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Bouchaud v Director of Land Records [2003] VUSC 6; Civil Case 079 of 2001 (1 February 2003)

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

Civil Case No. 79 of 2001

BETWEEN:

PETER STANLEY BOUCHAUD
T/A “NASAMA”
Plaintiff

AND:

DIRECTOR OF LAND RECORDS
First Defendant

AND:

THE MINISTER OF LANDS
Second Defendant

AND:

SOCIÉTÉ CIVIL IMMOBILLIÈRE DU CANAL
Third Defendant

JUDGMENT

Pre- Independence land title number 432 covers an area of approximately 498 hectares at the edge of Luganville on Espiritu Santo. Approximately 90 hectares lie on one side of a road. On 26th January 1981 an order was made declaring that portion to be part of the Municipality of Luganville and hence it became government land.

The third defendant, a company, was the holder of title number 432 at Independence. A rural lease has been granted to it in respect of the 408 hectares on the other side of the road. This dispute is about the 90 hectares.

The Land Register shews that on 31 May 2001 Société Immobilière du Canal (SCIC) was registered as proprietor of a 75 year lease over the 90 hectare property. The plaintiff says that registration came about as a result of fraud and mistake. He says a lease document in his favour was signed on 5 April 2001. It was not registered and should have been. He placed a caution on the register. He claims rectification of the register and damages.

Further and better particulars of the alleged “fraud, omission or mistake” were set out by the plaintiff in the document filed on 29th October 2001. Many of the particulars had no validity then or have ceased to have validity as a result of the discovery and evidence in this case.

In closing counsel for the plaintiff was required to set out what he relied upon as the remaining relevant allegations. He stated: -

1. Fraud

(a) The fact the third defendant held itself out as alienator of the land when in fact it either did not have that status or had lost it.

(b) The plaintiff had a properly acquired lease in registrable form, but by interference it was not registered and there was no legal basis for not registering it.

2. Mistake

(a) By the declaration of 26 January 1981 the 90 hectares became government land. The procedure whereby the defendant obtained the lease was therefore wrong.

(b) The third defendant paid no premium for the land when it should have done so.

(c) As per 1(b) above.

The plaintiff says his lease was signed first and the Minister should not have revoked it.

The third defendant replied that they applied for and obtained alienator status. That status was never lost. It was in occupation of the land at all times, the land was maintained and developed. The land became government land in 1981. No certificate of registered negotiator was required thereafter. All the proper procedures and formalities were followed. A lease was granted and registered.

The third defendant further alleged that the activities of the plaintiff have not been open and honest. First, he has lived in Santo from before Independence and knew the third defendant had occupied, developed and maintained the land at all times. Second, the prescribed procedures for the obtaining of a lease were not followed, a committee was by-passed. Third, the premium paid for the lease was absurdly low. Further, when Land Register officials refused to register his lease he bullied them. Fifth, he deceived the Minister and others as to the name of the lessee, Nasama, which was only a business name and not a legal person capable of holding a lease.

The first and second defendants took little part in the proceedings. They will abide by the result of the dispute between the other parties. It is pertinent to note that the government changed in mid- April 2001. Minister Korman signed the plaintiff’s lease. Minister Molissa revoked the lease and signed the third defendant’s lease. The latter’s letter of 13th August 2001 set out his reasons for this. In most particulars it followed the complaints of third party.

I have heard the evidence of Minister Sela Molissa. I accept it. I found it to be honest and reliable. I have considered it in detail and can find no basis to conclude from his actions there was any fraud or mistake such as would satisfy section 100 Land Leases Act.

Section 100 (1) States: -

“Subject to subsection (2) the Court may order rectification of the register by directing that any registration be cancelled or amended where it is so empowered by this Act or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake”.

The chronology of events and evidence to support those events is important.

It is undisputed that the third defendant SCIC held old title 432, which covered 498 hectares, including the 90 hectares in dispute.

SCIC became the alienator upon Independence. Section 1 Land Reform Act (Cap 123) states: -

“alienator” means a legal or natural person or persons who immediately prior to the Day of Independence...

