Ifira Trustees Ltd v Family Kalsakau [2006] VUCA 23; CAC 05-06 (6 October 2006)

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

Civil Appeal Case No. 05 of 2006

BETWEEN:	IFIRA TRUSTEES LIMITED
	Appellant
AND:	FAMILY KALSAKAU
	First Respondent
AND:	DIRECTOR OF LAND RECORDS
	Second Respondent
AND:	THE MINISTER OF LANDS
	Third Respondent
AND:	THE DEPARTMENT OF LANDS
	Fourth Respondent

Coram: Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak
Hon. Justice Hamlison Bulu
Hon. Justice Christopher Tuohy

Counsel: Mr. James Tari for the Appellant
Mr. John Malcolm for the First Respondent
Mr. Tom Joe for the Second, Third and Fourth Respondents

Date of Hearing: 4 October 2006
Date of Decision: 6 October 2006

JUDGMENT

This is an appeal against the orders of the Supreme Court issued by the learned Chief Justice in consolidated judicial review cases No. 116 of 2005 and No. 154 of 2005 on 2nd March 2006.

The applicants in Civil Case No. 116 of 2005 were Family Kalsakau III and 7 others, (Kalsakau Family) with ITL as first respondent, the Director of Land Records second respondent, the Minister of Lands third respondent and the Department of Lands fourth respondent. The parties to Civil Case No. 154 of 2005 were the appellants (Ifira Trustees Ltd – ITL) as applicants, the Attorney General as first respondent and the Director of Lands as second respondent.

Two separate applications seeking judicial review were filed. The first was dated 19th August 2005 filed by Kalpokor Kalsakau on behalf of the Family Kalsakau, seeking the following:-

1. A declaration that the decision of the Department of Land and/or through it, to grant the Certificate of Registered Negotiator to "ITL" of 28th June 2005 be called up and quashed.
   
2. A declaration that the decision of the Minister of Lands and/or through him, to grant the lease title 12/0911/332 to ITL on 29th June 2005 be called up and quashed.
   
3. A declaration that the Certificate of Registered Negotiator issued to ITL on 28 June 2005 be set aside.
   
4. A declaration that the lease title 12/0911/332 granted to ITL on 29 June 2005 be set aside.
   
5. A mandatory order requiring the Minister of Lands to approve forthwith the lease title 12/0911/332 in favour of Kalsakau Family.
   
6. An order that ITL, the Minister of Lands and the Department of Land pay costs of this application to the Kalsakau Family.
   
7. Such further or other orders as the Court deems fit"
   

The second in time dated 16th September 2005 filed by ITL seeking:-

1. That the Director of Lands register lease title no. 12/0911/332 in the name of ITL.
   
2. The costs of and incidental to the application.
   

The sequence of events leading up to the filing of the two applications for judicial review were:-

∗ Sometime before February 2005 the Kalsakau Family entered into negotiations to lease a portion of land at Malapoa Point which they assert is their customary land which was alienated prior to 1980. The negotiation was for an amount of Five Hundred Million vatu (VT500,000,000).

∗ On 15th March 2005, the Kalsakau Family applied for a Negotiator’s Certificate and on the same date received supportive recommendations from the following government institutions-

• (a) the Shefa Provincial Council,
  
• (b) the Environment Unit,
  
• (c) the Survey Department,
  
• (d) the Lands Tribunal, and
  
• (e) the Lands Department.
  

∗ On 21st March 2005 the Negotiator’s Certificate was issued.

∗ On 15th April 2005 lease No. 12/0911/332 was signed by the custom-owners.

∗ On 26 May 2006 the State Law Office recommended lease No. 12/0911/332 for Ministerial approval.

∗ On 28th June 2005 ITL applied for and obtained a Negotiator Certificate for the same land. The Negotiator Certificate was signed by the Acting Minister of Lands at the time, the Hon. Barak Sope.

∗ On the next day 29th June 2005 the Hon. Barak Sope signed a lease in favour of ITL. There was no premium but only an annual rental of VT1.96 million.

On 2nd March 2006 the learned Chief Justice made orders the effect of which was:-

(1) That the decision of the Department of Lands, to grant the Certificate of Negotiator to ITL of 28 June 2005 was called up and quashed.

(2) That the Decision of the Minister of Lands to grant the leasehold title 12/0911/333 to ITL on 29th June 2005 was called up and quashed.

(3) That the Certificate of Registered Negotiator issued to ITL on 28th June 2005 is hereby set aside.

(4) That the lease title 12/0911/333 granted to ITL on 29th June 2005 be and is hereby set aside.

(5) That mandatory order requiring the Minister of Lands to approve forthwith the lease title 12/0911/332 in favour of the Kalsakau Family was refused as it was premature.

(6) The Declaration/Order sought by ITL in CC154/2005 requiring the Director of Lands Records to register Lease Title 12/0911/332 in the name ITL was refused.

(7) That the ITL, the Minister of Lands and the Department of Lands pay the costs of Kalsakau Family in CC116 of 2005.

The reserved reasons for these orders were published and issued on 3rd October 2006.

