Worwor v Leignkone [2006] VUCA 19; CAC 23-06 & CAC 26-06 (6 October 2006)

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

Civil Appeal Case No. 23 of 2006
Civil Appeal Case No. 26 of 2006

BETWEEN:	JOSELITO WOKON & OTHERS
	Appellants in CAC23/06
AND:	LOUIS WORWOR as Representative of the Toumourmal Family
	Appellants in CAC26/06
AND:	LAURENT LEIGNKONE
	First Respondent
AND:	THE GOVERNMENT OF THE REPUBLIC OF VANUATU
	Second Respondent
AND:	THE MINISTER OF PUBLIC UTILITIES
	Third Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Hamlison Bulu
Hon. Justice Christopher Tuohy

Counsels: Mr. Hilary Toa for the Appellants in CAC26 of 2006
Mr. George Boar for the Appellants in CAC23 of 2006
Mrs. Viran Molisa Trief for the Second and Third Respondents

Date of Hearing: 2 October 2006
Date of Decision: 6 October 2006

JUDGMENT

Introduction

These are two (2) appeals from the judgment of the Supreme Court in Vila dated 12 June 2006 where the Court found that:-

(a) the correct amount of compensation for the North Ambrym Airport at Olal was VT 8.179.694; and

(b) the amount belonged to the owners of trees, crops and gardens which were destroyed. The amount already paid out to Mr. Worwor must be paid to owners of crops destroyed.

There are two groups of appellants. First Joselito Wokon, Charles Cyriaque, Raymond Bongnaim, Sylvanu Orren and Alphonse Lasse (who we call the farmers) who appeal against that decision on the basis that:-

(a) The learned judge failed to assess the farmers’ crops and fruit trees on the basis of the agricultural policy and survey done by Mr. Pakoa.

(b) The learned judge failed to assess the farmers’ sacred yam for compensation.

(c) The learned judge failed to award exemplary damages against the Government.

(d) The learned judge failed to award costs in favour of the farmers.

The second is Louis Worwor as representative of the Tourmourmal Family (who we call the custom land owner) who appeals the decision:

(a) Was wrong in fact and in law in holding that the custom land owner is not entitled to any compensation at all as the compensation was only for those who own properties on the Olal Airport area.

(b) Was wrong in fact and in law in holding that the custom land owner should indemnify the farmers.

(c) Was wrong in fact and in law in holding that the custom land owner was not entitled to any compensation for the Olal Airport area.

Despite the farmers’ opposition to the airport project, on 14 September 1994 Government employees began clearing and bulldozing gardens, plantations and yam fields to construct the airport. The clearing work finished on or about 30 October 1994, but the airport project has never been completed. At the time of the hearing of the appeal the airport project has not proceeded and on the evidence it is not clear if the Government is intending to go ahead with building the airport.

Two issues arise in this appeal. First, is the question of compensation for root crops and fruit trees that were destroyed or damaged during the clearing of the land for the airport project. Secondly, compensation for the acquisition of the land for the Olal Airport project.

Over the years the two quite separate issues have been blurred. This has been added to by the absence of proper survey plans of the area(s) involved or required for Olal Airport.

In June 1995 the Council of Ministers agreed to make compensation payments for Olal Airport. The Acting Secretary to the Council of Ministers at that time conveyed the Government’s decision in a letter as follows:-

"DC/CM/13/70/YS/mp/95

7th June 1995

Hon. Amos BANGABITI

Minister of Transports

Vanuatu Government

PORT VILA

Dear Minister,

RE: Decision No. 70 of the Council of Minister’s meeting No.09/06/06/95

Olal Airport Compensation

The Council of Ministers’ meeting No. 09 of June 6th 1995, approved:-

(a) The amount of 8.179.694 million vatu towards the compensation claim of the land owners of Olal Airport.
(b) The Ministry is requested to revise the price of some items to correspond with Government basic tarification.