(a) had freehold or perpetual ownership of land whether alone or jointly with another person or person; ...”

By section 3, SCIC was entitled to remain on the land until it entered into a lease with the custom owners or received payment for improvements; provided if the land was undeveloped he could not remain on the land but could enter into a lease. To enter into negotiations with any custom land owners, the alienator had to obtain a certificate of registered negotiator from the Minister, section 6. If this was not done, any agreement between a non-indigenous citizen and custom owners relating to land would be void and unenforceable unless approved by the Minister and registered in the Land Records Office, section 7.

On 26th January 1981 the land was declared public land, (see Annexe B to the affidavit of Maxim Korman). This was effected under section 12 Land Reform Act, Cap 123. By section 13-

“Every alienator occupying public land shall have a right to remain in occupation of that land from the time it becomes public land until he enters into a lease of the land or a part thereof with the Government or he receives payment for improvements to or on the land”.

Thus in 1981 the 90 hectares was government land. SCIC had a right to remain in occupation until they entered into a lease with the government or received payment for improvements to the land.

On 1 August 1982 the Alienated Land Act (Cap 145) came into force. By section 3 (1) anyone claiming to be an alienator had to apply to the Minister to be registered as a alienator within three months of the Act coming into force. By section 8 a person who did not make an application in accordance with section 3 “shall not have any rights as an alienator in respect of the land”.

Annex A to the affidavit of Peter Colmar dated 7th October 2002 is a notice under this Act. It refers to “Title No. 432”. It is dated 29th September 1982 and is addressed to “SOC. CIV. GOLDEN DU CANAL (Stephen Leeman), P.O.BOX 174, SANTO”. No point was taken about the word “Golden” and whether this referred to a different company to the third defendant.

The notice states

“The Minister has approved your application for registration as an alienator and instructed that you be registered, under section 17 (3) of the Act to negotiate for A lease on the developed portion. A certificate to that effect will be forwarded to you in due course”.

The third defendant could not produce a certificate. However, Annexe A1 of the affidavit of Maxim Korman shews what appears to be an extract from a registry for land title 432, area 498-76 registered to SCIC. In the columns headed “Certificate for lease” and “Alienator” the name of SCIC is inserted. (There is a note in the margin or added to the photocopy which states “Other side torn out where Urban 432 rejected”. No questions or evidence were addressed to the meaning of this. I disregard it).

There is no other evidence directed to this point. I am satisfied that SCIC was registered as alienator of the land comprised in old title 432. As such SCIC had to be compensated for improvements to the land or be granted a lease.

The Land Reform (Amendment) Act No. 6 of 1992 repealed sections 10, 11, 12 and 13 of the Land Reform Act. That repeal was stated not to affect “any right privilege, obligation or liability acquired, accrued or incurred under those sections”.

In evidence Peter Colmar stated a rural lease had been issued for the 408 hectares in the mid 1980’s. He said for various reasons applications for a lease over the 90 hectares were made, but did not come to fruition. He said in 2000, Land Department came to him and as a result SCIC’s current lease over the 90 hectares was issued and registered. He was first aware in January 2001 that the plaintiff was trying to obtain a lease. He said SCIC had been on the land throughout using and working it, there were improvements, buildings, sheds and road.

The plaintiff, Stanley Bouchaud, first applied to the then Minister Mr. Korman for a lease by letter dated 15th January 2001. He says he paid the required sums, the land was not worked, nor were there improvements on it. On 19th January 2001 he was issued a certificate of registered negotiator (Urban Land).

Maxim Korman was the Minister at the time. He says the Ministry took advice from the Attorney General’s Office about the 90 hectares. He said the advice was that Mr. Leeman had lost his rights as alienator as he wasn’t in occupation, the improvements were in poor condition, land rents had not been paid, Mr. Leeman didn’t have a certificate as registered negotiator and for 20 years he hadn’t got a lease. Peter Leeman is a director of SCIC. No name has been given as to who gave this advice. No written advice to this effect has been produced.

