Roqara v Takau [2005] VUCA 5; Civil Appeal Case 25 of 2004 (3 May 2005)

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

Civil Appeal Case No. 25 of 2004

BETWEEN:

JONE ROQARA & LEON LALIE
Appellants

AND:

NOEL TAKAU, PAKOA ANDREW, CHARLEY PAKOA and BEN SAUL
Respondents

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu

Counsels: Mr. Robert Sugden for the Appellants
Mr. James Tari for the Respondents

Hearing Dates: 29 April & 2 May 2005
Judgment Date: 3 May 2005

JUDGMENT

This is a land matter. All parties are citizens of Vanuatu. The Respondents were the Claimants in proceedings in the Supreme Court in which they sought an order under s.100 of the Land Leases Act [CAP. 163] rectifying leases over titles 12/1011/002 and 12/1013/005 by cancelling the registration of the leases granted to the First and Second Appellants respectively.

Fraud and alternatively mistake leading to the registration of the leases was alleged.

In the Supreme Court there was also a claim joined for rectification of a further lease granted to Alfred Carlot who was named as the Third Respondent. However, that matter has been resolved and is not an issue before this Court.

The Supreme Court claim also named the Director of Land Records as the Fourth Respondent and the Minister of Lands as the Fifth Respondent. They took no part at the trial, having indicated to the Court at an earlier stage in the proceedings that they would abide the order of the Court.

There is a long history of litigation between the parties. The Supreme Court proceedings commenced in July 2000. The matter was first heard by Marum J. who decided in favour of the Respondents. The present Appellants appealed from that decision, and on 1^st November 2001 the Court of Appeal allowed the appeal and referred the matter back to the Supreme Court for retrial. The parties were given leave to amend their pleadings to raise issues, including an issue of mistake, which were not properly ventilated in the proceedings before Marum J.

The pleadings were substantially amended, and the retrial took place before Saksak J. in May and November 2003 and November 2004. The Judgment and reasons for judgment were delivered in December 2004. His Lordship held that the allegations of fraud had not been substantiated. However, he was satisfied that the registration of the leases granted to the Appellants had been obtained or made by mistake. Accordingly it was ordered that the leasehold titles be rectified by cancelling the registrations to the Appellants. The Appellants now appeal against that order, and seek to have the claims under s.100 of the Land Leases Act dismissed.

Although the allegations of fraud were not proved, to understand the issue before this Court it is necessary to refer to parts of the pleadings relating to the fraud allegations. The Respondents alleged that the Appellants had been guilty of fraudulent conduct in that they failed to bring information to the notice of the Rural Land Development Committee, causing the Committee to issue Certificates of Registered Negotiator to the Appellants. As the land was the subject of disputed custom ownership, under s. 8 of the Land Reform Act [CAP. 123] such certificate were not a prescribed pre-condition to the grant of leases by the Minister under s. 8 of the Land Reform Act [CAP. 123]. However the Ministry and Department of Lands had adopted the practice of issuing Certificates of Registered Negotiator to applicants who sought the lease of land which was the subject of disputed ownership. This was done as the Department required the Claimants for custom ownership to be consulted and their consent sought by the applicant for a lease: see s.6 of the Land Reform Act.

One of the matters that it was alleged that the Appellants had not brought to the attention of the Committee was an order of the Efate Island Court made on 22^nd April 1994 with effect from 15^th April 1994. The order was made in proceedings concerning the custom ownership of old pre-Independence titles 168 and 170. The leases later granted to the Appellants concerned part of the land in title 170. The order of the Efate Island Court provided:-

“1. That the Defendants are restrained from further development of any kind on land titles 168 and 170, until the Efate Island Court decides the true custom owner;

2. That there will be no selling of land within titles 168 and 170, until the Efate Island Court decides the true custom owner ...”

It was also alleged that Appellants had failed to disclose to the Committee that there were other people on the subject land who claimed to have leases or licences or customary rights to be in possession.

In their defence, the Appellants responded to the allegation of fraud by admitting the order of Efate Island Court which had been pleaded in paragraph 13 of the statement of claim, and by saying in paragraph 15 of the defence:-

“The Respondents’ say further, that the Fifth Respondent was not concerned at the stage in which he issued the Certificate of Registered Negotiator in respect of application for leases of disputed lands in pursuance of the procedure outlined ... (earlier set out in the defence) because the stage in which they were issued was the beginning of the process leading to the consideration of whether to grant a lease and, in the course of negotiation with the custom claimants, the survey of the land to be leased and the preparation of the lease by the Department of Lands, all of the information relevant to the Fifth Respondent’s decision as to whether the lease should be granted would be revealed.”

