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Dinh v Kalsakau [2004] VUSC 76; Civil Case 215 of 2003 (18 May 2004)

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

Civil Case No. 215 of 2003

BETWEEN:

GILBERT DINH
Claimant

AND:

MR. AND MRS HENDEN KALSAKAU
Defendants

Coram: Justice Treston

Mr. Kabini for Claimant
Mr. Boar for Defendant

Date of Hearing: 07th May 2004
Date of Judgment: 18th May 2004

JUDGMENT ON SUMMARY JUDGMENT APPLICATION

CLAIM

In an amended Supreme Court claim the Claimant alleges that he is a business man and is the owner of all the land title 11/OB24/013. The Claimant contends that the Defendants are from Ifira island and are illegally operating a handcraft shop on his property since he acquired it on 21 December 1998. He say they are doing that without permission and without paying rent to him.

The Claimant alleges that the property was formerly owned by Seafront Development Limited a subsidiary company of Ifira Trustees Limited which is a company owned by the indigenous people of Ifira island. The property was mortgaged to Westpac Banking Corporation under a loan obtained by Seafront Development Limited and was repossessed by Westpac in 1998 after Seafront Development Limited failed to repay its loan. Thereafter, the Claimant purchased the property for the sum of VT62 million when the Westpac Banking Corporation put it out on tender.

Upon entering the property the Claimant found that the Defendants occupied part of the premises and were operating their handcraft business from it and despite numerous demands for the Defendants to move out of the property they refused and the Claimant has suffered loss and damages alleged to be in the total sum of VT7, 500, 000.

The Claimant claims against the Defendants as follows: -

1. Loss of earning as above

2. An order for immediate eviction of the Defendants from the property

3. Damages

4. Interest

5. Costs of the action

6. Any other orders, as the Court deems fit.

The Defendants filed a defence and counterclaim alleging that they are the custom owners of the land they are occupying and were already in occupation of the area they operate from prior to the entry of the Claimant upon the land. They confirm that they refuse to vacate the land because of their rightful occupation thereon and by way of counterclaim the Defendants contend that they are the custom owners of the land, and have occupied it since their ancestors did to date and that they were never consulted when the land was declared by the Government as public land and they contend that the Claimant had knowledge of this. They allege that they were never given notice of the intention of the Government to use their land and prior to the Claimant obtaining title by transfer to the said land in question they were already in occupation with the cognizance of the previous title holders. They contend that they have been deprived of their land by the registration of title thereon.

The Defendants seek a declaration that the Land Reform (Declaration of Public Land) Order No. 26 of 1991 is unlawful and of no effect as far as it relates to their land and that title 11/OB24/013 was unlawfully created and they seek an order that the register be rectified and that the registration of the Claimant's title be cancelled.

The Claimant now applies for summary judgment on the basis that the Defendants have no real prospect of defending his claim.

HISTORY

The action was originally filed and heard in the Magistrates' Court and summary judgment was entered in that Court on 7 November 2003 under Magistrates' Court Civil Case No. 137 of 2002. The Court also made orders that the Defendants vacate the property by 21 November 2003. Subsequently the Magistrates' Court held that there was a dispute over the validity of the title and it set aside the summary judgment and the enforcement warrant and transferred the case to the Supreme Court for determination.

This Court directed that the Claimant file and serve an amended statement of claim and that it is that action and the application for Summary Judgment that the Court now deals with.

SUBMISSIONS

The Claimant submits that the Defendants have no real prospect of defending the claim because: -

(1) The Claimant's good title is guaranteed by the Government of Vanuatu pursuant to law and especially pursuant to the Land Reform (Declaration of Public Land) Order No. 26 of 1981.

(2) The property, which is a subject matter of the proceeding, was formerly alienated land prior to independence.

(3) After independence the property became public land by virtue of the order referred to above under which the Government through the Minister of Land exercising his powers under Section 12 of the Land Reform Act [CAP. 123] declared it to be the public land.

(4) The Defendants contention that they are the custom owners of the property cannot defeat the Order in that way.

(5) The Claimant should have indefeasibility of title.

The Claimant argues that he is not the first proprietor of the property but is a transferee who acquired the title in good faith from Seafront Development Limited a subsidiary of Ifira Trustees Limited which is a trustee company of the indigenous people of Ifira including the Defendants. It is argued that the Claimant is in possession and acquired the interest for valuable consideration without knowing of any omission, fraud or mistake in consequence of which rectification is sought.

The Claimant contends that the Defendants' claim that they are the custom owners of the land cannot now defeat any title created over public land owned by the state.

The Defendants argue that in accordance with their sworn statement, they have occupied the land since 1993 and have developed the Land at no small expense and made an application to the land authorities on 4 September 1997. The Defendants claim that they had made a cash payment to Mr. Albert Thomas Baker together with providing items and other expenses. It is contended that there is a dispute between the parties about a substantial question of fact and a difficult question of law which ought not to be determined by the summary judgment procedure. It was submitted by the Defendants that if the Court were to rule that the order of 1981 was valid it would fail to consider whether the Defendants had been given any compensation for custom land which had been declared public land and would fail take into account that there was no negotiation with the custom land owners at the time that that order was made and the land become public land. It is submitted that the Defendants' counterclaim should be allowed and that they have a defence relating to the improvements they had effected on the land.

LAW

The Summary judgment procedure is set out in Rule 9.6 of the Civil Procedure Rules No. 49 of 2002. That provides: -

"Summary Judgment

(1) This rule applies where the defendant has filed a defence but the claimant believes that the defendant does not have any real prospect of defending the claimant's claim.