It would appear that on 29th January 2001 Mr. Leeman sent a fax to Mr. Korman stating he was the alienator. On 30th January Mr. Korman replied stating he considered Leeman no longer qualified as alienator as no-one was in occupation, the Land was not in good repair and rates and taxes were unpaid. (Annexe D1 of his affidavit).

By a letter dated 14th March 2001 Mr. Korman informed Mr. Leeman that he consider he no longer qualified as an alienator and the land reverted to the government. A cheque for back rent was returned (Annexe F).

On 4th April 2001 a lease was signed. The lessor was the Minister the lessee was “Nasama” of P. O. Box 156, Luganville. The premium was Vt. 6,875,000. The Notes section states “Registered at Port Vila: 15.00 hours this 5th day of April 2001”. It was not in fact registered on that day or any other day, (see D 3/4).

In mid April there was a vote of no confidence in Parliament. The government fell and a new Minister of Lands, Sela Molissa, was appointed. He took the view there were many irregularities in the way Mr. Bouchaud had obtained his lease. He revoked it. He set out the reasons for his actions in a letter of 13th August 2001, (Exhibit D3/1). The lease over the 90 hectares in favour of SCIC had been signed on 8th May 2001 and registered on 31 May 2001. The plaintiff placed a caution on the land.

It is in these circumstances the plaintiff alleges “fraud or mistake or omission”. The third defendant denies this and responds that it was the behaviour of the plaintiff and those associated with him that was less than honest.

The third defendant’s lease was registered on 31 May 2001. Section 14 Land Leases Act (Cap 163) states, “subject to the provisions of this Act, the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease...”

Section 15 states:- “The rights of a proprietor of a registered interest...shall be rights not liable to be defeated except as provided in this Act...”

Although the plaintiff’s lease was the one signed first in time it was not registered. Section 22(1) states:- “...Every attempt to create or dispose of a registered lease... otherwise than in accordance with this Act shall be ineffectual to create or dispose of a registered lease...” Subsection (2) states “Subject to the provisions of subsection (3) every instrument creating or disposing of a registered lease...shall be registered”.

Thus to succeed in this action the plaintiff must satisfy section 100 (1). The Court may “order rectification of the register by directing that any registration be cancelled or amended where it is so empowered by this Act or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.”

The plaintiff’s claim seems to be made on the basis of showing “fraud, omission or mistake”. The section in fact states “where it (the court) is satisfied that any registration has been obtained, made or omitted by fraud or mistake”. It is on this latter basis I consider this case. Although in closing the plaintiff set out his remaining allegations, I have considered the particulars originally given and also all the evidence in the case generally.

I first look to see if registration of the third defendant’s lease was obtained ‘by fraud or mistake’ I will take in turn the points made for the plaintiff in closing.

1. Fraud (a) “The fact the third defendant held itself out as alienator in the land when in fact it either did not have that status or had lost it.”

I have found that the third defendant did acquire alienator status. There was nothing to suggest that had been lost when it applied in 2000 for a lease. If there was or could have been a loss of such status it was done or affirmed by act of the Minister so the circumstances were well known. The third defendant was in fact disputing it had lost such status. The extract of what was said to be a register was produced by the plaintiff’s witness, Mr. Korman. It cannot be said the third defendant deceitfully held itself out as alienator when it no longer had that status.

(b) “The plaintiff had a properly acquired lease in registrable form but by interference it was not registered and there was no legal basis for not registering.”

This ground is premised on the basis that the plaintiff’s lease was properly acquired. I am not satisfied it was properly acquired. I set out the reasons:

(i) The plaintiff, Mr. Bouchaud, has lived in Luganville since before Independence. He had been onto the ground after Independence in connection with timber. He had asked permission to do so. He must have known before applying for a lease that Peter Leeman or the company SCIC regarded themselves as being in occupation of the land as far as the obtaining of a lease was concerned.

