William v William [2005] VUCA 25; Civil Appeal Case 21 of 2005 (18 November 2005)

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

Civil Appeal Case No. 21 of 2005

BETWEEN:

GLADYS WILLIAM
First Appellant

AND:

DON WILLIAM AND KENWAY WILLIAM
Second Appellants

AND:

EZRA WILLIAM
First Respondent

AND:

AHC (VANUATU) LIMITED
Second Respondent

Coram: The Hon. Chief Justice Vincent Lunabek
The Hon. Justice Bruce Robertson
The Hon. Justice Daniel Fatiaki
The Hon. Justice Patrick Treston

Counsel: Mr. Saling Stephens for Appellants
Mr. John Malcolm for Respondents

Hearing Date: 15 November 2005
Judgment Date: 18 November 2005

JUDGMENT

This matter previously came before this Court with a decision delivered on 4 November 2004. The background facts were fully set out in that judgment. This Court allowed the appeals by Gladys William, Don William and Kenway William and remitted the matter back to the Supreme Court for determination and to allow the parties to adduce further evidence relevant to their claim under section 17 (g) of the Land Leases Act [CAP. 163]

In accordance with that ruling, the Supreme Court had a hearing on 9, 10 and 11 May 2005 and issued a judgment on 22 July 2005. It is against that judgment that the Appellants Gladys William, Don William and Kenway William have appealed.

At the latest hearing in this Court, counsel reached an accommodation as to some of the outstanding issues. In particular they now agree that the Appellants have section 17 (g) rights over the 6 x 2.5 hectare blocks at the end of the two leasehold properties adjacent to title no. 04/262/002 and that the Appellant Mrs. Gladys William also has section 17 (g) rights over Kervimele Island at the other end of the leasehold block. These rights will subsist until the end of the lease period or until the party with the benefit of such rights waives those rights or fails to disclose those rights to a subsequent purchaser in terms of section 17(g).

It was further agreed that the Appellants would have the benefit of necessary rights of way up the side of the property so they can access these plots of land.

As far as the rest of the land is concerned the sole issue remaining to be determined is the nature of the "actual possession" of the Appellants Kenway William and Don William in two house sites which they occupy at the island end of the leasehold properties.

Those two Appellants Kenway William and Don William argued that their occupation of those sites was the same as the occupation of their 2.5 hectare sites, namely under section 17 (g) until the end of the lease period. The Respondents argued that their actual occupation was only in the nature of a licence which was determined on the sale of the leasehold by Mr. Ezra William to AHC (Vanuatu) Limited and consequently that those Respondents now have no further rights to those house sites and the surrounding curtillages.

This Court earlier ordered that the nature of the rights should be considered and determined by the trial judge pursuant to section 17 (g) on the basis of evidence from both sides. Unfortunately, due to non-compliance by the Appellants with the notice requirements of Rule 11.7 (4) of the Civil Procedure Rules No. 49 of 2002, the Respondents were not cross-examined and the primary judge did not have the benefit of seeing and hearing the witnesses for the Respondent in relation to the nature of the actual occupation of the house sites.

These disadvantages were compounded when the primary judge made contradictory findings in relation to the nature of rights of the Appellants Don and Kenway William over the house sites. On the one hand he said this: -

"That being so, I am satisfied that Don and Kenway William's rights to be on the land on which their houses stand are overriding rights under section 17 (g) of the Act. These overriding interests subsist indefinitely into the future over Title No. 04/2621/002 and over their 2 1/2 hectares specifically allocated to them by their father within Title 04/2621/008 which is now Titles 04/2621/008 and 04/2621/009."

On the other hand the primary judge said later in his judgment: -

"In the instant case it is the view of the Court that Ezra William's rights to the lease ended on the date of transfer of the said leasehold titles to AHC Ltd. That being so, it is also the Court's view that the rights of Don and Kenway as licensees also ended on the same date. It follows therefore that any development done to those parts of the land, including the planting of any cash crops or fruit trees of value therein during the time of their occupation, and including the costs of putting up houses would have to be done or assessed, and compensated by the Second Defendants."

Those contradictory findings cannot be reconciled by this Court nor can the diametrically opposed evidence as to the nature of the actual occupation of Don and Kenway William be determined by this Court which has not had the benefit of seeing and hearing the witnesses.

If it was only a licence which could be determined at will there are issues as to whether there would be any right to compensation upon termination. If there is not a continuing occupation right there could not be any legal responsibility on AHC (Vanuatu) Limited to compensate because the actual occupation will be deemed to have ended prior to their acquiring possession of the land generally.

We have reluctantly reached the conclusion that the matter must be once more remitted to the Supreme Court for consideration and determination by the trial judge as to the nature of the actual occupation by Don and Kenway William of those two house sites.

