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Supreme Court of Vanuatu |
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IN
THE SUPREME
COURT
OF
THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
Civil Case No. 14 of 2004
BETWEEN:
JOHN
KALOMTAK WIWI
FAMILY
Claimants
AND:
MINISTER
OF
LANDS
First
Defendant
AND:
GOVERNMENT
OF THE REPUBLIC OF
VANUATU
Second
Defendant
Coram:
Justice
Treston
Mr.
Boar for
Claimant
Mr.
Edwards & Ms. Williams-Reur for
Defendants
Dates
of Hearing: 13 July & 19 August
2004
Date
of Decision: 2 September 2004
DECISION ON DEFENDANTS' APPLICATION TO STRIKE OUT CLAIM
CLAIM
In
an amended Supreme Court claim filed on 16 March 2004, the original claim having
been filed on 30 January 2004, the Claimants,
John Kalotak Wiwi Family, sought a
declaration that the compensation payment for Port Vila Urban land on or about
1993 to the communities
of Ifira, Erakor and Mele was null and void and in
breach of the constitution and for an order directing the Defendants to release
VT167, 019, 930 to the Claimants from its trust account together with interest
of 12 % from 1986 to the date of release of the fund
and
costs.
The
Claimants contended that the Government established the Port Vila Urban Land
Corporation ("the Corporation") following order No.
31 of 1981 of the Land
Reform Regulation. It was contended that that Corporation was established to
hold money in trust for the custom
owners of Port Vila Urban Land and in
particular on 20 February 1986, the Corporation executed a commercial lease over
titles 11/OY14/006,
11/OY21/013 and 11/OX23/009 ("the land") as lessor with
Coral Tours Melanesia S. A. as Lessee. It was contended that the corporation
acting on behalf of custom owners as lessor received VT170, 484, 939 being the
consideration and premium for the grant of the lease
with the consideration
being provided as follows: -
VT3 465,000 for Government charges.
VT167, 019,390 for custom landowners.
It
was accepted that under the Land Reform (Declaration of Public Land) Order No.
26 of 1981 the then Minister of Land declared certain
areas of Port Vila to be
Public Land which included the
land.
It
was contended that in or about 1991 the Defendants revoked Order 31 of 1981
whereunder the corporation was disbanded and the sum
of VT167 019 939 was
transferred to Ministry of
Lands.
It
was alleged that in or about 1993 the then Korman Government attempted to
compensate the custom owners of Port Vila urban areas
by paying certain amounts
of money to the villages around Efate namely Ifira, Erakor and Mele but these
payments were not made to
the true custom owners. It was contended that the
payment of such compensation was irregular and not done according to law and was
in breach of Article 73 of the Constitution and that the Claimants were custom
owners of the land. It was alleged that on numerous
occasions the Claimants
approached the Corporation for release of the VT167 019 930 but the corporation
refused and subsequent demands
to the Defendants for release the said sum were
also
unsuccessful.
The
Defendants claimed that the Corporation was not established to hold money for
custom owners and that as the land was already declared
to be public land the
amounts paid for consideration of the leases was Government money. The
Defendants denied that the Claimants
were the true custom owners of the land and
submitted that the leases were executed on behalf of the Government and not on
behalf
of the custom owners and the Claimants were not entitled to the amount
claimed. The Defendants denied that the Claimants had suffered
any losses as a
result of their
actions.
APPLICATION
In
an application filed on 4 June 2004 the Defendants sought orders that the claim
be struck out and costs awarded to them on the
grounds that the claim did not
disclose a cause of action or alternatively that the claim as pleaded did not
entitle the Claimants
to the relief they
sought.
EVIDENCE
I
have taken into account the sworn statements of Kaluat Thomas (2), William Mahit
and Ballen Kalsakau filed on behalf of the Claimants
and the sworn statement of
Paul B. Telukluk sworn on behalf of the
Respondent.
SUBMISSIONS
The
Defendants submitted that under Article 80 of the Constitution the Government
may own land acquired by it in the public interest
and that this land was
declared to be public land under The Land Reform (Declaration of Public Land)
Order No. 26 of 1981 and that
the Claimants' rights as custom owners were
extinguished by that declaration. It was accepted that compensation was due to
the true
custom owners but that this had been paid under the agreement of 17
July 1992 (see exhibit 'PT 1' to sworn statement of Paul B. Telukluk.)
and it
was too late to challenge that agreement for compensation which would have
needed to have been done by way of Judicial Review
or an action under contract
both of which causes of action are now statute barred and, in effect, that there
was no cause of action
available to the
Claimants.