(ii) He obtained a certificate as registered negotiator in the name of Peter Bouchaud. At some stage the application for the lease became made in the name of Nasama Co. Ltd. That was the basis on which the application proceeded, (see for example Annex E of Mr. Korman’s affidavit, the caution entered by the plaintiff’s lawyer, V2). The lease itself states the lessee is “Nasama”.

Nasama is the registered business name of Peter Bouchaud. The business was established on 18th January 2001 and registered on 31st January 2001. (Annexe A to his first affidavit). He states at paragraph 2, “I trade in the business name of Nasama”.

A business name is not a legal person for the purposes of issue and registration of a lease. It is not clear why Mr. Bouchaud apparently told the Minister and his lawyer that the applicant was a registered company when it wasn’t. He said in cross-examination he “told Mr. Korman I would register the company later if the lease was issued”. The plain fact is that the lease was issued to no more than a registered business name. (Section 1 Land Leases Act states “proprietor means: (a) in relation to a registered lease the person named in the register as proprietor thereof...” The Act in various sections speaks of a “person”)

(iii) The speed with which the plaintiff’s application was processed was abnormally fast. On 15th January application for a lease was made. On 16th January a request for a valuation of the land was made. On 19th January the Certificate of Registered Negotiator was issued. The same day the Department of Land Survey issued survey Plans. (The third defendant says that these were their plans). On 22nd January advice was received as to the value of the property. On 30th January Mr. Korman, as Minister wrote to the third defendant stating he was of the view they no longer qualified as alienator. Although the document is not in evidence it would appear Mr. Korman wrote on 9th February to the Land Department about drawing up a lease, (see Annexe E of Korman’s affidavit, Annexe A of George Tambe’s affidavit).

It was at this stage that officials in the Department of Land became deeply concerned about what was happening (see the affidavits of George Tambe and Ben Garae).

The matter remained stalled until mid-March when in a very short time a new lease was drawn up, now covering the whole 90 hectares, and signed. Various dues were paid in the second half of March. Mr. Korman’s letter of 4th April informed the Director of the Department of Lands that the Prime Minister had instructed him to reverse the instructions of 9th February and “to grant the Nasama Co Ltd. the full 90 hectares of land as requested by the company. I have therefore advised Nasama to redo another lease...” The same day the new lease was signed and according to the face of the attached notes, registered on 5th April at 3 p.m. It was not in fact registered and this prompted letters from the plaintiff’s lawyer and eventually the lodging of a caution.

(iv) Normal procedures were by-passed in the issuing of the plaintiff’s lease. I have considered carefully the evidence of George Tambe and Ben Garae. I accept their evidence. Indeed, they have made a principled and courageous stand on this matter. I refer in particular to George Tambe’s letter of 27th February and the description of activities given in Garae’s affidavit. Where they express opinions concerning the matters in issue in this case I, of course, form my own conclusions. There are also, elements of hearsay, which I disregard.

Each of them set out their concerns about the irregularity in the process for issue of the plaintiff’s lease.

(v) The premium paid by the plaintiff was grossly inadequate. The plaintiff paid VT6,875,000 for 90 hectares of land zoned commercial and residential, being part of the township of Luganville. One of the longer sides of the property overlooks the sound to Aore Island. This provides ideal plots for upmarket housing. I accept Peter Colmar’s evidence on this.

The plaintiff himself in cross-examination when asked about the value replied, “Not much more than 6 million, may be 9 moving to 12 million” In one answer the plaintiff valued this land at almost double what he paid for it.

In his letter of 22nd February 2001 Ben Garae raised serious questions about the valuation, (see plaintiff’s bundle of documents).

On 13th June 2001 the third defendant entered into an agreement or heads of agreement with the Vanuatu Football Federation for an academy, school and accommodation on the land. This was done at a time when the caution was on the register. The land concerned was not prime land within the plot.

VFF agreed to pay VT10 million for 14 hectares and 6 million for a further 10 hectares (see document in plaintiff’s bundle).

