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Rolland v Kele-Malapa [2007] VUSC 50; Civil Case 16 of 1997 (22 May 2007)

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

Civil Case No. 16 of 1997

BETWEEN:

YVES JEAN MARIE ROLLAND
First Defendant to Counter Claimant

AND:

HOUPETTE KELE- MALAPA & FAMILY
Counter Claimant

AND:

THE MINISTER OF LANDS
Second Defendant to Counter Claimant

AND:

THE DIRECTOR OF LAND RECORDS
Third Defendant to Counter Claimant

Coram: Justice Tuohy

Counsels: Mr. Sugden for Counter-Claimant
Mr. Timakata for 1st Defendant to counterclaim
No appearance for 2nd and 3rd Defendants to counterclaim

Date of Hearing: 16 May 2007
Date of Decision: 22 May 2007

RESERVED JUDGMENT OF JUDGE C.N.TUOHY

1. The only matter still live in this proceeding is the Defendant’s counterclaim which was filed as long ago as August 1999. It seeks an order under s. 100 of the Land Leases Act for the cancellation of registration of Lease 11/OH21/034 on the grounds that registration has been obtained or made by mistake. The Defendant has herself applied for a lease of the same land.

2. Mr. Timakata, who was solicitor on the record for the Claimant (First Defendant on the counterclaim) sought and was granted leave to withdraw. He has been unable to obtain instructions from the Claimant despite extensive efforts on his part. The Court appreciates his courtesy in appearing to explain his position.

3. The mistake alleged is that the lease was granted to the Claimant pursuant to his rights as an alienator under the Land Reform Act (Cap. 123) and the Alienated Land Act (Cap. 145) when in fact he had no such rights as a result of the provisions of s. 9 (1) (a) of the latter Act because he was at the time a prohibited immigrant.

4. The Defendant relied for evidence upon the affidavit of Irene Nangard sworn on 30 June 1999 and the statement of the Claimant sworn on 19 May 2006. Although these were filed on behalf of the Claimant they are evidence in the proceeding: R 11.7 (1) Civil Procedure Rules 49 of 2002.

5. The evidence shows that the lease dated 28 May 1986 was granted to the Claimant for 50 years from the Day of Independence pursuant to his presumed rights as an "alienator" in terms of the Land Reform Act and the Alienated Lands Act.

6. While the Claimant appears to have come within the definition of an "alienator" set out in s. 1 of the Acts, a certificate of the Principal Immigration Officer dated 25 September 1990 attests that the Claimant "was declared a prohibited immigrant to Vanuatu by the Minister Responsible for Immigration on 27 February 1981". Although the Claimant said that he was not aware of it at the time (he was living in New Caledonia) and that the prohibition was revoked in 1991, he does not deny that it was still in force in 1986 when the lease was entered into.

7. Section 9 (1) of the Alienated Land Act states that:

"A person who on the coming into force of this Act is –

(a) a person to whom paragraph (e), (f) and (g) of section 15 (2) of the Immigration Act, Cap 66 applies.................

shall not have the rights of an alienator in respect of any land except as provided in subsection (2).

Subsection (2) relates to compensation for improvements.

8. Section 15 of the Immigration Act relates to prohibited immigrants. Subsection (2) provides:

(e) any person who prior to his entry in Vanuatu or within 2 years thereafter, in consequence of information received from any government through official or diplomatic channels, or from any other source deemed by the Minister in his discretion to be an undesirable immigrant;

(f) any person who is a member of any class or group of persons declared by the Minister to be a prohibited class for the purposes of this section;

(g) unless the Minister shall otherwise declare, any member of the family and any dependant of prohibited immigrant.

9. Mr. Sugden submits that the certificate of the Principal Immigration Officer is evidence that the Claimant was at the relevant time a person caught by paragraph (e). Although the phrase used in that paragraph (and nowhere else in the section) is "undesirable immigrant", I am satisfied that the certificate means that the Claimant was the subject of a declaration made under s. 15 (2) (e) or its relevant predecessor (s. 15 (2) (e) of Joint Regulation 18 of 1971).

10. Therefore I am satisfied that the Claimant had no right to the grant of the lease at the time it was granted and it was granted by mistake. It follows that registration of the lease was likewise obtained or made by mistake.

11. The registered title to the lease is still held by the Claimant. Therefore, s. 100 (2) of the Land Leases Act cannot apply. Although there is no evidence of knowledge by the Claimant of the mistake, he did not acquire his leasehold interest by purchase.

12. Although s. 100 (1) by its terms gives the Court a discretion, I am satisfied that there is no reason why it should not be exercised in favour of the Defendant. I therefore order that the register be rectified by cancellation of the registration of Lease 11/OH21/034.

13. Leave is reserved to apply for costs within 28 days if it is thought worthwhile.

Dated AT PORT VILA on 16 May 2007

BY THE COURT

C. N. TUOHY
Judge