(2) The claimant may apply to the court for a summary judgment.

(3) An application for judgment must:

(a) be in Form 15;

(b) have with it a sworn statement that:

(i) the facts in the claimant's claim are true; and

(ii) the claimant believes there is no defence to the claim, and the reasons for this belief.

(4) The Claimant must:

(a) file the application and statement; and

(b) get a hearing date from the court and ensure the date appears on the application; and

(c) serve a copy of the application and sworn statement on the defendant not less than 14 days before the hearing date.

(5) The defendant:

(a) may file a sworn statement setting out the reasons why he has an arguable defence; and

(b) must serve the statement on the claimant at least 7 days before the hearing date.

(6) The claimant may file another sworn statement and must serve it on the defendant at least 2 days before the hearing date.

(7) If the court is satisfied that:

(a) the defendant has no real prospect of defending the claimant's claim or part of the claim; and

(b) there is no need for a trial of the claim or that part of the claim,

the court may

(c) give judgment for the claimant for the claim or part of the claim; and

(d) make any other orders the court thinks appropriate.

(8) If the court refuses to give summary judgment, it may order the defendant to give security for costs within the time stated in the order.

(9) The court must not give judgment against a defendant under this rule if it is satisfied that there is a dispute between the parties about a substantial question of fact, or a difficult question of law

The Court of Appeal said in Bokissa Investments Ltd v R.A.C.E Services Pty Ltd (in liquidation) [2003] VUCA 22; CAC NO. 21 of 2003 that the approach to be adopted to the interpretation and application of the provision is usefully summarized in the decision of the English Court of Appeal in Swain v Hillman [2001] 1 All ER 91.

Section 100 of the Land Leases Act [CAP. 163] provides as follows:-

"RECTIFICATION BY THE COURT

(1) Subject to subsection (2) the Court may order rectification of the register by direction 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.

(2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the interest for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default."

There is no dispute that the Land Reform (Declaration of Public Land) Order No. 26 of 1981 includes this land nor that the land in question became public land.

Section 7 (1) of the Limitation Act No. 4 of 1991 provides as follows: -

"LIMITATION OF ACTIONS TO RECOVER MONEY SECURED BY A MORTGAGE OR CHARGE OR TO RECOVER PROCEEDS OF THE TRANSFER OF ANY INTEREST IN LAND

(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 Court is satisfied that the Defendants have no real prospect of defending the Claimant's claim or any part of it. It is clear that the Claimant acquired good title to the land. He is in possession of the land, apart from that occupied by the Defendants, and acquired his interest for valuable consideration of VT62 million on 21 December 1998. (See Exhibit FLTK 2 to sworn statement in support of application for default judgment filed on 8 March 2004). There is no suggestion that the Claimant had any knowledge of fraud or mistake for which rectification could be granted and in fact no allegation as to that is made by the Defendants. After all, the Claimant was not the first lease holder and obtained his leasehold title by virtue of a successful tender to the Westpac Banking Corporation the mortgagee of Seafront Development Limited, the earlier registered proprietor.

The Defendants' counterclaim would lie against the Government rather that the Claimant and in any event the Court is of the view that any claim made by the Defendants setting aside the Land Reform (Declaration of Public Land) Order No. 26 of 1981 because of lack of negotiation with custom landowners, of whom he is only one, or because of the lack of compensation paid to custom land owners, is now statute barred by section 7 of the Limitation Act No. 4 of 1991 which effectively provides that no action may be brought to recover the 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. The order was dated 26 January 1981 and the Defendants have made no such claim until 1 April 2004, and in any event the counterclaim as pleaded cannot lie against the Claimant even if it were in time. But although the Defendants' by way of submission, allege they have a counterclaim against the Claimant for provision of money and material for the development of the said leasehold property prior to 1997, that was not pleaded as a counterclaim and that, in any event, is not an action which lies against the Claimant because the contribution and material, even on the evidence of the Defendants, was made prior to the Claimant obtaining title to the leasehold. So, if the Defendants consider that they have a claim against the Government for recompense for their custom land, that is not the concern of the Claimant nor does any action lie against him in that regard. Again if the Defendants consider that they did not receive their share of any compensation paid at the time the land was declared public land their action lies against other custom landowners or for example Ifira Trustees Limited, but again there is no action against the Claimant.

The Court repeats that it is of the view that the Defendants have no real prospect of defending the Claimant's claim or any part of it and there is no need for a trial of the claim or any part of it.

At this stage of the proceeding there is no proof by the Claimant to substantiate his claim for loss of earnings, damages or interest. Those are matters which can be determined at a quantum hearing. It is my view that the Court must enter the summary judgment for the Claimant against the Defendants for loss of earnings (yet to be quantified) and an order of immediate eviction of the Defendants from the property, and for damages (yet to be quantified) and for interest, (also yet to be quantified).

For the reasons that I have given, the Court is not satisfied that there is a dispute between the parties about a substantial question of fact or a difficult question of law.

Judgment is entered accordingly. I award costs to the Claimant against the Defendants on the standard basis as agreed or as determined by the Court.

I shall fix a date for hearing as to the quantum of the claim in consultation with the parties upon delivery of this judgment.

For completeness I also dismiss the Defendants' counterclaim because there is no cause of action against the Claimant in relation to it.

Dated at Port Vila, this 18th day of May 2004.

BY THE COURT

P. I. TRESTON
Judge.