The allegations of mistake were pleaded by the Respondents in the alternative to the allegations of fraud. In particular, in paragraph 25 of the defence they pleaded:-

“In the alternative, the leases were entered into or granted by the Fifth Respondent, by reason of a mistake.

PARTICULARS

(a) The Minister of Lands at the time, Mr. Sato Kilman mistakenly believed that:-

• (i) proper administrative processes within the Lands Department and his Ministry had been observed when they had not: the Applicants repeat the matters sets out in paragraphs 16, 18, 19 – 21.
  
• (ii) the land the subject of the Leases was unoccupied and undeveloped;
  
• (iii) no circumstances existed which had not otherwise been disclosed to him which would justify refusal of the application for the Leases. Such circumstances which did exist and were not disclosed included:-
  
  • (a) the existence of the Island Court Orders referred to in paragraph 13 above;
    
  • (b) the settlement of some 400 people on the land in question between 1980 and 1992;
    
  • (c) extent of the unresolved land dispute between the custom owner claimants.”
    

The evidence indicates that the Appellants applied for the leases later granted to them in about July 1996. They completed forms which had been printed by the Department of Lands to be completed by applicants. These were not prescribed forms but sought information about the proposed land use if leases were granted. These forms were only partially completed, and one of the matters contested at trial was whether the failure to fully complete the information requested in the forms caused the Minister to be mistaken in believing that all administrative process within the Department of Lands and his Ministry had been observed.

Attached to these application forms was a sketch plan of the portion of title 170 in respect of which leases were sought. It seems that the land was then surveyed and formal plans prepared which were then submitted to the then Minister of Lands, the Hon. Joe Natuman on 20^th March 1997, and the Minister gave his consent to the creation of new rural leases to each of the Appellants. Formal lease documents were then drawn up in the prescribed form, and were signed the Hon. Sato Kilman, who had by then taken over as Minister of Lands, on 23^rd May 1997.

As will be noted from the pleadings in paragraph 25 of the Statement of Claim, set out above, the Respondents contended that Minister Kilman held mistaken beliefs about matters, including the order of the Efate Island Court, when he signed his approval to the formal leases granted under the Land Leases Act.

At trial, much evidence was led about the information which officers of the Department of Lands placed before the Minister Kilman, and about Minister Kilman’s state of knowledge about the matters where it was alleged he was mistaken, including the Efate Island Court. In the course of arguments before this Court, a question arose as to whether the relevant consent which led to the granting of the leases was that given by Minister Natuman, rather than the later approval by Minister Kilman. However, that was not an issue raised by the pleadings nor was it one considered in the evidence at trial. Having regard to the history of this matter, it is now far too late for the Appellants to endeavour to avoid the findings of the primary judge by altering the basis of their case to concentrate on the state of knowledge of Minister Natuman. The parties have chosen the issues upon which they wish to have the contest resolved, and justice requires that they be held to those issues.

On the question of mistake Saksak J. held:-

“Mr. Sato Kilman, the then Minister of Lands who signed the Defendant’s leases gave evidence for the Claimants. In examination in chief he was asked whether he had any information before signing the leases, he said he had none. It was put to him whether he had seen the Applications with a File, he said he did not recall seeing a File, only the applications. He said he never saw the Court Order and the letter written by Mr. Baxter Wright. He said he signed the leases alone.

The Defendants applications were tendered into Court as part of the evidence (Exhibits P8 and D18). It is not difficult to see that not all questions were answered. Jone Rogara did not answer Questions 3 (d); (4) (a) and (c); 5; 6; 7; 8; 9; 10; 11 and 12. He had basically answered only about 10% of the questions he should have answered.

Leon Lalie did the same thing as Jone Rogara. The evidence from Jone Rogara is that they did not know how to do it and so Alfred Carlot did it for them. That is precisely where the problem lies. The risk of someone else completing forms which may contain misleading information or incomplete information needed to assist the Minister made a fair judgment or decision. That did not happen in this case. The Court can only conclude that the granting of the leases by the Minister was done through mistake.”

Although the final sentence of the passage set out above forms part of a larger paragraph, we construe his Lordship’s judgment to indicate that he held both the Minister’s failure to see the Island Court order, and the failure of the Appellants to complete the application forms (referred to above) were both omissions which constituted mistakes causing the registration of the subject leases.

Argument before this Court at the outset concentrated upon the relevance of the order of the Efate Island Court. Having heard extensive argument on that matter, the Court, for reasons which follow, concluded that this issue was decisive of the appeal, and for that reason, the Court did not embark upon other grounds of appeal.

