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Mariwota v Estate of Kai [2008] VUSC 17; Civil Case 190 of 2006 (14 May 2008)

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

Civil Case No. 190 of 2006

BETWEEN:

CHIEF MORRIS MARIWOTA
Claimant

AND:

THE ESTATE OF OBED KAI AND MARAKI KAI
First Defendant

AND:

BEN KAI & SIMEON MALACHI ATHY
Second Defendants

AND:

DIRECTOR OF LAND RECORDS
Third Defendants

Coram: Justice C.N. Tuohy

Counsel: Mr. Stephen Joel for Claimant
No appearance for 1st Defendant
Ms. Thyna for 2nd Defendants
Mr. Loughman for 3rd Defendant


Date of Hearing: 14 May 2008
Date of Decision: 14 May 2008

RULING

1. The third defendant has applied to strike out the claim with the support of the second defendant. The amended claim seeks an order rectifying the register in respect of leasehold title No. 12/0714/001 pursuant to section 100 (1) of the Land Leases Act by cancellation of registration. It also seeks an order that the claimant’s community be permitted to remain in occupation of that leasehold title until they enter into an agreement to lease the land or are compensated for the improvements on it.

2. The essential facts underlying the claim have been set out in a sworn statement of the claimant and are not in dispute for the purposes of this application. The claimant is the Chief of the people of Malarip village, all of whom were originally from Tongariki Island.

3. He and his people have resided and worked on the land subject to the leasehold title (which contains 540 hectares) for at least 30 years.

4. Before Independence a freehold registered title had been issued in respect of the land under title number 2954. It was owned by the French State prior to being transferred by deed dated 22nd May 1973 to Société Civile E.E. Malarip d’Ebao. This is a partnership company governed by Joint Regulation number 9 of 1951, controlled by the claimant and his people. Under the same deed which transferred the land from the French State to Société Civile E.E. Malarip d’Ebao, the title was encumbered to the benefit of the French State with a prohibition against selling or granting rights over the land without the French Resident Commissioner’s consent, such encumbrance to remain in force up till 21st May 1998. By a deed of 16th April 1975, the property was mortgaged to the benefit of Caisse Centrale de Coopération Economique, a French Government entity, to secure a loan of 800,0000 New Hebrides Francs. The claimant and his partners and family repaid that loan to completion before 1998.

5. After independence, Société Civile E.E. Malarip d’Ebao took no steps to convert its freehold title to a leasehold title under the Alienated Land Act [Cap. 145] and the Land Reform Act [Cap. 123]. In 1992, the claimant completed an application to lease the property but this did not result in the issue of a negotiator’s certificate. In 2001, the claimant authorized his son to once more make an application to lease the land. Again there was no response and no negotiator’s certificate was issued.

6. The next development was that on 11th October 2001, an agricultural lease was entered into in respect of the land, under which the lessors are Obed Kai and Maraki Kai, the first defendants, and the lessees are Ben Kai and Athy Simeon Malachi, the second defendants. That lease was for 75 years. There is no dispute that Obed Kai and Malachi Kai, both whom are now deceased, were the custom owners.

7. The Secretary General of the Malvatumauri National Council of Chief wrote to the Minister of Lands on 17th October 2001 on behalf of the claimant’s people. The letter advised the Minister of Lands that a group of families of Tongariki people had been occupying and developing the land from 1972 and they had been living on the land for 30 years through a customary agreement with the custom land owners. During those 30 years the Tongariki community had paid for the custom lease in the form of animals, food stuff, manpower and so on. However, the letter said that the new lease had been signed on 11th October 2001 without the knowledge of the current residents. The letter asked the Minister to withhold the new lease agreement until the dispute was settled by the Chiefs of Efate. The letter also advised that if not the current residents would be claiming compensation for the period of 30 years of developing the property. It is obvious that that letter did not achieve its desired result because the lease was registered 11th February 2002. The next relevant step is that this proceeding was issued.