For the sake of clarity, it is important for this Court to stress that the balance of the leasehold land apart from 6 x 2.5 hectares blocks, to which we have already referred, (and until determination, the two house sites still at issue,) is not subject in any way to section 17 (g) rights. The Respondent AHC (Vanuatu) Limited has absolute rights to the possession and use of the balance of the properties apart from those specific areas. We understand from counsel that in the meantime there is no objection by the Second Respondent to any of the Appellants having access to and from their various blocks on the acknowledged right of way, but the Appellants must realize they have no other rights in relation to the balance of the property not specifically designated or to be found as subject to their rights. There is now finality over all issues apart from the nature and effect of the occupation of the house sites of the Appellant sons.

We specifically record other matters raised.

The first related to an endeavour by the Appellants to re-argue their case for rectification of the register on the basis that the registration of the leases was obtained by fraud or mistakes under s.100 of the Land Leases Act. That issue was determined by the primary judge in his decision of 18 May 2004 when he held that there was no fraud or mistake. That aspect of the decision was not pursued in this Court at the last hearing. That effectively disposed of that issue but we add that the claim in that regard was misconceived in any event.

Rights under s.17 (g) can never be greater on a transfer of a lease than they were prior to such transfer. Rights of actual occupation can thus never become rights of ownership. The present Appellants and the earlier Claimants are not precluded from commencing an action against the Respondent Ezra William in relation to the proceeds of the transfer of the leases in the case of Gladys William for matrimonial property entitlements or for all of them on the basis that Ezra held the whole or part of the land on trust for various family member for equitable relief but such action is for another place at another time.

The second issue related to the allegation of bias against the primary judge. After hearing submissions, counsel accepted that these allegations (and that is all they were) could have no effect on the substantive issues and therefore need no determination by us.

The issue of costs awarded in the Supreme Court was also subject to an appeal to this Court.

It seems that at the conclusion of the hearing on 11 May 2005, both counsel submitted pro forma that they should be awarded costs. When the primary judge read out his judgment in full on 22 July 2005 he said about costs as follows: -

"Judgment is therefore now entered in favour of the First and Second Claimants. The Defendants will pay Gladys William, Don and Kenway Williams' costs of and incidental to this proceedings (sic)".

When the reading of the judgment was completed, counsel for the Respondent asked to be heard on the question of costs and it seems common ground that counsel for the Appellants and counsel for the Respondents each addressed the Court at some length in relation to costs. Thereafter, an amended written judgment was issued which now read as follows: -

"Judgment is therefore now entered in favour of the First and Second Claimants. There will be no order as to costs. Each party are (sic) to pay their own costs".

The Appellants argued before us that the primary judge was functus officio and did not have the power to amend his order for costs once the judgment was delivered.

We are satisfied that the primary judge was entitled to amend the order that he made for costs in the way that he did particularly after hearing submissions from both parties. Rule 1.7 of the Civil Procedure Rules No. 49 of 2002 provides as follows: -

"If these Rules do not deal with a proceeding or a step in a proceeding:

(a) the old Rules do not apply; and

(b) the court is to give whatever directions are necessary to ensure that the matter is determined according to substantial justice."

We are satisfied that the matter was properly determined by the primary judge according to substantial justice, the end of the initial hearing before judgment was reserved only pro forma submissions were made by counsel as to costs. We are of the view that substantial justice was accorded to both parties when full submissions were heard from each of them once the result was known and that the subsequent order for each party to bear its own costs was appropriate.

This matter has already been of significant duration with now two decisions in the Supreme Court and two decisions in the Court of Appeal. It must be dealt with expeditiously and to that end we make the following orders: -

1. The appeals by Don William and Kenway William are allowed with regard to their respective house properties and curtillages, but in all other respects the appeal is dismissed in light of the concessionary acknowledgements and agreements recovered above.
   
2. These claims of Don William and Kenway William are remitted to the Supreme Court for the judge to determine the nature of their actual possession of those areas and in particular whether the two Appellants have section 17 (g) rights to the houses and curtillages until the end of the lease period or whether their rights of occupation terminated on the transfer of the leases from Ezra William to AHC (Vanuatu) Limited.
   
3. The Appellants Don William and Kenway William are given leave in the Supreme Court to file and serve further sworn statements solely on that specific issue (in 2 above) by 3pm on 9 December 2005.
   
4. The Respondents are given leave in the Supreme Court to file and serve sworn statements in reply solely on that specific issue (in 2 above) by 3pm on 30 December 2005.
   
5. The Supreme Court should allocate a trial preparation conference as soon as possible in February 2006 and allocate a hearing for the determination of the issue (in 2 above) soon as possible thereafter.
   

In the circumstances of this appeal we make no order for costs which must lie where they fall.

Dated at Port Vila, this 18th day of November 2005

BY THE COURT

Hon. Chief Justice Lunabek
Hon. Justice Robertson
Hon. Justice Fatiaki
Hon. Justice Treston