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Family Kalsakau v Chief Mantoi Kalsakau III [2006] VUSC 72; CC 154 2005 (3 October 2006)

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

CIVIL CASE No.154 of 2005
Civil Case No.116 of 2005
Civil Case No.116 of 2005

CIVIL CASE No.154 of 2005

Coram: Chief Justice Vincent Lunabek

Mr John Malcolm for the Applicants in CC 116 of 2005
Mr James Tari for the Applicant in CC 154 of 2005
Mr Tom Joe Botleng of the State Law Office for the Respondents in both cases

RESERVED REASONS FOR JUDGMENT

Before the Court are two (2) applications for Judicial Review. The First application is dated 19 August 2006 and filed by Family Kalsakau represented by Kalpokor Kalsakau of Port-Vila, Vanuatu. It claims for the following:-

1. A declaration that the decision of the Fourth Defendant and/or through it, to grant the Certificate of Registered Negotiator to Ifira Trustees Limited ("ITL") of 28 June 2005 be called up and quashed.
2. A declaration that the decision of the Third Defendants and/or through it, to grant the lease title 12/0911/333 to ITL on 29 June 2005 be called up and quashed.
3. A declaration that the Certificate of Registered Negotiator issued to ITL on 28 June 2005 be and is hereby set aside.
4. A declaration that the lease title 12/0911/333 granted to ITL on 29 June 2005 be and is hereby set aside.
5. A mandatory order requiring the Third Defendant to approve forthwith the lease title 12/0911/332 in favour of the Claimant family.
6. An order that the First, Third and Fourth Defendants pay costs of this application to the Claimants.
7. Such further or other orders the Court deems just.

The second application is dated 16 September 2005 and filed by Ifira Trustees Limited of Port-Vila. It applies for Orders:-

1. That the Second Respondent register Lease Title No.12/0911/333 in the name of the Applicant.
2. The costs and incidentals to the application.

Both applications seek to review two (2) leases issued over a piece of land or over part of it. None of the two (2) leases are registered.

On 2 March 2006, the Court issued the following Orders and reserved the reasons.

"ORDER

UPON hearing counsel’s submissions, and considering the evidence before the Court, the Court makes the following ORDERS:

1. That the Decision of the Fourth Defendant and/or through it, to grant the Certificate of Negotiator to Ifira Trustees Limited ("ITL") of 28 June 2005 is called up and quashed.

2. That the Decision of the Third Defendant and/or through it, to grant the Lease Title 12/0911/333 to ITL on 29 June 2005 is called up and quashed.

3. That the Certificate of Registered Negotiator issued to ITL on 28 June 2005 be and is hereby set aside.

4. That the lease title 12/0911/333 granted to ITL on 29 June 2005 be and is hereby set aside.

5. That mandatory Order requiring the Third Defendant to approve forthwith the lease title 12/0911/332 in favour of the Claimant Family is refused as it is premature.

6. That the Declaration/Order sought by the Applicant in CC 154/05 requiring the Second Respondent, Director of Lands to register Lease Title 12/0911/333 in the name of the Applicant ITL is refused.

7. That the First, Third and Fourth Defendants in CC 116 of 2005 and Appellant in CC 154 of 2005 pay the costs of this action to the Claimants in CC 116 of 2005.

8. The full reasons of the Orders be provided in due course.

Dated at Port-Vila this 2nd day of March 2006

BY THE COURT

Vincent LUNABEK

Chief Justice"

The reasons for the Orders of this Court issued on 2 March 2006 are set out below.

The following are the sequence of events leading up to the claims:

• Sometime before February 2005, Family Kalsakau entered negotiation to lease a portion of a land at Malapoa point they assert it was their custom land which was alienated prior to 1980. Their negotiation was for an amount of 500 million to a total claim.
• On 15 March 2005, they applied for a Negotiating Certificate and on the same date, received recommendations by:-

(a) The Shefa Province;
(b) Environment Unit;
(c) Survey Department;
(d) Land Tribunal;
(e) Lands Department.

• On 21 March 2005, the Negotiator Certificate was issued.
• On 15 April 2005, Lease No.12/0911/332 was signed by the custom owners;
• On 26 May 2006, the State Law Office recommended the lease;
• On 28 June 2005, Ifira Trustees Limited applied for and obtained a Negotiator Certificate for the same land signed by Hon. Barak Sope, then Acting Minister for Lands;
• On the next date 29 June 2005, the Acting Minister, Hon. Barak Sope, Signed a Lease to Ifira Trustees Limited for sum, no premium and a yearly rental of VT1.9 million.

