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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. 102 of 2002
BETWEEN:
NAFLAK
TEUFI LIMITED & KALMAN KIRI
MANLANGAI,
TEUFI
CLAN SPOKEPERSONS
Plaintiff
AND:
JOSHUA
KALSAKAU
First Defendant
AND:
DIRECTOR
OF LAND RECORDS OFFICE
Second
Defendant
AND:
MINISTER
OF LANDS
Third Defendant
AND:
DIRECTOR
OF LANDS DEPARTMENT
Fourth
Defendant
AND:
THE
ATTORNEY GENERAL
Fifth
Defendant
Coram: Justice
Treston
Counsel: Mr. Mataskelekele
for Plaintiff
Mr. I. Kalsakau for
First Defendant
Mr. Edwards & Ms.
William-Reur for Second Defendant
Date of Hearing: 1st April
2004
Date of Judgment: 6th May
2004
JUDGMENT ON APPLICATION THAT CLAIM BE STRUCK OUT
APPLICATION
The
Second Defendant applies for orders that the claim be struck out and for costs
and for any other or further orders of the Court
considers appropriate upon the
grounds that the amended Supreme Court Claim does not disclose a cause of action
or alternatively
that the claim as pleaded does not entitle the Claimant to the
relief
sought.
CLAIM
In
the second amended Supreme Court Claim, the Claimant seek orders that the land
lease register relating to Lease Titles 12/0633/415,
12/0633/065, 12/0633/066,
12/0633/067, 12/0633/068, 12/0633/069, 12/0633/070, 12/0633/071, 12/0633/072,
12/0633/073, 12/0633/074
to be rectified and the said leases be granted to the
Claimant because they were obtained by the First Defendant by fraud and/or
mistake and an order for damages in part or in the whole sum of VT 380, 781, 706
and for interest and
costs.
FACTS
The
Claimant contends that on 15 July 1996 it applied for a rural lease over part of
pre-independence titles in accordance with standing
procedures and including
written application to the Rural Land Leases Selection Committee, approval of
the custom owners and other
procedures in the legislation. It is contended that
correspondence took place and on 7 August 1997 the then Minister of Lands issued
a certificate of registered negotiator to the Claimant. A second certificate of
registered negotiator was issued to the Claimant
on 26 August 1998 when the
first certificate expired. It was contended that in or about 1998 or 1999 the
First Defendant and a land
enforcement officer in the Lands Department misled
and defrauded the Government Land Management and Planning Committee and the
Minister
of Lands into issuing the First Defendant with leases over part of the
titles referred to which leases should have been issued to
the Claimant as first
applicant. It seems that, according to the Claimant, that enforcement officer
assisted the First Defendant
to obtain a lease or leases over the titles even
though they had been approved for leasing by the Claimant. It is contended that
the Minister of Lands was misled by the circumstances to mistakenly issue leases
to the First Defendant.
In
addition it is contended by the Claimant that the Attorney General or his then
agent gave misleading verbal and / or written advice
to the Government Land
Management and Planning Committee and the then Minister of Lands contributing to
the mistaken and improper
decision by the Minister of Lands to issue leases in
favour of the First Defendant. Such advice included information that an
outstanding
land case involving Marope Land also applied to the land
concerned.
It is contended that
the Director of Lands gave misleading written advice to the Minister of Lands so
contributing to the decision
for leases being improperly issued over the titles
in question.
The Claimant
contends that the Land Leases Register relating to the lease titles in question
should be rectified and leases granted
to the Claimant pursuant to Section 99 of
the Land Leases Act [CAP. 163] because the above mentioned leases were obtained
by the First Defendant by fraud and or by
mistake.
It was contended that the
damages referred to above accrued by way of loss of potential economic benefit
from a planned investment
to subdivide, improve and sell residential plots in
the areas
concerned.
SUBMISSIONS
The
Second Defendant submits that there is a fundamental flaw in the Claimant's case
on the basis of the facts alleged in the statement
of claim in that it had no
right to the lease over the land. As it had no right to a lease it did not have
any right for the register
to be rectified to make it the registered lessee.
After all the Claimant did not contend that it was a custom owner or had any
other
entitlement. The fact the Claimant was registered negotiator did not give
it an automatic right to a lease. In this case, where customary
ownership was in
dispute the Minister acted as the lessor and the discretion as to whether a
registered negotiator obtained a lease
was vested in the Minister as lessor
under Section 8 (2) of the Land Reform Act [CAP.
123].
It is further submitted that
the Land and Planning Committee being a creature of statute had the function of
making recommendation
to the Minister as to whether he should grant a lease to a
negotiator and its recommendations could not bind the Minister. Accordingly,
the
Claimant did not have any rights to a lease even if it established that the
Minister was misled into granting the leases to the
First Defendant and that did
not give it a right to be registered as a
lessee.
In addition, it is
submitted that when one looks at the allegations of fraud or misrepresentation
they did not go to vitiate Minister's
decision in granting the First Defendant
the leases. There was no particularization of any conduct, act of fraud or
misrepresentation
by the Mr. Kirby named in the pleadings leading the Minister
to issue the leases over different land to that recommended by the Land
and
Planning Committee and no facts were alleged from which any such interference
could be drawn.
In addition, there
is no allegation in the statement of claim which, if proved, established that
the Minister could not lawfully issue
a lease over the land titles in question
to the First Defendant. Just because the Claimant was the original applicant did
not mean
that the Minister had to grant a lease to it. The Claimant might have
had a claim if it had been granted a lease over the land prior
to the granting
of the lease to the First Defendant, and if the Claimant's lease had not been
registered. But that was not the case.
