Kalsakau v Dinh [2005] VUCA 7; Civil Appeal Case 06 of 2004 (3 May 2005)

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

CIVIL APPEAL CASE No. 06 of 2004

BETWEEN:

Mr & Mrs HENDON KASLAKAU
Appellants

AND:

GILBERT DINH
Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Oliver Saksak

Counsel: Mr. J W Timakata for the Appellant
Mr. Felix Laumae for the Respondent

Date of hearing: 29 April & 2 May 2005
Date of decision: 3 May 2005

JUDGMENT

This matter was listed for hearing on Friday 29 April in the afternoon. On 26 April Mr. George Boar who was counsel who had filed the appeal and prepared the appeal book advised that he had ceased to act. Mr Timakata was instructed in the matter late on Thursday 28 April. Inevitably we faced an adjournment application.

It is always difficult when new counsel became involved in a case at a late stage but equally we were of the clear view that this matter had to be dealt with at this session of the Court of Appeal because of the time which has already elapsed since the Judgment under appeal was entered. There is an Order for suspension of the Order pending the appeal and the rights of the Respondent must be considered.

The substantive matter before us was an appeal against the decision of Justice Treston delivered on 18 May 2004 following an application for Summary Judgment which he heard on 7 May 2004.

In the Judgment there was a typing error. The relevant land was referred to as 11/0B24/013 should have read 11/0D24/013. The necessary correction was dealt within a Memorandum of 26 July 2004 and is of no consequence thereafter.

The Appellants operate a handicraft shop on an area in the centre of Port-Vila near to the wharf area which serves both Ifira and Irririki Islands.

The Respondent is the registered lessee of the land. He acquired the property on 21 December 1998 for 62,000,000 Vatu when this site and surrounding land was put out to tender by Westpac Banking Corporation who held a mortgage from the then owner Seafront Development Ltd, a subsidiary company of Ifira Trustees Ltd which company is in turn owned by the people of Ifira Island.

Mr. Dinh commenced proceedings in the Magistrate’s Court for compensation, damages and possession. Summary judgment was entered in his favour against the present Appellants on 7 November 2003 in Magistrate Court Civil Case No. 137 of 2003. It included an Order that the Appellants vacate the property by 21 November 2003.

Subsequently the Magistrate’s Court was persuaded that there was a dispute over the validity of the title which meant a Magistrate’s Court could not have jurisdiction. It set aside the Summary Judgment that it had entered and the Enforcement Warrant it had issued and transferred the case for determination in the Supreme Court.

At the hearing in the Supreme Court the present Respondent Mr Dinh argued that the Appellants have no real prospect of defending the claim because-

(a) title was guaranteed pursuant to law particularly under the Land Reform (Declaration of Public Land) Order No. 26 of 1981;

(b) the property was formerly alienated land prior to Independence;

(c) after Independence the property became public land by virtue of the Order made under section 12 of the Land Reform Act [CAP. 123].

Mr Dinh noted particularly that he was not the first proprietor of the property but he was a transferee who acquired the title in good faith for valuable consideration without knowing of any omission fraud or mistake in consequence of which rectification was sought.

The Appellants in the Supreme Court contended that they were the custom owners of the land. They said they had occupied the land since 1993 and had developed it at substantial expense. They contended not only that they were entitled to be in occupation but if they were not they were entitled to substantial compensation for the sums which they have expended while they have been there.

Justice Treston noted the provisions of Rule 9.6 of the Civil Procedure Rules No. 49 of 2002 relating to Summary Judgment and the application for those principles as enunciated by this Court in Bokissa Investments Limited v. R.A.C.E. Services Pty Ltd (in liquidation), [2003] VUCA 22; CAC No. 21 of 2003.

He made reference was to the provisions of section 100 of the Land Leases Act [CAP. 163] dealing with rectification which enables a Court to cancel or amend any registration where it is satisfied that the registration had been obtained, made or omitted by fraud or mistake. That power is restricted to situations where the proprietor who was in possession had knowledge of the omission, fraud or mistake or substantially contributed to or by her act, neglect or default.

Reference was made to section 7(1) of the Limitation Act No. 4 of 1991 which places a 20 year limitation on an action to recover a principal sum of money secured by mortgage or other charge on property or to recover proceeds of transfer of any interest in land.

The Judge in the Supreme Court found that the Appellants had no real prospect of defending the claim. He was satisfied on the evidence that Mr Dinh has acquired good title to the land and there was no suggestion that he had any knowledge of fraud or mistake for which rectification could be granted. (We note that in fact no allegation of that sort has been made by the Appellants).

The Judge noted that any right of action which the Appellants might have would lie against the Government but such claim would now be statute barred by the Limitation Act provision referred to. The Order which the Appellants contend is unjust was dated 26 January 1981 and no claim was made until 2004.

Similarly any claim they may have for compensation for improvements which the Appellants had effected could not be against the present Respondent.

Finally he noted that if the Appellants (who come from Ifira) had not received the share of any compensation paid at the time that the land was declared public land to which they were entitled, their action would lie against those who received the money but not against the present Respondent.

The Supreme Court concluded that was not sufficient evidence to deal with the Respondent’s claim for loss, damages or interest and these were adjourned for a quantum hearing.

