Traverso v Kolou [2003] VUCA 18; Civil Appeal Case 26 of 2003 (7 November 2003)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 26 of 2003.

BETWEEN:

THÉRÈSE TRAVERSO
Appellant

AND:

CHIEF KAS KOLOU
Respondent

Coram: Hon. Justice R. Robertson
Hon. Justice D. Fatiaki
Hon. Justice O. Saksak

Counsel: Mr. George F. Boar for the appellant
Mr. John Malcolm for the respondent

Hearing Date: Thursday 6th November 2003.
Judgment Date: Friday 7th November 2003.

JUDGMENT

In a judgment of 5^th September 2003, Treston J. gave judgment in favour of the respondent who had sought relief under s.100 of the Land Leases Act [CAP. 163] seeking rectification of the lease register.

In the proceedings before the trial judge the respondent as claimant alleged that the granting of a lease to the appellant by the Minister after he had been given incomplete and inaccurate information, without requiring any premium, without proper negotiation with the declared custom-owner and at a ridiculously low annual rental amounted in the circumstances to fraud or mistake.

The trial judge on the evidence before him found that the granting of the lease to the appellant was obtained dishonestly or by fraud, and ordered that the appellant's lease dated 19^th September 2002 and registered on 8^th October 2002 be cancelled. He also ordered costs against the appellant.

The grounds of appeal were expressed to be that the trial judge erred:-

1. In fact in finding that the respondent was to sole declared custom-owner of Eruiti land (where the appellant has registered lease) such that the appellant ought to negotiate the lease with him when there is in fact evidence of pending appeal before the Supreme Court and such existing dispute as to the ownership of Eruiti land such that the Minister had executed the lease pursuant to ss.8 and 9 of the Land Reform Act [CAP. 123] on that basis.
   
2. In law by finding that the respondent and other disputing custom owners ought to give their consent to the Minister prior to executing the lease under ss.8 and 9 of the Land Reform Act when such a requirement to give consent by disputing custom-owner is non-existent under the Act.
   
3. In law by finding that prior consent of disputing custom-owners and premium payment are determinative of the validity of the registered lease under s.8 of the Land Leases Act [CAP. 163].
   
4. In failing to take into account the fact that delay and/or failure in processing land appeal cases pending before the Supreme Court was due to the Court's financial resources to accommodate such appeal such that this explains why there was no hearing of the appeal in the Eruiti land Appeal Case No. 1 of 1989.
   
5. In law and/or fact by finding there was no "negotiation" when there was sufficient evidence to establish that the appellant and her agent had complied with all procedural formalities under the Land Reform Act and the Land Leases Act leading to the Minister's execution of the lease which is in itself indicative of "negotiation" having taken place.
   
6. In fact or in law by finding that Akau Kaltamat was not a party with the respondent in the Island Court proceedings No. 1 of 1989 since there was sufficient evidence to establish that he was a party with the respondent which won the case and further by failing to take cognizance of the fact that land in Vanuatu are community-owned and not individually-owned.
   
7. In law in finding that there should be premium paid by the appellant in order to obviate appearance of fraud when under s.1 of the Land Leases Act a lease can be obtained with or without consideration.
   
8. In law by determining the terms and conditions of the lease entered into between the appellant and the Minister pursuant to ss.8 and 9 of the Land Reform Act.
   
9. In law in failing to take cognizance of the Minister's discretion under ss. 8 and 9 of the Land Reform Act to execute the lease on the terms that he did.
   
10. In law by failing to find that there was in fact fraud and/or mistake pursuant to s. 100 of the Land Leases Act committed by the appellant and/or her agents but although there was none, nevertheless proceeded to order cancellation of the leases.
    
11. By holding that the leases be cancelled, the trial judge pre-empted the decision of the Supreme Court in Land Appeal Case No. 1 of 1989 as to the customary ownership of Eruiti Land which is still pending before the Supreme Court.
    

Based on these grounds the appellant seeks that -

(a) the appeal be allowed;

(b) the decision of Treston J, dated 5^th September 2003 be set aside; and

(c) the respondent pays the appellant's costs of this appeal and of the Court below.

In the course of the hearing it became apparent that the critical issue was whether there was a proper evidential basis upon which it was open to the judge to determine that there had been fraud or mistake in terms of this section in to what had occurred.

The facts and chronology are not seriously in dispute. On 24^th April 1989 the Efate Island Court declared Chief Kas Kolou the rightful representative of the custom owners of the land in question.

It was alleged and accepted for the purposes of the hearing that an appeal from that decision had been filed within 30 days in the Supreme Court by a person who is now deceased and that such appeal has not yet been determined.