EVIDENCE

The evidence were by way of sworn statements and cross-examination of the deponents of the statements

In relation to Civil Case No.116 of 2005, the following sworn statements were filed:

Kalpokor Kalsakau filed five (5) sworn statements, respectively on 6 July 2005 (x3), 23 August 2005 and 19 October 2005. He gave evidence on the basis of his sworn statements but he was not cross-examined by Mr James Tari nor state counsel on the contents of his statements. The contents of his sworn statements are accepted as factual evidence. Mr Geoffrey Robert Gee filed a sworn statement in support of Family Kalsakau’s case in CC 116 of 2005 dated and filed 1 November 2005. He gave evidence about his practice in Vanuatu since 1985 as an expert at conveyancing in Vanuatu which forms a primary position of his work in the practice. He describes his involvement of Land Leases over 20 years and involved in hundreds of cases requiring Negotiating Certificates and the subsequent issues of Leases emanating therefrom. The normal process for obtaining a Negotiator Certificates is: (1) The land and custom owner must be identified; (b) application for a Negotiating Certificate lodged with the Minister of Lands approving proposed Lessee and certifying the true custom owner on the certificate. Once obtained, this gives the Lessee the right to negotiate and obtain a Lease under law. The normal time for acquiring such a Certificate assuming that there are no problems, whatsoever, is in his experience between 6 weeks up to 6 months. On obtaining such a Negotiator’s Certificate, the following steps are required prior to the issue of a Lease by Lands:

(a) Obtain approved survey plan;

(b) Negotiate the new lease;

(c) Submit to Minister for approval.

He was cross-examined on the content of his statements and he was not moved away from what he said therein. His evidence is accepted save for the conclusion of law he made in paragraph 9 of his sworn statement which is rejected.

Mr Russel Nari swore a statement on 27 February 2006. It was accepted by consent of all counsel as evidence. He was not cross-examined as to the content of it.

As to Civil Case No.154 of 2005, Mr Tari Kalterikia, the Manager of Lands of Ifira Trustees Limited, filed two (2) sworn statements respectively on 16 September 2005 and 25 October 2005.

He deposes to the effect that the Minister of Lands has already signed Lease Title No.12/0911/333 but the Respondent refused to register the said Lease Title and there is another Supreme Court Case No.116 of 2005 against the Ifira Trustees Limited and the Government over Land Lease Title 12/0911/332. He further deposes that there is a pending Land Case No.5 of 1996 over the land in the Island Court where Land Lease Title No.12/0911/333 is situated.

He stated that because there is a dispute over the land, in consultation with the community of Ifira land and with their consent, he applied to the Minister of Lands for a Negotiator Certificate over the land Title 12/0911/333. So the Minister granted the Negotiator Certificate to Ifira Trustees Limited. He finally deposes that on enquiry from the office of the Land Survey, the land Lease Title 12/0911/332 has been cancelled even before reaching the Department of Lands for formal documentations. He annexed a copy of undescribed document he swore to be a true copy of the registration records of new titles with the Land Survey Department. It is rejected as evidence of what he swore to be true because if the Ifira Trustees Limited intended to rely on the copy of such an undescribed document as evidence of the public records of Land Leases registration, it has to be properly done and by the public officer who has the custody of such land records registration.

Witness Tari Kalterikia was cross-examined by Mr Malcolm. He confirmed the Acting Minister Barak Sope signed the lease of 63 Ha in favour of Ifira Trustees Limited, with no land premium. He was evasive as to whether Ifira Trustees Ltd applied for a Negotiating Certificate. He said they wanted the Negotiator to be changed. He could not produce Ifira Trustees Ltd’s application for negotiating certificate. He could not produce a copy of Ifira Trustees Limited survey plan either. He said there was a dispute over the said land and a claim was lodged in Land Case No.5 of 1996.

DISCUSSION ON EVIDENCE: FACT FINDINGS

On the basis of evidence before the Court, the following facts are established:-

The normal process for obtaining a Negotiator Certificate is as follows:-

(a) the land and custom owner must be identified;
(b) Application of a Negotiating Certificate lodged with the Minister of Lands approving proposed Lessee and Certifying the true custom owner on the Certificate. Once obtained, this gives the Lessee the right to negotiate and obtain a lease.

On obtaining such a Negotiator’s Certificate, the steps required prior to the issue of Lease by Lands, are as follows:-

(a) Obtain approved survey plan;
(b) Negotiate the new lease;
(c) Submit to the Minister for approval.

The normal time between those steps and the approval of a Lease by the Minister following obtaining of the Negotiating Certificate by the Lessee is anything between 4 weeks to 3 months depending on the Minister and the administration within the Lands Department (evidence of Geoffrey Robert Gee).

