Kalomtak Wiwi Family v Minister of Lands [2005] VUCA 29; Civil Appeal Case 22 of 2004 (18 November 2005)

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

CIVIL APPEAL CASE No. 22 of 2004

BETWEEN:

JOHN KALOMTAK WIWI FAMILY
Appellant

AND:

MINISTER OF LANDS
First Respondent

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
Second Respondent

Coram: Chief Justice Vincent Lunabek
Mr Justice Bruce Robertson
Mr Justice Daniel Fatiaki
Mr Justice Oliver Saksak
Mr Justice Hamlison Bulu

Counsel: Mr George Boar for the Appellant
Mr Dudley Aru & Ms Florence Williams for the Respondents

Date of hearing: 10 November 2005
Date of Judgment: 18 November 2005

JUDGMENT

This is an appeal from a decision of Justice Treston delivered on the 2nd September 2004 following a hearing in the Supreme Court at Port-Vila on the 13th July and the 19th of August of that year.

The Judge struck out the Claimant’s entire proceeding on the basis that it did not disclose a cause of action and ordered costs to be paid to the Defendant on the standard basis as agreed or as determined by the Court.

In an amended statement of claim filed on the 15th March 2004, the Appellant sought:-

- a declaration that compensation payment for Port-Vila urban land made in 1993 to various relevant communities were null and void as being in breach of the Constitution;

- an order that the Respondents pay VT167,019,930 to the Appellant from its Trust Account; and

- interest on the said sum of 12% from 1986 to the date of release of the said amount and costs.

The grounds of appeal were that:-

1. The learned trial Judge erred in law by finding that since the Appellant did not challenge the Agreement of 17th July 1992 (which Agreement enabled the Government to pay compensation to the communities of Erakor, Pango and Mele) and the whole proceedings were struck out for disclosing no cause of action whilst the Appellant’s contention was that, by operation of law, such an Agreement could not stand, thus the Appellant was entitled to claim compensation and seek the relief that it sought on the claim.
   
2. The learned trial Judge failed to give any or proper weight to the evidence before the Court in order to obtain the relief that the Appellant seeks.
   

There is little dispute about the history of this matter. By virtue of the Land Reform (Declaration of Public Land) Order No. 26 of 1981, the Government of Vanuatu declared that all the land within the Urban Physical Planning Boundaries of Port-Vila was public land. Included within this declaration was Erakor Village.

The former custom owners of the land were deprived of the use of their land by virtue of the said Order and pursuant to the more general powers contained in the Land Reform Act [CAP. 123].

The Land Reform (Port-Vila Urban Land Corporation) Order No. 30 of 1981 created a Corporation which had powers with respect to the public land so acquired and, generally to act and liaise in the management of the said land. It had extensive powers over the land and a duty to hold the funds accruing therefrom for the use and benefit of the persons properly entitled thereto.

In 1991 the Government of Vanuatu revoked the Order No. 30 of 1991 so that the Corporation which had been created ceased to exist and its functions were transferred to the Ministry of Lands. The Minister thereafter pursuant to Section 8 of the Land Reform Act executed leases on behalf of custom owners until such time that true custom owners had been determined.

On 17 July 1992, an Agreement was entered into between the Government of the Republic of Vanuatu and representatives of the former custom owners of Port-Vila urban land which dealt with compensation payments. There were four representatives for Erakor who signed the Agreement. The operative parts provided:-

“A. The Government has by virtue of the Land Reform (Declaration of Public Land) Order No. 26 of 1981 declared all that Land situated within the Urban Physical Planning boundaries for Port-Vila to be Public Land, such Land being delineated and coloured green/yellow on the map contained in the Schedule;

2. The former custom owners of the said Land have now been deprived of the use of the said Land by virtue of the said Order and the Land Reform Act [CAP. 123];
   

100. The former custom owners acting through their duly authorized Representatives acknowledge and accept the said declaration and its effect thereof;
     

4. The Government and the former custom owners acting through their duly authorized Representatives are desirous of effecting an agreement for compensation for loss of use of the said Land in accordance with the said Act;
   

NOW THEREFORE IT IS AGREED AS FOLLOWS:-

1. As compensation for the loss of use of the said Land by the former custom owners prior to the signing of this agreement the Government pays and the Representatives accept on behalf of the former custom owners (receipt of which is hereby acknowledged) the sum of VT275,400,000 in final settlement for the said loss, payable as follows:
   

(a) To the Representatives of Erakor Village the sum of VT110,160,000.

(b) ...

(c) ...

2. The Representative, the custom owners, their issue, successors in title, their personal or legal representatives howsoever appointed or authorized shall indemnify the Government from any claim that the money has not been properly paid out or further claims by others to such payment or to the said Land.”
   

