Subject to subsection 3; every instrument creating or disposing of a registered lease shall be registered (subsections 1 and 2). An unregistered instrument will still operate as a contract, (subsection 5).

The document signed in 1980 between TVL and Chief Mormor was an agreement for a lease, a contract between the parties and no more.

In 1988 when the ground passed to the defendant he said he was unaware of the agreement. He only became aware before or after he signed the lease. The defendant's answers on this topic were unsatisfactory and varied according to what he thought gave him the most advantage on the point under discussion.

In 1988, or in the years immediately following, the defendant either knew of the agreement or must have realised there would be one and with little effort could have found out about it. TVL continued to pay the rent to Chief Mormor. It seems that this fact is part of the reason why the defendant feels aggrieved. It would appear the defendant first started investigating the matter in earnest in 2001, (see Annex I to Bibi's affidavit of 8th July 2002).

This was the state of affairs when the defendant as custom owner granted a lease for 75 years to himself and his wife as lessees.

Section 17 of Land Leases Act is headed "Overriding Interests". It states:-

"Unless the contrary is expressed in the register, the proprietor of a registered lease shall hold such lease subject to such of the following overriding liabilities rights and interest as may, for the time being, subsist and affect the same without their being noted on the register.

(a) - (f) ...

(g) the rights of a person in actual occupation of land save where enquiry is made of such person and the rights are not disclosed; and

(h) rights and powers relating to electric supply lines, telegraphic and telephone lines or poles ... and ancillary works conferred by any law.

Provided that the Director may direct registration of any of the liabilities rights and interest herein before defined in such manner as he may think fit."

TVL were in actual occupation of part of the land at time of grant of the lease to the defendant.

There is no privity of contract between the plaintiffs and the defendant. The plaintiffs have an agreement for a lease with Chief Mormor. There is no lease or registration of any interest. Therefore, at best, when the defendants took the lease they had a licence to be on the land. They might have an action against Chief Mormor. They have no enforceable right against the defendant to remain on the land. They may stay on the land until required to leave by the defendants. That requirement has been made. Bearing in mind the nature and circumstances of the occupancy, particularly the defendant's knowledge of the circumstances, a reasonable time would have to be given to vacate. Taking into account also possible action under section 37 of the Telecommunications Act (see below) I find that twelve months is a reasonable time. It is also consistent with the period for rental payments.

There have been negotiations and ultimata and interference with the plaintiffs' access. It is difficult to fix a specific time for the making of the demand to vacate. I fix it as 17th July 2002, the date of filing of the counterclaim in this case.

The plaintiffs have cited section 38 of the Telecommunications Act in support of their right to stay on the land. I find that does not assist them. The section is entitled "Power of the Operator to place and maintain telecommunication lines and posts". The section speaks of the placing and maintaining "a telecommunication line, under, over, along or across, and posts in or upon, any immovable property." This section is directed at lines going across property with supporting posts. It does not, in my judgment, apply to a tower installation of the kind in this case. This is consistent with the wording of section 17(h) of the Land Leases Act.

I have the evidence of Douglas Patterson. I accept it. He says the area in question, (occupied by the plaintiff) is 6,424 square metres. He stated the annual rent for land such as this is VT3-5 per square metre. That means if some agreement can be reached an annual rent figure of VT19,272 to VT32,120 would be reasonable.

Accordingly I order as follows:-

1. The time for the plaintiffs to vacate currently expires on 17th July 2003. The plaintiffs must remove the tower and all their property by 17th January 2004. This is a further six months time. This date is fixed given the facts of this action, the nature of the occupancy and considerations under section 37 of the Telecommunications Act.

2. The claim for trespass and mesne profits is dismissed, save for any occupation beyond 17th January 2004.

3. The plaintiff will pay the defendant's costs of this part of the action on the standard basis.

NOTE: The Court has pointed out the following to the defendant on several occasions. This tower is vital to the telecommunications system of Vanuatu. If he insists on enforcement then there is every likelihood the defendant will lose the used land completely or an interest in it under section 37 of the Telecommunication Act, (power of the Telecommunications Authority to acquire, the land or an interest in it, compulsory). If an agreement is made with TVL for a realistic sum, then he will have an income from the used part of the land for many, many years. It is also for his lawyer to give advice based on realism and not hopelessly inflated claims. The defendant has known all along the tower was there.

Dated at Port Vila, this 3rd day of July, 2003.

R. J. COVENTRY
Judge.