Carlot v Santhy [2009] VUCA 5; Civil Appeal Case 25 of 2008 (30 April 2009)

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

CIVIL APPEAL CASE No. 25 OF 2008

BETWEEN:

CHARLES CARLOT
Appellant

AND:

ALICK SANTHY AND WILLIE SANTHY
Respondents

Coram: Justice John von Doussa
Justice Oliver Saksak
Justice Ronald Young
Justice Nevin Dawson

Counsel: Mr. George Boar for the Appellant
Mr. Jack Kilu for the Respondent

Date of hearing: 27th April, 2009
Date of Judgment: 30th April, 2009

JUDGMENT

Introduction

1. This is an appeal against the whole judgment and orders of the learned Chief Justice dated 21st August 2008 whereby the Court awarded compensation in the aggregate sum of VT2, 532,845 and costs to the respondents. There is also an appeal from the Court’s strike out of the appellant’s counter-claim.
   

Grounds of Appeal

2.

1. The appellant had no relationship in law with the respondents and judgment should not have been awarded against him.
   
2. The Claims for compensation for fruit trees and crops are statute-barred under the Limitations Act.
   

100. The Judge’s calculation of the value of the crops and fruit trees was wrong.
     

4. The Judge was wrong in striking out the appellant’s counter-claim.
   

History and Chronology of Events

3. The history of this proceeding can be traced back to 2004 when the respondents as claimants filed their claims against the appellant in his personal capacity as well as the legal representative of the appellant’s deceased father Andes Carlot. The following facts are alleged:-

i) Sometime in 1984 the appellant’s deceased father had approached Alick Santhy and asked him to go and live on his land in order to protect it from being occupied by unauthorised persons.

ii) The deceased father of the appellant had promised to pay Alick Santhy the sum of VT15, 000 per month but he never did.

3. Alick Santhy lived and cultivated the land with the permission or request of the deceased father by planting fruit trees, commercial trees and food crops.
   
4. Alick Santhy with the consent of the appellant’s deceased father built four residential buildings on the deceased’s land at his own cost and expense.
   
5. In or about 2000 the sum of VT 1,016,420 was paid by the Public Works Department to the appellant as compensation for the removal of the houses to make way for the new ring road to the Rentabao Bridge. The appellant paid VT 100,000 to the respondents and retained the balance of VT916, 420.
   
6. In or about 2001 the appellant required the respondents to leave the land which they did.
   

4. On 8th March, 2006 the respondents filed an amended claim seeking orders for the following relief that:-

1. The appellant pay the respondents of VT 1,016,420 which was paid by the Government of Vanuatu to the defendant for the removal and relocation of their houses.
   
2. The appellant pay the sum of VT1, 015,000 to the respondents being for compensation for the removal and relocation of their houses when they vacated the land.
   
3. The appellant pay the sum of VT 2,432,850 being compensation for food crops, fruit trees and commercial trees abandoned by the respondents on vacating the land.
   
4. The appellant pay interest at the rate of 15% per annum from the date of the Orders to the date of final settlement.
   

5. The appellant filed a defence to the original claims and counter claim dated 11th May, 2005 denying liability on the basis that he was not a party to the verbal agreement of 1984 and that he had no knowledge such agreement existed. He denied that the respondents had any cause of action against him and asserted that their claims were time-barred. As regards his counter-claim the appellant alleged he had a lease over the property in leasehold title No. 12/I031/024 and sought orders for eviction, damages, mesne profit at VT100, 000, costs and interests against the respondents.

6. On 20th April, 2005 the respondents filed an amended claim to which the appellant responded on 24th May, 2005 with a counter-claim increasing his claim for mesne profits from VT 100,000 to VT 200,000 per year from 1999 to 2005 totalling VT 1,000,000.

7. It appears the appellant did not file his defence and counter-claim until 21st April, 2006 as is apparent from the respondents response dated 29th May, 2006. Further the respondents filed their defence to the appellant’s counter-claims also on 29th May, 2006.

8. The matter was called for several conferences in April and May 2007 whereby directions were issued directing parties to file their sworn statements by 11th and 25th May, 2007. However, the case file was burned with the Court House on 7th June 2007. It was reconstructed and the Court directed the parties on 9th June 2008 to file their sworn statements by 25th June 2008. The case was then listed for trial for 3 days commencing on 19th August 2008 at 9 O’clock a.m.
   
9. On 19th August, 2008 neither the appellant nor his counsel were present at the commencement of the trial and the trial was adjourned for 30 minutes for the Court clerk to check with the registry whether or not there was any communication by the appellant about their non-attendance at Court. There was no such communication and upon Mr. Kilu informing the Court he was ready to proceed to trial, the Court gave him leave to begin. There were 5 witnesses who relied on their respective sworn statements of 13th May 2005, 8th May 2007 and 8th May 2008.
   