Justice Treston entered Judgment for the Appellants for loss of earning, damages and interest (with quantum to be determined subsequently) and made an Order for immediate eviction of the Defendants from the property.

The Appellants counterclaim was also dismissed.

The first ground advanced on the appeal as filed was that there was an error of law and fact by ordering eviction of the Appellants when the lease title belongs to Livae Tarosa and not to Mr Dinh.

This ground of appeal relates to the typing error referred to above. It is of no substance and is not considered further.

The second ground was an error of law and fact by finding that there were not substantial questions of facts or difficult questions of law which required that the matter should go to trial.

Although this issue is a matter of great concern to the Appellants there are no difficult questions which have been identified of either law or fact.

It was suggested that the Land Reform (Declaration of Public Land) Order No. 26 of 1981 did not include the premises of the Appellants. That is simply inconsistent with the available evidence.

Secondly the fact that the Appellants’ improvements were done after that Order is relevant only to whether anymore else might be responsible to provide compensation. It is not a matter for the current Respondent.

Thirdly the suggestion that Mr Gilbert Dinh was a businessman and politician who had made a visit to Ifira with the Prime Minister does not in any way affect the legal issues to be determined in the Court system.

And finally the suggestion that the Appellants have never been part of the Ifira Trust Limited or its subsidiary company and had not consented to or had no knowledge of any transactions, may be relevant in some other context, but has nothing to do with the rights and responsibilities of Mr Gilbert Dinh.

We were totally persuaded on the written material that the Orders made were the only options available to the Court on the basis of the evidence which were presented to it. There was no basis for any appeal.

When the matter came on for hearing there were two variations on the grounds or appeal advanced:

1. That the Supreme Court erred in fact and law in finding that Mr & Mrs Kalsakau had no real prospect of defending the plaintiff’s claim or any part of it and therefore it was wrong to enter Summary Judgment pursuant to Rule 9.6 of Civil Procedure Rules.
   
2. That the Supreme Court had erred on not exercising its discretion under the Rules and refusing that Judgment when there was clear evidence of unsatisfactory pleadings and the potential for injustice.
   

In the course of the hearing we invited Mr Timakata to identify those matters of fact upon which there was any room for debate. Attached to the Order No. 26 of 1981 was a clear and unambiguous survey plan accompanied by a detailed description in Annex 2, which demonstrated beyond any doubt the land in question was within the Order. There simply could not be a factual challenge to that reality.

As far as question of law was concerned it was argued that the Court had failed to have regard to the provisions of section 17(g) and section 100 of the Land Leases Act [CAP. 163].

We immediately acknowledge that s.17(g) provides:-

“Unless the contrary is expressed in the register, the proprietor of a registered lease shall hold such lease subject to such of the following overriding liabilities, rights and interest as may, for the time being, subsist and effect the same without their being noted on the register-

(a) rights...

(b) ...

(c) ...

(d) ...

(g) the rights of a person in actual occupation of land save where enquiry is made of such person and the rights are not disclosed; and

(h) ...”

The argument on this point was based on the fact that Mr & Mrs Kalsakau were in occupation at the time that the interest of Mr Gilbert Dinh was registered. There is no argument about that. But s.17(g) talks about a person with a right of occupation. At no stage have Mr & Mrs Kalsakau been able to demonstrate any lawful right for their occupation.

Similarly with regard to s.100(1) the Court may order rectification where it is satisfied that registration has been obtained made or omitted by fraud or mistake. There is no evidence which suggests that the registration of the interest of Mr Dinh in this lease was obtained by fraud or mistake. Section 100 does not arise. The Respondent has an indefeasible title under sections 14 and 15.

Mr & Mrs Kalsakau continue to root their claim on allegation that they are custom owners. That assertion cannot survive the Order made in 1981 which we have described above.

The second new approach was the issue of unfairness or injustice because of unsatisfactory pleadings. We find no validity in this assertion. The Appellants have always been represented. They knew from the Magistrate’s decision where the facts lead.

Although they had new legal representation in the Supreme Court they asserted the same position that they had used in the Magistrate’s Court.

It is unfair to criticize the pleadings. The problem is that Mr & Mrs Kalsakau want to raise issues which have nothing whatsoever to do with Mr Dinh. The pleadings in that regard are misconceived because they are seeking to obtain relief in law against someone who is not responsible for what they are complaining about.

Three set of lawyers have now done their level best to advance the position of Mr & Mrs Kalsakau. The Appellants cannot succeed on the facts or on the law.

The Judgment entered in the Supreme Court was inevitable. There is no basis for an appeal against the Orders made. This matter has gone on for far too long. The grant of a stay was an extraordinary act of mercy nearly a year ago.

The appeal is dismissed. Mr & Mrs Kalsakau are ordered to vacate the premises not later than 31 May 2005. If they fail leave at that date the consequences will entirely be on their own heads. The Respondent is at liberty to obtain a warrant for eviction without the need for a further conference or hearing. They will also be in contempt of an unequivocal Court Order.

They will be a normal order for costs in favour of the Respondent. A hearing in respect of the outstanding quantum issued needs to be scheduled.

DATED at PORT-VILA this 3^rd day of May 2005

BY THE COURT

Vincent LUNABEK CJ
J. BRUCE ROBERTSON J
JOHN von DOUSSA J
Oliver A. SAKSAK J