We have no evidence as to how in fact the money so obtained by the Representatives of Erakor Village were expended or used.

The Appellant contends that it was custom land owner in respect of part of the land which was taken in Erakor Village. It notes in particular that in 1986 the Corporation executed a Commercial Lease title over the land upon which there is now constructed Le Lagon Hotel and the Corporation received VT167,019,930 for the grant of the lease.

The Appellant contended that it and its predecessors have been the custom owners of relevant premises since 1884 and that on the 27 January 2000, Chief Waya Tenene and the Erakor Council Committee approved and confirmed that the Appellant was the custom owner of Land including the Le Lagon site.

As a result of all this the John Kalomtak Wiwi Family contends that they are entitled to receive the sum of VT167,019,930 which the Corporation received for the lease of the Le Lagon site during the time that it was responsible for caring for the relevant land.

There cannot be any argument that the Government has the power under Article 75 of the Constitution to acquire land and to hold it in the public interest. This is what occurred in 1981.

On its face the agreement of 17 July 1992 was a full and final settlement of the rights of compensation of the custom owners in respect of that compulsory acquisition. An agreed sum was paid to the representatives of the custom owners. The Government’s full responsibility was thereby met. It has never been contended that what occurred was an improper use of statutory power and therefore subject to judicial review. A party with an interest could have challenged the terms or conditions of the contract if they have been able to establish standing to do so.

A great deal of emphasis has been placed by the Appellant upon the fact that there was a lease granted to a company in respect of the Le Lagon site in the mid 1980’s for a very substantial sum. That was just part of the dealings of the Port-Vila Urban Land Corporation. That transaction would be a matter to be taken into account when the agreement which was settled in 1992 was reached. The fact that funds had been received on trust, does not alter the fact that the representatives of the custom owners were able to make whatever bargain they considered appropriate to make to settle all compensation issues with the Government.

Both in the Supreme Court and again in this Court this case has become unnecessarily complicated because emphasis has been placed on matters which do not logically follow or which are focused upon out of sequence.

The controlling position is really very simple. The Government lawfully took as public land the whole of Port-Vila urban area. It thereafter became the legal owner of it. The custom owners who suffered as a result were entitled to be compensated for their loss.

For a period of about 10 years the lands were superintended, controlled and operated by the Corporation. The Corporation no doubt entered into many transactions. All those transactions were between the Corporation on behalf of the Government at that point.

At the heart of the Appellant’s claim is the notion that the Corporation was acting for and on behalf of the landowners. That is not the position. There was an unsatisfied right to compensation but the transactions which occurred thereafter were not for and on behalf of the former custom owners but for and on behalf of the Government who had acquired the land.

The Corporation was eventually abolished and the tasks which it had been doing were then taken over by the Ministry of Lands. The claim for compensation of the custom land owners by the Government had not been satisfied at that time.

In 1992, a deal was done between the representatives of the affected people and the Government.

No one challenged the legality or propriety of that at the time or within permitted limitation periods.

What rights the current Appellant has in respect of the part of the money which was received by the representative of Erakor Village, is not before us. But any right of action which the Appellant family could have must be against those who received the settlement funds which they negotiated on behalf of all custom owners.

The present Appellant knew that the settlement had taken place and it did nothing to challenge it. Any challenge to that deal is now statute-barred.

In law the Government has paid to the Representatives of the people who lost their land in the 1981 acquisition by the 1992 payments. The Appellant is bound by the Agreement which was negotiated by its Representatives. There is no evidence which suggest that its representatives acted without authority. Judge Treston noted that one of the negotiators, was in fact the very Chief of Erakor whom the Appellant relies upon to confirm that it is the custom owner of the Le Lagon site.

There is no suggestion of fraud, lack of knowledge, of lack or understanding over what was occurring at that time.

The issues have long since been determined. There is, as the Judge below held, no proper basis upon which these Appellants could now succeed on the proceedings as they have prepared.

As the Judge noted there are strict rules about strike out. However assuming as we must on a strive out that every assertion made by the Appellant could be properly proven and sustained, the Appellant family would not be entitled to the relief that it seeks. It is one of those rare cases about which one can be confident about the outcome. Therefore it was right that the proceedings should immediately be put to an end. The Judge below was entirely correct to strike the proceedings out.

The appeal is accordingly dismissed. The Appellant will pay normal costs to the Respondents as agreed or if necessary to be assessed by the Court.

DATED at Port-Vila this 18th Day of November 2005

BY THE COURT

VINCENT LUNABEK CJ
J. BRUCE ROBERTSON J
DANIEL FATIAKI J
OLIVER A. SAKSAK J
HAMLISON BULU J