In relation to the second alleged
misrepresentation of incorrect advice from the Attorney General, the only
significance and relevance
of that is, given the status of litigation, it could
be said that custom ownership of the land was in dispute therefore the Minister
had management and control over the land and could enter into the lease over the
land. There was no allegation in the claim that
the Minister did not have the
power to grant a lease over the land and it would be inconsistent with the
Claimant's case to say that
the Minister did not have power to grant a lease.
Misrepresentation as to the effect of the land claim referred to did not go to
the Minister's right to grant the First Defendant a
lease.
It is submitted that before
the Claimant could succeed under Section 100 of the Land Leases Act it must have
a lease between the Minister and the First Defendant set aside and that course
was not open to the Claimant in these
proceedings as it was not a party to the
lease and could not set it aside on general contractual
principles.
The Second Defendant
also submits that as the Claimant could not, on the pleadings, establish a right
to be granted a lease over the
land it must fail in its claim for a right to
compensation. In addition, as there was no breach of contract, negligent
misstatement
or any other cause of action alleged which caused it to suffer a
loss for which it is entitled to be compensated, it must fail in
its
action.
Counsel for the First
Defendant joined with the Second Defendant in its
submissions.
In response, the
Claimant submits that as there was an issue to be determined, the claim should
not be struck out. The issue to be
decided in the claim is whether the whole
process to grant a lease is the same as actually granting a lease. Section 100
of the Land Leases Act [CAP. 163] refers to mistake and fraud in obtaining the
lease and that must include the initial process of approval at Committee
stage
including the process of the Minister granting the lease. It was submitted that
once the certificate of a registered negotiator
was issued the Claimant had
status and fraud had been perpetrated at that stage. Moreover it is submitted
that there is no gap in
the pleadings as there was a legal connection between
the Committee and the Minister, and there was enough of an issue raised to
go to
trial on the merits of the case. A question for determination is whether the
first person to be granted a negotiator's certificate
should be first to be
granted a lease and as there was an issue to be decided the claim should not be
struck out. It was contended
that this is in the nature of a precedent case
issue.
LAW
In
its application the Second Defendant is asking this Court to exercise its
inherent jurisdiction separate from its powers under
the Civil Procedure Rules
No. 49 of 2002. It is effectively contended that the application is to strike
out the proceeding because
it has failed to show a reasonable cause of action. A
reasonable cause of action means one with some chances of success when the
allegations in the pleadings are considered.
Section 100 (1) of the Land
Leases Act [CAP. 163] are as follows: -
"RECTIFICATION BY THE COURT
(1) 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
Claimant not seek to say that his claim is based on any grounds other than fraud
or mistake.
Section 6 of the Land
Reform Act [CAP 123] provides as follows: -
"(1) No alienator or other person may enter into negotiations with any custom owners concerning land unless he applies to the Minister and receives a certificate from the Minister that he is a registered negotiator.
(2) A certificate issued in accordance with subsection (1) shall-
(a) state the names of the applicant and of the custom owners;
(b) give brief details of the land in respect of which negotiations are registered; and
(c) state the object
(3) If negotiations are completed without compliance with subsection (1) the Minister may refuse to approve the agreement between the custom owners and the unregistered negotiator and if he is an alienator may declare the land unsettled land.
That
means that a person cannot negotiate a lease with a custom owner without first
obtaining a negotiator's certificate to do so.
Section 8 (1) provides that if
the ownership of land is in dispute the Minister shall have general management
and control of it
FINDINGS
I
agree that there is a fundamental flaw in the Claimant's case in that on the
basis of the facts alleged in the statement of case
it has no right to a lease
over the land. Having no right to a lease, it is clear that it cannot have the
register rectified to make
it the registered lessee. It is clearly neither the
custom owner nor does it have any other entitlement to the land such as an
alienator
and under the legislation it is clear that simply because the Claimant
was a registered negotiator does not give it any automatic
right to a lease. The
discretion as to who obtains the lease is vested in the Minister as lessor in
the case of disputed land. it
is not a case of first in first served. The
Claimant simply does not have any legal status to bring the
action.
I also agree that
allegations of fraud or misrepresentation do go to vitiate the Minister's
decision to grant the First Defendant
a lease. There is no suggestion that the
Minister could not lawfully have issued the lease over the land in the relevant
titles and
in relation to the allegations about the misrepresentation concerning
the Marope land case all that led to was a conclusion that
the Minister had
management and control over the land and could grant a lease over it. The
Claimant simply does not have the status
to claim that the lease between the
Minister and the First Defendant must be set aside and that is a condition
precedent to its claim
for compensation. I cannot find any basis in the claim
itself which could found a cause of action. The Claimant did not obtain a
lease
over the period that it held a certificate of registered negotiator between 6
August 1997 and 6 August 1999. As to the claim
for compensation itself, that is
largely based on mere speculation. As the Claimant failed to secure any lease
itself, it cannot
establish on the pleadings what its prospective or potential
loss might have been.
CONCLUSION
I
find that the claim fails to show a reasonable cause of action and I strike it
out.
I award costs to the First
and Second Defendant at the standard rate as agreed or as determined by the
Court.
Dated AT
PORT VILA, this
06th
day of May 2004
BY THE COURT
P.
I.
TRESTON
Judge
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URL: http://www.paclii.org/vu/cases/VUSC/2004/94.html