The
Claimants in response submitted that they are the custom owners (see exhibit
'KT11' to sworn statement of Kaluaat Thomas of 17
August 2004) and they
themselves received no compensation and that any payments made under the leases
granted to Coral Tours Melanesia
S. A. were made to the lessor on behalf of the
custom owners and should be refunded to them. The Claimants submitted that the
sworn
statements established that the Claimants were the custom owners and that
as the VT167 019 939 had been paid as compensation to custom
owners and ought to
be refunded to them. They submitted that at the time that the lease was signed
on 2 February 1986 (see exhibit
'KT1' to sworn statement of Kaluaat Thomas of 12
May 2004) no compensation had been paid to the custom owners and thus any monies
paid to the Port Vila Urban Land Corporation belonged to the custom
owners.
Submissions
were made that under the Constitution any claim by the Claimants was not statute
barred because the moneys received by
the Port Vila Urban Land Corporation were
trust moneys and the Defendants had an ongoing obligation under the Constitution
to identify
the true custom owners and to pay them appropriate compensation. It
was argued that the provisions of the Land Reform (Port Vila
Urban Land
Corporation) order No. 30 of 1981 meant that the corporation entered into the
1986 lease on behalf of the custom owners
and held the land in trust for them
and that monies held on trust are not subject to statutory
limitations.
It
was submitted by the Claimants that Order No. 26 of 1981 was a declaration which
did not obviate (sic) the Claimants' reasonable
compensation for confiscation of
their land and that no valuation had been done to arrive at appropriate
compensation for the land
as between the Claimants and the Government under the
provisions of S.9B of Part 6A of the Land Reform (Amendment) Act No. 35 of
2000.
In
relation to the compensation payment made in or about 1993, the Claimants denied
that there was any agreement between them and
the Government, and that any
surplus funds under S.13 of the Land Reform (Port Vila Urban Land Corporation)
order No. 30 of 1981
should be paid to them.
The
Claimants also relied on the Court of Appeal decision of
Kalses
& Ors v
Le
Manganese De Vate
Limited
[2004] VUCA 8; CAC 148 of 2003 as for the proposition that any claim could not
be struck out under the Civil Procedure Rules No. 49 of 2002 until
all the
evidence was placed before the
Court.
LAW
The
Constitution of the Republic of Vanuatu provides for questions concerning land
in Chapter 12. Relevant articles in relation to
that are as
follows:-
"LAND BELONGS TO CUSTOM OWNERS
73. All lands in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants.
BASIS OF OWNERSHIP AND USE
74. The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu
PERPETUAL OWNERSHIP
75. Only indigenous citizens of the Republic of Vanuatu who have acquired their land in accordance with a recognised system of land tenure shall have perpetual ownership of their land.
COMPENSATION
76. Parliament shall prescribe such criteria for the assessment of compensation and the manner of its payment as it deems appropriate to persons whose interest are adversely affected by legislation under this Chapter.
GOVERNMENT MAY OWN LAND
80. Notwithstanding Articles 73 and 74 the Government may own land acquired by it in the public interest."
It
is accepted that the Land Reform (Declaration of Public Land) Order No. 26 of
1981 included the land, which was ordered to be public
land on 26 January 1981.
That order provided as follows:-
"REPUBLIC OF VANUATU
Land Reform (Declaration of Public Land)
Order No. 26 of 1981
To provide for the Declaration of certain land situated within the Urban Physical Planning Boundaries of Port Vila and Luganville to be public land.
IN EXERCISE of the power contained in Section 12 of the Land Reform Regulation 1980, I hereby made the following Order:
1. The shaded areas of land shown on the map attached hereto as Annex 1 shall with effect from the date of commencement of this Order be public land.
2. The boundaries of those areas, of which a description is attached hereto as Annex 2, shall constitute the urban physical boundaries of Port Vila.
3. The shaded areas of land shown on the map attached hereto as Annex 3 shall with effect from the date of commencement of this Order be public land.
4. The boundaries of those areas, of which a description is attached hereto as Annex 4, shall constitute the urban physical planning boundaries of Luganville.
5. This Order shall come into force on the date of signature.
MADE at Port Vila the 26th day of Jan. 1981.
(sign)
T. Reuben
Acting Minister of Lands"
Section
4 (j) of the Land Reform (Port Vila Urban Land Corporation) order No. 30 of 1981
provides as follows: -
"The Corporation shall with respect to Public Land, have the following powers:
(j) enter into agreements, leases, conveyances or transfer of land on behalf of the Government or any custom owners and a recital in any such agreement, leases, conveyance or transfer that the Corporation is acting on behalf of the Government or custom owners as the case may be shall be sufficient to indemnify any other party to such agreement, leases, conveyance or transfer;"
Section
13 provides as follows: -
"13. Any surplus funds generated by the Corporation in the course of carrying out its functions and power shall be held by it in trust for those parties properly entitled thereto."