ITL’s grounds of appeal were that the learned Chief Justice had erred in fact and in law –

(a) in deciding that Land Case No. 5 of 1996 had been struck off the Efate Island Court Registry when in fact the case was still pending a hearing and determination by that Court.

(b) When he did not consider the only evidence before the Court that the land, the subject-matter of the two cases was still disputed and was awaiting a hearing and determination by the Island Court.

(c) In deciding that the Minister had wrongfully and unlawfully signed leasehold title No. 12/0911/333 when he had acted pursuant to his powers under section 8 (2) of the Land Reform Act [CAP. 123].

(d) In deciding that leasehold title No. 12/0911/332 could be enforced when the title has been cancelled by the Director of Land Survey.

ITL posed five (5) issues for consideration –

(1) Whether a survey plan which had already been cancelled by the Director of Land Surveys could be a valid plan upon which a grant of lease can be made?

(2) Whether the Kalsakau Family in Judicial Review Claim No. 116 of 2005 had the power to decide whether a lease can be rectified.

(3) Whether the grant of a Negotiator Certificate first in time to the Family Kalsakau conferred on it any rights over the leased land?

(4) Whether the ownership of the land "is disputed" and if so, whether the Minister could act under section 8 of the Land Reform Act on behalf of the disputing custom-owners to issue a lease?

(5) Whether the Director of Land Records has the power not to register a lease that has already been signed by the Minister?

The grounds of appeal and the issues raised by the appellant were formulated prior to the publication of the reserved reasons so Mr. Tari had to revamp his argument immediately prior to the hearing. Many of the issues became redundant and a new approach was required.

This Court having had the benefit of the reserved reasons of the Court below saw that the learned Chief Justice did not decide there had been a strike out in respect of Land Case No. 5 of 1996. At page 8 of his Lordship’s judgment the Court held:

"On 11 February 2005, the Clerk of Efate Island Court, Jona Mesao issued a "Memo" to family Tulangi to appear before the Efate Island Court on 16 February 2005 for conference in relation to Land Case No.5 of 1996. After the conference hearing, the presiding Magistrate Jerry Boe transferred the Land Case No. 5 of 1996 to the Lands Tribunal by Order dated 11 May 2005..."

Before us during his oral submissions, Mr. Tari agreed with the suggestion made by the Court that there is a case still pending for determination in the Lands Tribunal. Mr. Malcolm disagreed and submitted that the case had been dismissed in 1998. However, on reflecting on the Chief Justice’s findings Mr. Malcolm accepted that there was evidence that there remains a dispute about the land which is unresolved.

There is no substance in grounds (a) and (b) raised by ITL.

Grounds (c) raised the exercise of a Minister’s powers under section 8 of the Land Reform Act [CAP.123].

This section states:

"MINISTER TO HAVE GENERAL MANAGEMENT AND CONTROL OF CERTAIN LAND

8 (1) The Minister shall have general management and control over all land –

(a) occupied by alienators where either there is no approved agreement in accordance with sections 6 and 7 or the ownership is disputed; or

(b) no occupied by an alienator but where ownership is disputed; or

(c) not occupied by an alienator, and which in the opinion of the Minister is inadequately maintained.

(2) Where the Minister manages and controls land in accordance with subsection (1) he shall have power to -

(a) consent to a substitution of one alienator for another;

(b) conduct transactions in respect of the land including the granting of leases in the interest of and on behalf of the custom-owners;

(c) take all necessary measures to consent and protect the land on behalf of the custom owners."

Mr. Tari relied heavily on section 8 (2) to argue and submit that the Minister had acted lawfully in granting lease title 12/0911/333 to ITL. At the heart of his case is the submission that once there is a dispute the Minister has an unlimited or absolute power to do anything at all with the land in accordance with his unfettered discretion under section 8.

Mr. Malcolm accepted that section 8 of the Act gives power to the Minister to manage and control lands over which there are ownership disputes. However he submitted the central issue was whether the Director of Lands Records was required to register a lease which has been signed by the Minister of Lands consequential to a negotiator’s certificate without having proper or any regard to the underlying facts and circumstances of the case.

Mr. Malcolm placed particular reliance on Peter Bouchard v Director of Land Records and Minister of Lands [2003] VUCA 4: Civil Appeal Case 05 of 2003 (9th May, 2003). The Court in that case commended employees of the Department of Lands for refusing to register the appellant’s lease where it was issued in highly questionable circumstances. These included the speed at which the transaction occurred, the by-passing of normal procedures and a grossly inadequate premium. In the Bouchard case the premium paid was VT7 million for 90 hectares of land. In similar circumstances in Traverso v Chief Kas Kalou [2003] VUCA 18: Civil Appeal Case NOo.26 of 2003 (7th November, 2003) there was no premium for 12 hectares. Mr. Malcolm stressed in the present case of the ITL lease, there was no premium for 60 hectares of land.