There is a valuation attached to the affidavit of Peter Colmer. I can take little regard of this. It should have been produced in an affidavit of the valuer concerned. The best course would have been to obtain an independent valuer’s report and affidavit.

Peter Colmar stated the real value was more like VT100-150 million. He regarded Vt6.8 million as ridiculous.

I am satisfied VT6.8 million was a gross under- valuation of this land. Even without electricity, water and drainage it is worth several times that amount. I cannot, on the evidence fix a particular figure, however there is sufficient evidence to shew the inadequacy of VT6.8 million.

There is no evidence or explanation before me as to why a piece of land of this value should be leased so cheaply or the government deprived of a realistic sum when granting a lease to someone who had not bought the land before Independence, had never occupied or worked the land and was not an alienator.

(vi) The manner in which Reginald Stanley and Maxim Korman dealt with the third defendant.

I was not satisfied with the evidence of Reginald Stanley. He acted for a short time as Minister. He was able to say who at the State Law Office told him the land belonged to the government yet did not say and produced no documents concerning the further advice. He says in his affidavit (paragraph 17) that at a meeting, “It was resolved...that the land was state land and did not belong to Mr. Leeman... Following this confirmation, I then instructed the Department of lands to process the lease in favour of Mr. Bouchaud who had already applied for the lease and had already been issued with a certificate of Registered Negotiator”. He wrote a letter to this effect to Peter Colmar on 25th January (Annexe D).

The certificate of registered negotiator had been issued to the plaintiff apparently before this meeting about the land and before his letter was sent. He was not aware of any compensation paid to the third defendant. He vaguely referred to advice form the State Law Office.

He does not explain how, why and the process by which the third defendant lost its alienator status. He was, earlier in January, able to tell Peter Tulangi, the plaintiff’s agent, that the land was vacant. Mr. Korman wrote on 30th January to Mr. Leeman in Queensland, Australia saying he had lost alienator status and giving him seven days to respond. He sent a further letter on 14th March stating “I hereby inform you that this land is now revert back to the government and under the Management of the Minister of Lands in accordance with section 8 and 9 of the Land Reform Act [CAP. 123]”. He does not state in law precisely how or why alienator status had been lost. He visited the land once, and said it was not in good condition, and no-one was looking after it. He said he never received George Tambe’s letter of 27th February. He understood Nasama was a limited company.

Whist I do not reject the evidence of Mr. Korman, it is clear that he is aware of more circumstances surrounding this case than he has told the Court. I prefer the evidence of Peter Colmar about the occupation and condition of the land.

For the reasons set out above at (i) to (vi) I am not satisfied the plaintiff’s lease was “a properly acquired lease”. Further I can find no evidence that there was interference by which it was not registered. By interference I have taken the plaintiff to mean any unlawful or improper activity. Upon coming into office in mid- April Minister Molissa was entitled to review the circumstances of the plaintiff’s lease and make a decision to revoke it. He set out his reasons in his letter of 13th August to Nasama. Whether or not the third defendant could or had lost its alienator status he was entitled to issue a lease and that was the one that was registered.

Further, the plaintiff cannot get over the difficulty that “his” lease was issued to a business name.

Accordingly I can find no fraud under this head.

2. Mistake

(a) “By the declaration of 26th January 1981 the 90 hectares became government land. The procedure whereby the third defendant obtained the lease was therefore wrong. .

I have already found that SCIC became a registered alienator. The plaintiff contends SCIC lost that status.

Section 3 Land Reform Act States:-

“Every alienator shall be entitled to remain on land occupied by him on the Day of Independence until such time as either he enters into a lease of the land or a part thereof with the custom owners of the land or receives payments for improvements to or on that land.

Provided that where such land is undeveloped land, an alienator, without prejudice to his rights to enter into a lease of the Land, shall not be entitled to remain on such land”.

SCIC has remained on the land throughout. There were improvements and development of the land. I accept Peter Colmar’s evidence on this, although the improvements were not of great magnitude and the maintenance of the land in recent time was lacking to some degree.