Article
47 (1) of the Constitution provides as follows: -
"THE JUDICIARY
47. (1) The administration of justice is vested in the judiciary, who are subject only to the Constitution and the law. The function of the judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine the matter according to substantial justice and whenever possible in conformity with custom."
Article
49 (1) provides as follows: -
"THE SUPREME COURT, THE CHIEF JUSTICE AND OTHER JUDGES
49. (1) The Supreme Court has unlimited jurisdiction to hear and determine any civil or criminal proceedings, and such other jurisdiction and powers as may be conferred on it by the Constitution or by law."
The
Limitation Act No. 4 of 1991 provides as follows: -
- Section 3 (1) (a) and Section 7 (1).
"LIMITATION OF ACTIONS OF CONTRACTS AND TORT AND CERTAIN ACTIONS
3. (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-
(a) Actions founded on simple contract or on tort;..."
"LIMITATION OF ACTIONS TO RECOVER MONEY SECURED BY A MORTGAGE OR CHARGE OR TO RECOVER PROCEEDS OF THE TRANSFER OF ANY INTEREST IN LAND.
7. (1) No action shall be brought to recover any principal sum of money secured by a mortgage or other charge on property, or to recover proceeds of the transfer of any interest in land, after the expiration of twenty years from the date when the right to receive the money accrued."
FINDINGS
The
Defendants do not necessarily accept that the Claimants are the custom owners of
the land. However that is largely immaterial
because under the Constitution,
even though custom owners have the perpetual ownership of their land under
Article 75, the Government
may own land acquired by it in the public interest
under Article 80, and I am not aware of any challenge to order No. 26 of
1981.
Once
the land became public land, custom owners, including the Claimants, if that was
their position, ceased to have rights of ownership,
although they had a right to
compensation under Article 77. It is also quite clear that the lease of 20
February 1986 was not entered
on behalf of custom owners as it could have been
under S.4 (j)
(above).
The
lease between the Corporation and Coral Tours Melanesia S. A. in February 1984
was not between the custom owners and the lessee
but was between the Corporation
as lessor and the lessee and notwithstanding what Mr. Taka may have understood
and documented in
his note (annex KT7) it is clear, in my view, that payment by
the lessee could never have been due to the custom owners but only
to the
Government in relation to land which had been declared to be public land under
the order. That of course does not deal with
the veracity or admissibility of
annexure KT7 but is simply a matter of legal interpretation of the status and
ownership of the land.
To make it more difficult for the Claimants it seems that
the original of KT7 is now unavailable (see paragraph 2 of sworn statement
of
Kaluaat Thomas of 17 August 2004). Even the copy produced seems to be in two
handwritings.
In
addition, the Government fulfilled its responsibilities under Article 77 by the
agreement of 17 July 1992. That agreement was effected
between the Government
and the representatives of the former custom owners of Port Vila urban land. The
present Claimants now contend
that they are dissatisfied with that agreement and
are exercising their rights under the law to have it declared null and void.
Even
on their own evidence they were not declared custom owners until 27 January
2000. That in itself was only by the council members
of Erakor village and I
note the comments if the Court of Appeal in
The
Valele
Family v
Touru
[2002] VUCA 3; CAC 01/2002 when it was said that the proper bodies to determine
custom ownership of land are the Courts, in the first instance
the local Island
Court (or its successor in law) and if there is an appeal, the Supreme Court.
The Court said,
"This
conclusion immediately points up a difficulty with attempted settlements of
ownership disputes arranged through bodies such
as councils of chiefs that are
not part of the constitutional court system".
It is the
Courts who are the only bodies recognised under the Constitution with powers to
determine custom
ownership.
The
Claimants have other difficulties. First the declaration of custom owners of
"Eleo" land was in 2002 nearly 10 years after the
settlement agreement in 1992
and the Paramount Chief who was part of that declaring council was Chief Waya
Tenene who was also a
signatory to the agreement for compensation payment for
Erakor on 17 July 1992. So the Claimants on the one hand seek to rely on
Chief
Tenene for the declaration and on the other hand to disavow his authority to
sign the agreement. Second the Claimant, also
conceded in submissions that they
knew about the 1992 agreement at the time but neglected to do anything about it
until they filed
their amended claim on 16 March 2004. Further, none of
compensation under the 1992 Agreement would have included the amount paid
by
Coral Tours Melanesia S. A. to the Corporation at the time of the grant of lease
over the land. Those payments was pursuant to
a lease agreement (annex KT1) to
which the former custom owners were never a party and the lease did not make any
reference to their
rights as they see
them.