The Family Kalsakau followed the required steps for issuing the Lease Title 12/0911/332. They entered negotiation to lease a portion of the land to a hotel claim for VT500 million prior to February 2005. They applied for a Negotiating Certificate on 15 March 2005 and on same date received recommendations by:-

(a) Shefa;
(b) Environment Unit;
(c) Survey Department;
(d) Lands Department.

The Negotiator Certificate was issued to them on 21 March 2005. On 15 April, the Lands Management Committee recommended a Lease issue. On 25 May 2005, Lease 12/0911/332 was signed by the custom owners. On 26 May 2005, the State Law Office recommended the Lease. On the same date (26 May 2005) the Lease was ready for the Minister’s signature.

On 11 February 2005, the Clerk of Efate Island Court, Jona Mesao, issued a "Memo" to Family Tulangi to appear before the Efate Island Court on 16 February 2005 for conference in relation to land Case No.5 of 1996. After the conference hearing, the presiding Magistrate, Jerry Boe, transferred the Land Case No.5 of 1996 to the Land Tribunal by Order dated 11 May 2005 [see Efate Island Court file records of Land Case No.5 of 1996 which was partly annexed to the further sworn statement of Tari Kalterikia of Ifira Trustees Limited dated 25 October 2005]. The sworn statement of Mr. Russel Nari, the Director General of the Ministry of Lands dated 27 February 2006, disclosed three (3) letters from Chief Paunimanu Mantoi Kalsakau III and his Council to Hon. Paul Telukluk, then Minister of Lands. The first letter is dated 27 April 2005. The essence of that letter is that Ifira Trustees Limited is to hold the Lease until a declaration is made by the Council of Chief of Ifira Island under Section 6 of the Land Tribunal Act of 2001 when the Ifira Trustees Limited will sit with the declared custom owners to resolve the issue. The Ifira Trustees Limited has already discussed potential development with land claimants and a decision is yet to be made by the Chief’s Council. The Chief and his Council believe they can resolve land ownership amicably between all parties should they proceed in that avenue. On 18 May 2005, the Chief of Ifira and his Council convened a meeting on the morning of 18 May 2005 on the contents of their letter of 27 April 2005 and resolved to revoke the effect of their first letter of 27 April 2005. The Chief and his Council are supporting the application of Family Kalsakau.

On 26 May 2006, the Chief of Ifira and his Council informed the Minister that due to the meeting of the people of Ifira on same date, the Chief and his Council withdrew their letter of 18 May 2005 and informed the Minister that their letter of 27 April 2005 shall remain.

On 26 May 2005, Family Kalsakau’s lease was ready for signature by the Minister. On the same date (26 May 2005) the Chief and his Council revoked their letter of 18 May 2005 and reinstate their letter of 27 April 2005.

On 28 June 2005, Ifira Trustees Limited applied for and obtained a Negotiator Certificate for the same land as Family Kalsakau and signed by Barak Sope the then Acting Minister of Lands on 28 June 2005. On the next date, 29 June 2005, the said Minister, Hon. Barak Sope signed a Lease to Ifira Trustees Limited for yearly rental of VT1.9 million. There is no premium. The land in question is about 60 hectares.

There was a dispute over the land in land claim No.5 of 1996. It was transferred to Land Tribunal in May 2005 by the Efate Island Court under Land Tribunal Act of 2001.

It is a fact that, Ifira Trustees Limited did not follow the required procedures before the lease Title 12/0911/333 was issued to them. There is no evidence of a survey plan by Ifira Trustees Limited. The evidence of Kalpokor Kalsakau which is not challenged and accepted by the Court is that the then Minister Barak Sope used the survey plan of the Family Kalsakau to issue the Lease 12/0911/333 to Ifira Trustees Limited on 29 June 2005. This is quite improper and irregular on the part of public officials.

In summary, the following difficulties or irregularities arose out of the issuance of the Lease Title 12/0911/333 to Ifira Trustees Limited:-

(a) There is no land premium.
(b) The annual rental is very low for waterfront land adjacent to Port-Vila.
(c) The lease was signed only 1 day after issuing of a Negotiators Certificate.
(d) There is no negotiation with purported custom owners despite that the Minister of Lands had been on notice as to Family Kaslakau claim by letter of May 2005 and the Lease Title 12/0911/332 waiting for signature by the Minister and lack of explanation as to why survey plan in re. Lease Title No.12/0911/332 is said to be cancelled.

There is also evidence from Kalpokor Kalsakau which is not challenged that Ifira Trustees Limited never authorized the application to lease Malapoa Point land, as the Board of Directors of Ifira Trustees did not meet to resolve that an application be made to lease the said land.