10. The Court then struck out the appellant’s counter-claim for want of prosecution and gave judgment in favour of the respondents for the sum of VT 2,432,850, being VT 916,420 for the Government compensation; VT 400,000 for the respondents relocation costs when they vacated the land and VT 1,216,425 for half the value of the crops, fruits and timber left on the land.
    

Discussion

11. Although the appellant did not appear at trial the primary Judge still had to be satisfied the respondents had a claim in law against the appellant and that damages were payable. In their amended claim the respondents identify the value of the crops they left on the land when they vacated and the cost of relocating the buildings constructed by them. However the amended claim does not identify any basis in law for a claim for such compensation.

12. The original arrangement was for the respondents’ to reside on Mr. Carlot seniors’ land for which he would pay them VT 15,000 per month. This arrangement seems to have changed to allow the respondents to plant crops and trees on the land and to build houses. However the respondents made no claim for any long term right to live on the land nor do they claim there was any agreement they would be compensated for the crops and trees and houses built when they left the land.
    
13. In 1999 the appellant obtained a lease over the land. We note s.17(g) of the Land Leases Act [CAP. 163] provides:-
    

"Unless the contrary is expressed in the register, the proprietor of a registered lease shall hold the lease subject to such of the following overriding liabilities, rights and interests as may, for the time being, subsist and affect the same, without their being voted on the register____

(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.

14. Thus the appellant took the lease of the land subject to the rights of the respondents who were at that time in occupation of the land. However the respondents did not assert in either their claim or in their evidence that they had been given any right to occupy the land other than as subtenants at will, or that they had a right to be compensated for the crops and trees they left behind or that they were entitled to be reimbursed for their removal costs. The respondents could not identify any statutory rights which would have given them compensatory entitlements.

15. The respondent’s evidence established that they were no more than sub-tenants occupying the land at the will of the appellant and, subject to reasonable notice, obliged to vacate the land

16. Given those conclusions we can see no basis in law for the respondents claim for compensation for the value of the plants and for relocation costs. We consider their claim for compensation for these items must fail.

17. However we take a different view as to the VT 1,016,420 paid by the Vanuatu Government as compensation for the removal of the houses. We agree with the primary Judge that all the compensation paid by the Government should have been paid by the appellant to the respondents.

18. The Government required that five houses, built by the respondents on the land, be removed to facilitate the construction of the ring road around Efate. The compensation paid was for the value of the houses, the cost of clearing new sites, and the labour cost of constructing new houses on the cleared sites.

19. These houses had been built by the respondents using materials purchased by them. The appellant had no financial or other interest in these houses. He suffered no loss when the houses were removed and so no compensation could have been due to him. This was compensation for those who had built the houses to ensure they suffered no loss from the state’s need to remove the houses for the ring road. When the Government paid the compensation to Mr. Carlot he held the money as agent or on trust for the Santhys. We therefore agree with the primary judge that the respondents were entitled to all the compensation paid by the Government.

20. In summary therefore we allow the appeal in part; set aside the orders for compensation payable by the appellant to the respondent of VT 400,000 and VT 1,216,425 and confirm the order for compensation of VT 916,420.

21. Finally, it was argued that the Court below was in error when it struck out the appellant’s counter-claim on 09th August 2008. Counsel for the appellant said that under Rule 12.3 the proper course was for the Court to have adjourned the trial of the counterclaim.

22. The decision by a judge to grant an adjournment is discretionary. It can be made on the Court’s own motion or by application from a party. In this case the appellant and his counsel were not present in Court on 19th August 2008 but the respondents (as Claimants) were. The claimants were ready to proceed with the trial hearing.

23. The respondents were for the purpose of their counterclaim claimants. Rule 12.9(2), where the claimant fails to attend when the trial commences, allows the Judge to adjourn the case or give judgment for the defendant.

24. In this case the Judge decided to give judgment rather than adjourn the counter-claim. This was well within the Judge’s discretion and in the circumstances hardly surprising. The appellant had not filed any witness statements before the trial in support of his counterclaim. No excuse was offered for the failure to turn up for the trial on 9 August 2008.

26. For the reasons given there is no merit in the appeal against the dismissal of the counterclaim. It is dismissed.

Summary

25. The appeal is allowed in part. The award of damages in favour of the respondents is reduced to VT 916,420. The appeal against the striking out of the counterclaim is dismissed. As both parties have in part succeeded there will be no order as to costs.

DATED at Port-Vila this 30th day of April 2009

BY THE COURT

John von DOUSSA J
Oliver SAKSAK J
Nevin Dawson J
Ronald YOUNG J