I
find that there is no merit in the Claimants' submission that the monies under
the lease were paid in 1986 before the settlement
of compensation to the custom
owners was made in 1992. The two payments are separate and distinct and I do not
agree that the payment
under the lease should be regarded as being made on
account of compensation. The legislation does not say that and the monies cannot
be said to be surplus funds under S.13 of the Land Reform (Port Vila Urban Land
Corporation) Order No. 30 of
1981.
As
to the need for market value of the land to be taken into account that was
provided for in the Land Reform (Amendment) Act No.
35 of 2000 which did not
commence until 05 February 2001. That amendment is not retrospective back to
1992.
In
addition I do not consider that the letters or evidence from various former
ministers can override the clear meaning of the law
on the face of the
legislation
The
Court is aware of and mindful of the Court of Appeal decision in
Kalses
& ors v
Le
Manganese de Vate Limited &
ors [2004]
VUCA 8; CAC 34 of 2003 where the Court said as follows: -
"The Civil Procedure Rules (CPR) make no specific provision for an application by a defendant to strike out a claim. The CPR make provision in Part 9 of "Ending a Proceeding Early", but those rules are directed only to situations where a claimant seeks to obtain an early judgment. They do not make provision for the reverse situation where a defendant wants to bring the proceedings to an early end.
The order sought by the defendants was not 'the claim' be struck out, not merely that the statement of claim be struck out. There are deficiencies in the pleading of a claim it is usual to seek to have only the pleading struck out, and leave is usually given to re-plead, at least once. To strike out a claim is a more serious step as it brings the whole proceedings to an end.
Application may be made under the rules for interlocutory order is "an order that does not finally determine the rights, duties and obligations of the parties to a proceeding": see Rule 7.1 (1). A question arose in the course of argument on this appeal whether the CPR permits an application to strike out the whole claim, as opposed to merely a pleading. In some cases to strike out a claim might finally determine rights. That would not be interlocutory order. However in this case counsel agreed that if the proceedings are struck out it is open to the claimants to bring fresh proceedings, so that point of interpretation of the CPR need nor determined in this case."
However
this case, in my view, is not one where there are defects in the pleadings which
are capable of being cured by amendment but
is one when the whole basis of the
action involved is defective. This is not an application for Interlocutory
Orders and I am of
the view that this Court has inherent powers under the
Constitution to strike out a claim where, as here, it has no basis in law.
In
the
Kalses'
case the
Court of Appeal also dealt with the question of limitations and said that the
issues plainly raised serious questions that should
have gone to a full trial
but in this case the limitation periods are in my view quite crucial. The
claimant was not caught by surprise
by the raising of the issue of limitations
which may have been the situation in the
Kalses'
case
because this court had directed that written submissions be filed prior to the
hearing and the Claimants specifically addressed the
question of limitations in
its written and oral
submissions.
As
to the limitation questions, if the Claimants wished to establish that they were
custom owners of the land and sought compensation
for that land they would have
needed to have filed the claim within twenty years of 26 January 1981 being the
date of the transfer
of the land from the custom land owners to the Government
pursuant to the order (see section 7 (1) of The Limitation
Act.).
Again,
if the Claimants wished the Court to declare the agreement between the
Government and the Representatives of the former custom
owners of the Port Vila
Urban Land (see Annexure PT1 to sworn statement of Paul B. Telukluk) null and
void they would have needed
to take action under that contractual agreement
within six years of 17 July 1992 (see section 3 (1) of the Limitation Act.) I do
not consider that the twenty year limitation period can run from the date of the
agreement because the Government had no specific
dealing with and made no
specific offer to the Claimants at that
time.
Any
claim for judicial review would have needed to be made within 6 months of the
agreement (see Rule 17.5 of the Civil Procedure
Rules No. 49 of
2002).
In
summary, I am of the view that the Claimants have no cause of action in relation
to the specific amount of VT167, 019,930 which
is the subject of this action
arising from the lease of the land entered into in February 1986, and are out of
time in relation to
their challenge of the 1992
agreement.
SUMMARY
For
the above reasons I find that the claim does not disclose a cause of action and
does not entitle the Claimants to the relief that
they seek. Accordingly the
proceeding is struck
out.
COSTS
I
award costs against the Claimant to the Defendants on the standard basis as
agreed or as determined by the
Court.
Dated
AT PORT VILA, this 02nd day of September 2004
BY THE COURT
P.
I.
TRESTON
Judge
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