THE LAW AND ITS APPLICATION

The following are the relevant statutory provisions:-

• Section 8(1), (2) of the land Reform Act [CAP.123]; and
• Sections 8(3); 10(1), (2); 100(1), (2) of the Land Leases Act [CAP.163];

Those Sections are set out below for ease of reference:-

"PART IV
NEGOTIATIONS AND AGREEMENTS RELATING TO CUSTOM LAND
CERTIFICATE OF REGISTERED NEGOTIATOR

6. (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 of the negotiations.

(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.

"MINISTER TO HAVE GENERAL AND CONTROL OF CERTAIN LAND

8. (1) The Minister shall have general management and control over all land-

(a) occupied by alienators where either there is no approved agreement in accordance with sections 6 and 7 or the ownership is disputed; or

(b) not occupied by an alienator but where ownership is disputed; or

(c) not occupied by an alienator, and which in the opinion of the Minister is inadequately maintained.

(2) Where the Minister manages and controls land in accordance with subsection (1) he shall have power to-

(a) consent to a substitution of one alienator for another;

(b) conduct transactions in respect of the land including the granting of leases in the interests of and on behalf of the custom owners;

(c) take all necessary measures to conserve and protect the land on behalf of the custom owners."

"GENERAL POWERS OF DIRECTOR

9. The Director may exercise the following powers in addition to any other powers conferred on him by this Act-

...

(d) he may refuse to proceed with any registration if any instrument, or other document, or plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;

...

(g) he may state any case or reserve any question for consideration by the Court."

"LAND SURVEY PLANS

10. (1) The Director of Land Surveys upon application, and on payment of the prescribed fee, shall prepare or cause to be prepared in respect of each parcel, the subject of a lease required to be registered a survey plan, the original copy of which shall be retained by him, and certified copies of which signed by the parties to the instruments shall be attached to the original instrument of lease to be presented for registration and to the copies of the instrument to be retained by the lessor an the lessee.

(2) The plan shall bear a distinguishing number and shall referenced to the cadastral plan."

"RECTIFICATION BY THE COURT

100. (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.

(2) The register shall not be rectified so as to affect the title of a proprietor or 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."

Applying the law to the facts as found, the following circumstances are present which may give rise to a presumption of fraud or mistake in the granting of the lease to Ifira Trustees Limited in the present case:-

(a) The speed of transaction [the lease was signed 1 day after the issuance of a Negotiator Certificate to Ifira Trustees Limited].
(b) The normal steps/procedures were by passed in the issuance of the lease to Ifira Trustees Limited by the then Minister of Lands. There was no application for Negotiating Certificate (although a Negotiator Certificate was signed on 28 June 2005). There was no survey plan by Ifira Trustees Limited (as the evidence is that the Minister used the survey plan of Family Kalsakau to issue the lease 12/0911/333 on 29 June 2005 to Ifira Trustees Limited).
(c) There was no premium for 60 hectares of land in this case.

Those circumstances amount to fraud within the meaning of Section 100 of the Land Leases Act [CAP.163].

In the case at hand, there is a dispute as to the ownership of the land on which Lease Title 12/0911/332 or 12/0911/333 is situated. There is no doubt in law that the Minister of Lands has powers under Section 8(1) (2) of the Land Reform Act [CAP.123] to manage and control the land on behalf of the disputed custom owners. The existence of the power is established. However, the exercise of such powers cannot be made in contravention of the basic procedural requirements set out under the Land Leases Act [CAP.163].

Those are in substance the reasons for the Declarations and Orders 1, 2, 3, 4, and 6 made on 2nd March 2006. Those Orders were supported by the following judgments of the Court of Appeal:-

- Bouchard v. Lands Department, CAC 06 of 2003;

- Traverson v. Koulou, CAC 26 of 2003;

- Family Valele v. James Toure, CAC 01 of 2002.

In law, the Department of Lands is not required to register a lease which has been signed by the Minister of Lands consequential to a negotiating certificate in the circumstances described in the evidence.

As to Order 5 of the Order of 2 March 2006, Family Kalsakau seeks for a mandatory order requiring the Third Defendant, Minister of Lands, to approve forthwith the Lease Title 12/0911/0332 in favour of Family Kalsakau. The mandatory Order is refused as it is premature.

The Family Kalsakau’s Lease Title 12/0911/332 is not signed by the Minister of Lands and so is not registered in the Register. The Ifira Trustees Limited’s Lease was signed but never registered in the Register.

The power of the Court under Section 100 of the Land Leases Act is limited to rectification of the Register by directing that any registration be cancelled or amended. The Court has no power to make the mandatory order sought in Order 5, namely issuing a lease. For these reasons Order 5 of Orders issued on 2 March 2006 is refused as premature.

The Family Kalsakau were entitled to the costs and incidental to the proceedings.

Those are the reasons of the Orders of 2 March 2006.

DATED at Port-Vila this 3rd day of October 2006

BY THE COURT

Vincent LUNABEK
Chief Justice