We observe that there could have been an issue in this case as to whether there was in fact a dispute about custom ownership at all so as to bring into play the ministerial power and authority. When there has been a determination by an Island Court followed by the filing of an appeal it should not be assumed that that creates the circumstances of a dispute. Here the pleadings did not challenge fact that this was not a situation where the Minister could act and Mr. Malcolm specifically disavowed that as any part of his case. We proceed to deal with the appeal on the basis that there was a dispute but we hag the issue for subsequent litigation as to whether that is in fact appropriate. Whether there is a dispute or not is a matter for the Court and not for the Minister. It is the pre-requisite which gives the Minister jurisdiction to act and that must always be subject to the supervision and control of the Court.

In May 2002 Mme. Traverso applied for a Negotiator's Certificate for the land in question. On the 18^th July 2002 the relevant land (which had been for some considerable period of time public land) ceased to be public land and was thereafter available to be enjoyed by the relevant custom owners.

On 26^th July 2002 Mme. Traverso obtained a negotiator certificate. Negotiations were said to have been commenced by her agents Laho Limited on 13^th August but we note that an approval under the signature of Chief Joel Telemaat is in fact dated prior to that. Nothing turns on that point although it is part of the total flavour of the case.

The critical issue is that on the 13^th August Mme Traverso by her agent Laho Limited sent to the respondent Chief Kas Kolou a letter asking for consent to the proposed transaction and inviting the Chief to respond within 30 days. There is no precise evidence as to when that letter was received although it seems a reasonable implication that it was some days if not weeks after 13^th August 2002.

On the 13^th September which is exactly a month later Mr. Carlo as agent for Mme. Traverso sent a letter to the Minister in which it was asserted that Chief Kas Kolou had consented. There was a request that the Minister accordingly deal with the land under the Act on the basis that there were consents from people who were in dispute.

The judge below found that there was no consent given and that there was no basis upon which Mr. Carlo could make that assertion. The judge held that in those circumstances there was fraud or mistake because of a total failure to properly advise the Minister of the adjudication which had taken place in 1989 by the Island Court and because it was simply not true to say that Chief Kas Kolou had given any consent at all.

Mr. Carlo had written this extraordinary letter which suggested that if the Chief didn't reply within 30 days, he would be deemed to have agreed with what was being asked for. We know of no rule of law which permits anybody to do that to a person who has a Court Order in their favour.

We, like the judge below also note that all of this was attended to with extraordinary speed. The Chief was not even given the 30 days promised to respond before the letter of 13^th September with untrue assertions went off to the Minister.

The Minister very quickly dealt with the matter. Thereafter there is an extraordinary memo from the Director to a member of his staff requesting that this matter be given particular urgency in and dealt with in the week. That happened accordingly.

A lease for 75 years with no premium and at an annual rental of VT3,950 was granted to Mme. Traverso.

We are left with absolutely no doubt that on the evidence which was available, it was open to the trial judge to be satisfied that because of the failure to provide relevant information and the assertion of a material fact which was not true, that there was in terms of the statutory regime fraud or mistake. Any other conclusion would have been perverse. The judge had no option but to make a declaration accordingly.

It is to be remembered that as well as those matters (which we see and which the judge saw as being of critical importance) the fact that we are dealing with prime seaside land just at the end the tar sealed road for less than VT4,000 per annum and with no premium raises serious doubts in and of themselves. They must raise question marks and call for circumspection and enquiry.

As with the judge below we root this appeal decision in the failure to provide information which should have been provided and the assertion of a consent which did not exist.

There can be no challenge to the legal analysis or reasoning of the judge nor could any other conclusions be reached on the facts.

Accordingly the appeal is dismissed, the orders which were made in the Supreme Court are confirmed. The lease is in terms of Section 100 of the Act set aside and declared to be nullity. It must be removed forthwith from the register.

Mme. Traverso, or anyone else with legal rights, can commence proper negotiations with those who the Courts have declared have rights to speak for and on behalf of the people.

We note that Mme. Traverso apparently paid to her agent Laho a sum of VT5,500,000 to obtain a lease of this land which was worth only some VT4,000 per year in rental. That is not an issue which is before the Court and we make no orders with regard to it.

The appeal is dismissed. The respondent will have his costs in the normal way.

The only consequential order is that Mme. Traverso is entitled to a refund of any rental money she has paid.

Dated at Port Vila, this 7^th day of November 2003.

Hon. J. B. Robertson J.
Hon. D. Fatiaki J.
Hon. O. A. Saksak J.