The learned Chief Justice reached conclusions based on the facts as he found them at pages 12 and 13 of his reasoned judgment. He then applied section 100 of the Land Leases Act [CAP. 163] and the principles of law as laid down by this Court in Bouchard, Traverso and James Toura. His Lordship held that the circumstances were such that the Department of Lands was not required to register a lease which had been signed by the Minister consequential to a negotiator’s certificate issued in questionable circumstances.

Section 100 does not have direct application in this case as ITL’s lease has not been registered, but the principles and approach are unquestionably correct and we are not persuaded by Mr. Tari that his Lordship erred in reaching those findings.

Mr. Tari faced two other difficulties which are central in this case. The then Acting Minister of Lands was the Hon. Barak Sope signed and issued ITL’s Negotiator Certificate on 28th June 2005 and then, on the very next day, 29th June 2006, issued the lease in favour of ITL.

From the evidence it is clear, Mr. Barak Sope was himself a signatory to a Declaration upon which ITL bases its case. His father Basea Tapangkai Sope was one of the signatories to a letter dated 18th May 2005 written to the Minister of Lands about the subject matter of the litigation. Cousins of his are trustees of ITL.

It is a fundamental precept that "no man can be a judge of and in his own case". Mr. Barak Sope issued a Negotiator Certificate and a lease to ITL when he had a disqualifying interest and whilst acting as the Minister of Lands.

As Mr. Tari accepted in the course of the appeal hearing it would be unthinkable, unconscionable and an affront to justice and common sense if there was a Court case in which a judge was one of the parties and the judge sat on the bench and decided that case.

There are times when Parliament has vested in the executive arm of government, powers and responsibilities which are as important and as far reaching in their consequences as a decision of a Court.

Whenever that occurs the member of the executive branch of government who exercises the ministerial power must be independent, objective and disinterested in the outcome of the proceedings. The law requires that people who exercise statutory powers do so from a position in which they have no disqualifying interest and about which a reasonably informed person would not believe that they could be biased.

The uncontroverted evidence before the Court can lead only to the conclusion that Mr. Sope could not lawfully, properly or validly exercise the powers of a Minister of Lands in this dispute.

That point which was not directly argued before the Chief Justice is of itself sufficient to determine this case.

However, it is to be noted that there is a second aspect to this matter which was argued and determined by the Chief Justice and with which we entirely concur.

When Parliament grants a power to make decisions, the decision maker must undertake the task conscientiously and independently weighing all matters which are relevant and ignoring those which are irrelevant and the decision maker must faithfully apply fair and proper processes and procedures.

Section 8, as an example, is not a licence for a Minister to make any decision that he likes about the care and control of disputed land pending the resolution of that dispute. A Minister exercising this power can only reach a proper and lawful conclusion after he has weighed and assessed all matters which are relevant.

In this case the Acting Minister within 24 hours of granting a negotiator’s certificate reached a decision which on the basis of the evidence was taken without giving any consideration to the alternative claim advanced by the Kalsakau Family, or the financial differential between the two propositions.

As the Acting Minister of Lands he would have had the power and authority to make a decision under section 8 (if he was not in a position of conflict) but the power could only be exercised in a way which in law was rational. There was no evidence that the necessary scrutiny and assessment had been undertaken. What occurred was an unlawful exercise of the power which was available.

The next issue which emerged in the Court of Appeal was uncontradicted evidence from the Director General of the Ministry of Lands, Mr. Russell Nari that the Director of Lands Mr. Michael Mangawai had a direct disqualifying interest in this matter.

He is a trustee of the ITL and thus a party in the case. Mr. Mangawai facilitated the issuing and signing of the Negotiator Certificate and the lease in favour of ITL. There was a suggestion that Mr. Mangawai had failed to declare his personal interest to the normal Minister of Lands when he was dealing with the case. There is no finding on this aspect but again, if established, it would mean there were flaws in the processing of the lease application.

Mr. Malcolm advised this Court that since the Orders appealed against were issued, the Kalsakau Family have become registered in respect to title 12/0911/332. ITL have placed a caution dated 15th March 2006 against that lease.

The current appeal does not directly raise lease title 12/0911/332. If there are challenges to either the lease or the caution, the parties will have to pursue alternative actions. That is a matter entirely in their discretion.

As far as this appeal is concerned, we are persuaded that the learned Chief Justice was correct in his findings on the way the matter was presented. There is no basis to interfere with his conclusion or the Orders made pursuant to them.

Further the additional factors raised and discussed before us confirm that no other conclusion is sustainable.

The ITL appeal is dismissed. Mr. Malcolm accepted that in light of what has transpired since the Supreme Court hearing in March, he did not require any other intervention or direction from this Court.

The Kalsakau Family is entitled to its costs in respect of the appeal. We set a total sum of VT150,000 which is to be met by payments of VT50,000 from each of ITL, the Minister of Lands and the Department of Lands.

Dated at PORT VILA on 06 October 2006

BY THE COURT

Hon. J. Bruce Robertson J.	Hon. John. W. Von Doussa J.
Hon. Daniel V. Fatiaki J.	Hon. Hamlison Bulu J.
Hon. Oliver Saksak J.	Hon. Christopher N. Tuohy J.