Counsel for the Appellants challenged the factual finding that Minister Kilman did not see the Island Court order, and the inference arising from that finding that he was not made aware of it by officers within the Department of Lands. The Court was taken at length through the evidence given at trial. We consider that the finding that the Minister was not made aware of the court order is fully supported by the evidence, and the challenge to the factual finding in this regard fails.

In particular we note the cross-examination of the Minister by Mr. Sugden which included:-

“Q: Was there a file?

A: I can’t recall any file just the applications. A pile of documents.

Q: Was it put with Island Court Order, letter by Baxter Wright?

A: No.

Q: There was a letter by Baxter Wright?

A: I have never seen a letter.

Court: Q: Was anyone with you when you signed the leases?

A: No.”

Next, it was argued that the Minister was entitled to disregard the order of the Efate Island Court. Counsel for the Appellants argued that, as a matter of law, the Island Court had no jurisdiction to make an order that was binding upon the Minister, and that in any event an injunction of that kind should not be made against the Minister, and could not be enforced by contempt proceedings. Counsel for the Appellants relied heavily upon a decision of Chief Justice D’Imecourt in Civil Case No. 126 of 1995 (Tretham Constructions Ltd v Malas [1996] VUSC 1) which had been brought to the attention of the Department of Lands in a letter written by the then lawyer for the Appellants (Mr. Baxter Wright) before either Minister considered the Appellants’ applications for grants of lease. In Civil Case No. 126 of 1995 an injunction had been made by the Efate Island Court in a land dispute matter restraining a lease holder, who had been granted a lease pursuant to s. 8 of the Land Reform Act, from subdividing the leasehold title, and from undertaking a development which they proposed. In the course of his reasons for Judgment the learned Chief Justice said:-

“The ‘function’ of the Island Court in land matters is to determine the ownership of custom land as between the parties before it. Under the Island Courts Act as we have seen, the Island Court has certain limited powers to grant injunctions restraining the ‘parties’ from occupying or using the land. Section 29 of the Courts Act extends to the presiding magistrate any other inherent powers of the Court, but he is still limited to the powers conferred on him by the written law, namely section 13 of the Island Courts Act. It is clear that the presiding magistrate under that Act has no power other than to injunct the ‘parties to the dispute’. The only parties to a dispute before the magistrate in a custom claim are the custom owners who challenge each other regarding the custom ownership of the land in question. The Minister of Land has the exclusive power to administer all custom land pursuant to the Land Reform Act. Nor can he be restrained by the Island Court, because he is not ‘one of the parties’ referred to in the Island Courts Act. In his administration of those lands he is free to aliens be means of leases all lands under his management.”

Two important matters arise from counsel’s submissions based on Civil Case 126 of 1995. First, whilst the Court made observations about the limits of the jurisdiction of the Island Court, in that case proceedings were taken in the Supreme Court by the lease holder to have the injunction set aside. The case is no authority for the proposition that the Minister in similar circumstances can merely disregard the order of the Island Court as if it were wholly irrelevant. It must be emphasized that when any Court within this Republic makes a restraining order, it is to be respected by all those whose dealings might impinge upon its efficacy.

In the present case, the fact that the Island Court hearing the dispute over custom ownership had made an order intended to preserve the subject matter of the dispute pending a decision was a highly relevant matter which required the attention of the Minister in deciding whether, in the exercise of power under s. 8 of the Land Reform Act, a lease was to be granted. In our opinion, if the existence of that order had been brought to the attention of the Minister the high probability is that knowledge of it would have led to a refusal to grant the lease.

Second, the relevance of the Island Court order is not that it bound the Minister in any particular way as a matter of strict law. In so far as counsel for the Appellants asserted that such an effect was given to the order, the submission misunderstands the position. As we have already said, the relevance of the order is not that it had binding legal force on the Minister, but that the Island Court had restrained people claiming direct interests in the land from dealing with it. That was a highly relevant fact to be taken into account by the Minister when considering whether to exercise power under s. 8 of the Land Reform Act.

For a party seeking rectification under s.100 of the Land Leases Act, it is not sufficient to prove that a mistake occurred in the course of a transaction which ultimately concluded in registration of the interest which it is sought to have removed from the register. In terms of s.100, the Court must be satisfied that the “registration has been obtained, made or omitted by fraud or mistake”. The section imposes a causal requirement. The mistake must lead to the impugned registration being made. The onus is on the party seeking rectification not only to establish a mistake, but also to satisfy the Court that it caused the registration to occur.