Yours faithfully,

(Sign)

Yvette SAM

Private Secretary and Acting Secretary General to the Council of Ministers

CC : Hon. Prime Minister

:Hon. Minister of Finance

: Director of Finance

: Attorney General"

The real crux of this case is what is meant by the phrase "... towards the compensation claim of the land owners of Olal Airport" in paragraph (a) of that letter.

Louis Worwor claimed compensation for the taking of his custom land as an airport site. On the evidence before this Court his claim did not relate in any way to the crops destroyed on the land. His claim was put to the Government sometime in 1994. The Government told him their assessment was a sum of VT8.179.694 and Louis Worwor accepted this figure. There was a serious misunderstanding on the part of both the Government and Mr. Worwor that the VT8.1 million was to compensate for the loss of his customary land. VT3 Million was paid to him soon thereafter in two equal instalment payments of VT1.5 million each.

Other persons appealed the decision of the Island Court finding that Louis Worwor was the custom owner of land on which Olal Airport was to be built. The Supreme Court confirmed the finding but as a result of the continuing dispute the balance amounting to VT5.179.694 was paid into Court and has not been distributed to anyone.

We have had the opportunity to peruse the evidence and hear counsel fully on whether the orders made in the Supreme Court are right. We are satisfied that the compensation referred to in the letter of 7 June 1995 which is in conformity with the schedule that was submitted to the Council of Ministers was for fruit trees and crops. The fact that it was treated as between the Government and Louis Worwor as compensation for the custom land was an error. The only logical conclusion is that the Council of Ministers based its decision on the assessment of crop loss suffered by the farmers who were using the land. It was quite unrelated to the value of the land itself.

On appeal Mr. George Boar attempted to have the amount of compensation increased both by adopting a different measure of calculation and by including other farmers who were not parties in the Supreme Court action. We are persuaded that the farmers mentioned in the schedule of the June 1995 letter are entitled to the compensation set out but others who did not claim are statute-barred. We concur on this point with his Lordship’s findings in the Supreme Court. The method of assessment cannot at this late stage be challenged nor can the pool of claimants be enlarged.

The payment to Louis Worwor, was made under a mistake on the part of the Government. The schedule that went to the Council of Ministers in June 1995 related solely to the crops and trees that were damaged or destroyed by the clearing works of the land area required for the airport project. Like Treston J we find that compensation in the amount of VT8,179,694 was solely for crops and not for the land.

As the Supreme Court found, the VT5,179,694 paid into Court must be distributed to the farmers pursuant to the list that went to and was endorsed by the Council of Ministers. The Government must also make available forthwith a further VT3 million to be also distributed to the farmers in accordance with the schedule.

The State must accept its responsibility in this matter. The State authorized its agents to start clearing the land without complying with the procedures prescribed by Parliament in the Land Acquisition Act No.5 of 1992. It then was muddled about the nature of the compensation which was to be paid.

If the Government wishes to proceed with the construction of the airport, it must now properly survey the land and pay proper compensation to the land owners for the land itself in line with the provisions of the Land Acquisition Act. Any entitlement which Mr. Louis Worwor has under that process will be subject to a set-off for the VT3 million he has already received.

The appeal in CAC 23 of 2006 is dismissed but the Government of the Republic of Vanuatu is ordered to pay VT3.000.000 to the Appellants in addition to the VT5.179.694 which is in Court to be distributed pro rata in accordance with the schedule.

The appeal in CAC 26 of 2006 is dismissed. There has been no compensation paid for land to be taken for the Olal Airport and any issues relating to that have yet to be litigated. Louis Worwor as representative of the Toumourmal Family will have to allow a set-off of the VT3.000.000 which he has already received in respect of any compensation for land to which he becomes entitled.

The farmers and the custom land owners in these appeals are each entitled to costs of VT50.000 against the Government of the Republic of Vanuatu.

DATED at Port Vila, this 6th day of October, 2006.

Hon. Vincent Lunabek, CJ Hon. Bruce Robertson, J.

Hon. John W. von Doussa J Hon. Daniel Fatiaki, J

Hon. Hamlison Bulu J Hon. Christopher Tuohy, J