The Minister clearly had in focus the question of alienator status and the argument that was going on when he granted the lease to SCIC, see page 2 paragraph 5 of his letter of 13th August 2001. He regarded the lease issued to the plaintiff as having been improperly issued. He had the power to issue the lease to SCIC whether or not it had alienator status. In the absence of any other applications for a lease he was entitled to issue one to SCIC.

The plaintiff argues that SCIC never obtained a certificate as registered negotiator. Part IV Land Reform Act which contains the requirement for a certificate of registered negotiator, is headed “Negotiations and Agreements Relating to Custom Land”.

The preamble to the Act states:-

“To make interim provision for the implementation of Chapter 12 of the Constitution”.

Chapter 12, Article 73 states:-

“All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants”.

Article 79 states:-

“Notwithstanding Articles 73, 74 and 75 land transactions between an indigenous citizen and either a non-indigenous citizen or a non-citizen shall only be permitted with the consent of the government”.

Consent is to be given unless the transaction is prejudicial to the interests of the custom owners, indigenous citizens, the community or the country (Article 79(2)).

Article 80 gives the government power to own land acquired by it in the public interest.

Part IV clearly envisages a system whereby Ministerial approval is required to enter into negotiations with custom owners. This is part of the mechanism by which Chapter 12 of the Constitution is put into action. The Land in this case is government land. If the government is the land owner then it is one of the negotiating parties and can look to the interest of the community and country when granting a lease.

The plaintiff received a “Certificate of Registered Negotiator, Urban Land” under the “Land Reform Regulation No. 31 of 1980, section b”. That Regulation became part of the Land Reform Act, published in revised edition in 1988. Section 6 Certificate of Registered Negotiator is in Part IV, which concerns custom land.

Whether or not SCIC has a negotiator’s certificate there can have been no mistake on the part of the Minister as to the state of affairs concerning SCIC.

I cannot find any other circumstance on the evidence which could arguably constitute a “mistake” within section 100 Land Leases Act.

(b) “The third defendant paid no premium for the land when it should have done so”

The third defendant purchased the land before Independence, has been in occupation since and has made the improvements and maintained its condition. The Minister was entitled to issue the lease on the terms that he did.

(c) This is the same ground as 1(b) under fraud. I have already dealt with that. I have reassessed it and can find no mistake within the meaning of section 100.

I have assessed the evidence of Peter Bouchaud. I do not reject it, however there is much that went on in January – April 2001 which he has not disclosed to the Court.

The background to his interest in the land, his contracts concerning the land and the way he went about acquiring the lease required greater clarification. As far as the state of the land is concerned I have stated I prefer the evidence of Peter Colmar. The evidence of Jeremiah Lingi is, in effect neutral.

Where the evidence of Peter Bouchaud and that of Peter Colmar differs. I prefer that of the latter. It must be accepted by the third defendant that to some degree they laid themselves open to loss of the 90 hectares in their dilatoriness in seeking a lease and the extent to which they improved and developed the land.

Accordingly I can find no fraud or mistake in the registration of the third defendant’s lease. Therefore claims 1, 2, 3, 4 and 6 of the plaintiff’s claim against the third defendant are dismissed.

I order the caution lodged by the plaintiff on 31st May 2001/1st June 2001 be removed from the register forthwith. There is a counterclaim for compensation for the lodging and maintaining of the caution. Little evidence or argument was addressed to the point, particularly by the plaintiff. I will hear this separately as a discrete issue.

It necessarily follows that the claim against the first and second defendant must fail. Although the “Amended Originating Summons” speaks of “the defendant”, singular, and refers to the first and second defendants, the principal contest has been between the plaintiff and third defendant. There is no specific claim in the alternative for return of the premium and various fees paid by the plaintiff, should he be unsuccessful in the action. At this stage I will make no findings on that pending further submissions and submissions upon costs. I will fix a date for directions on any remaining issues and the drawing up of an Enforcement Order.

Dated at Port Vila this ................day of February 2003

R.J.COVENTRY
Judge