We observed, above, that it would be highly probable that if the Island Court order had been brought to the attention of the Minister, it would have caused him to withhold approval for the grant of the lease. There are other matters in this case which lend weight to that probability, and, in our opinion, justify the finding of Saksak J. “that the granting of the leases by the Minister was done through mistake”. In substance, this is a finding that the causal requirement of s.100 had been established.

First, it will be remembered that the Appellants pleaded in paragraph 15 of their defence that it was not relevant at the time when the Rural Land Development Committee first met to bring the order of the Island Court to its attention. The inevitable inference from this pleading is that the Island Court order would assume relevance, and needed to be disclosed, to the Minister when the time came for him to decide whether the lease should be granted.

Next, in the course of his evidence, Minister Kilman was asked whether that there ever was a time when he refused a lease presented to him by officers of his department. He replied “Yes. On briefing that there would be legal problems. But these were not such leases.” The implication from this answer is that if there were legal problems regarding the granting of the leases, it is likely that the Minister would refuse consent. In the circumstances of this case, we think it follows that if the Island Court order had been brought to the attention of the Minister, his concerns about the legal problems would have been enlivened.

Further, in October 1996 the First Secretary of the Ministry of Lands wrote to the chairman of the Eratap Land Committee, the plaintiff in the Island Court proceedings who had obtained the Island Court order of 22^nd April 1994, pointing out that the Ministry had been endeavouring to obtain a response from the Eratap Land Committee about the Appellants’ application for lease, and again sought feed-back from the Committee on that question. The evidence, including that of Mr. Harry Kalsarei, the chairman of the Eratap Land Committee, suggest that the Land Committee itself was relying on the order of the Island Court, and for that reason was not giving consent to the grant of leases to the Appellants. Had the court order been brought to the attention of the Minister, it is quite possible that the Minister would have asked for further enquiry to be made, as the attitude of the Eratap Land Committee to the leases was important. The evidence from Mr. Kalsarei was that as the Committee would not grant its consent and would not reply to the correspondence from the Ministry of Lands, he told the Appellants to tell the Minister to go ahead. As chairman, Mr. Kalsarei had no authority on behalf of the Eratap Land Committee to say that, nor would second hand advice transmitted through the applicants be sufficient to properly inform the Minister.

Taking these matters together, the likelihood that the mistaken belief of the Minister was the cause for the registration of the leases becomes overwhelming, and the Appellants’ submission that the necessary causual [sic] relationship was not established must be dismissed.

This conclusion is sufficient to dispose of the appeal and it is not necessary for this Court to embark on a detailed consideration of the other grounds of appeal.

For completeness, we note that when the hearing of the appeal resumed on 2^nd May 2005, Mr. Loughman sought leave to appear and make submissions on behalf of the Director of Land Records and the Minister of Lands who were nominally named as the Fourth and Fifth Respondents to the proceedings in the Supreme Court. As those parties had not become involved in the hearing of the trial, and no order was made that affected them, they were not named as parties to the appeal in this Court. The Court had not sought submissions from either of Mr. Loughman’s clients. Mr. Loughman informed the Court that his clients had been urged to appear by the lawyers representing the Appellants who had informed him that the Court was considering the proposition that the Order of the Efate Island Court legally bound the Minister not to grant a lease of the subject land pursuant to the power in s.8 of the Land Reform Act.

The Court refused the application of Mr. Loughman as the proposition about the effect of the Island Court order which he sought to oppose was not one that had been suggested, even by inference, in the reasons of the trial judge, or by this Court. As we have indicated earlier in these reasons, the relevance of the Island Court order was not that it had any legally binding effect upon the Director of Land Records or the Minister of Lands but was merely a fact which it was relevant for the Minister to take into account when considering whether to grant consent.

The relevance of that order in a particular case will depend on a consideration of all the evidence about the material placed before the Minister, and the Minister’s own knowledge of relevant facts. Whilst the conclusion was reached in this case that the decision of the Department not to bring the order to the attention of Minister Kilman constitute a mistake which justified an order for rectification under s.100 of the Land Leases Act, the relevance of the court order in the case of other lessees in relation to land comprised in titles 168 and 170 is likely to be very different. Again, we emphasize that the order of the Island Court did not have binding legal effect upon the Minister, and so long as the Minister was fully informed of all relevant facts, including the order, it would be open to a Minister to grant a lease pursuant to s.8 of the Land Reform Act.

For these reasons the appeal will be dismissed, and the Appellants must pay the Respondents’ costs at the standard rate, as agreed or determined.

DATED at Port Vila, this 3^rd day of May 2005.

BY THE COURT

Hon. Vincent Lunabek CJ.
Hon. Bruce Robertson J.
Hon. John von Doussa J.
Hon. Patrick Treston J.
Hon. Hamlison Bulu J.