8. The first ground of strike out is a technical one. The third defendant submits that the claim fails to identify any statute or principle of law on which the claimant relies in breach of Rule 4.2 (1) (c) of the Civil Procedure Rules. I do not accept the submission. The statute which the claimant relies upon as the foundation for its claim is section 100 (1) of the Land Leases Act. That section is clearly identified in prayer A of the claim. As an aside, I do not read Rule 4.2(1) (c) as requiring the identification of a statute or principle of law in every claim, rather only in those in which there is specific reliance. For example in the standard breach of contract or negligence case it is not considered necessary to mention any statute or specific principle of law.

9. However, the third defendant stands on stronger ground in relation to the substantive issues. The claimant alleges that there was fraud and mistake in the registration of the lease between the first and second defendants because the land was state land under the Law Reform Act and therefore only the Minister could grant leases of it. State Land is defined in section 1 of the Land Reform Act as "all land in Vanuatu which on the 1st day of January 1980 was owned in freehold or perpetual ownership by the British Government, the French Government, the Condominium or a Municipality". This land was not owned by the French Government at the date of Independence. It was owned by Société Civile E.E. Malarip d’Ebao. Mr. Joel had to accept that position during the course of the argument.

10. It was also alleged that the claimant was the alienator under the Alienated Land Act and that the lease between the first and second defendants ought not to have been executed without payment of compensation to the claimant for the improvements contrary to section 3 of the Land Reform Act. I have no doubt that Société Civile E.E. Malarip d’Ebao was the alienator of the land in terms of section 1 of the Land Reform Act, in that it was the legal person which immediately prior to the Day of Independence had freehold ownership of the land and it was in first physical occupation of it. However, under section 3 of the Alienated Land Act, a person who claimed to be an alienator had to apply be registered as such within three months of the coming into force of the Act which was on 1st August 1982. No such application was ever made.

11. Section 8 of the Alienated Land Act provides:

"LOSS OF RIGHTS OF ALIENATOR

8. A person who does not make an application in accordance with section 3(1) shall not have any rights as an alienator in respect of any land".

Therefore, Société Civile E.E. Malarip d’Ebao lost the right of an alienator under s. 3 to remain on land occupied by it on the Day of Independence until such time as either it entered into a lease of the land with custom owners or received payment for improvements to that land. There appears to me therefore to be no basis upon which the claimant or Société Civile E.E. Malarip d’Ebao can ever obtain an order under section 100 (1) of the Land Leases Act for cancellation of registration of the lease. The claim insofar as it seeks that must be struck out.

12. It does not follow that the claimant and his people either in their own right or in the person of Société Civile E.E. Malarip d’Ebao, have no right to remain in occupation or to compensation for the land. Section 17 (g) of the Land Leases Act provides that the proprietor of a registered lease shall hold the lease subject to the overriding rights of a person in actual occupation of the land without their being noted on the register. From the facts disclosed in the sworn statement it may well be arguable that the claimant’s community had a custom right granted by the first defendants to occupy the land, which right was known about by the second defendants when the lease granted and which would continue regardless of the granting of a lease to the second defendants. In the event that such a right does not exist or is brought to an end, there may also be an arguable case that the claimant and his community are entitled to be compensated for improvements to the land either in custom or on the basis of the common law principles of estoppel or unjust enrichment.

13. However, it has to be said that this is not how the claimant has pleaded his community’s claim at this stage. I have considered whether the existing claim can be amended but I have come to the conclusion that any new claim on the above basis would not be an amendment in the real sense but rather a different claim for different remedies based on different legal foundations. It would also be a claim which did not affect the third defendant, the Director of Land Records. I have therefore come to the conclusion that this claim must be struck out in its entirety. That does not prevent the claimant or Société Civile E.E. Malarip d’Ebao filing another claim seeking to establish rights of occupation and/or compensation for improvements on a basis other than s. 3 of the Land Reform Act.

14. The claim is therefore struck out. Any party may make application for costs in writing within 14 days.

Dated at Port Vila, this 14th day of May 2008

BY THE COURT

C.N. TUOHY
Judge