Societe Civile Familiale Ohlen Ltd v Sope [1998] VUSC 57; Civil Case 113 of 1996 (21 September 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 113 of 1996

SOCIETE CIVILE FAMILIALE OHLEN
Plaintiff

AND:

RORO SOPE
First Deft

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AND:

THE HONOURABLE WILLIAM EDGELL
Second Defendant

Coram: Justice A. SAKSAK

JUDGMENT

Having heard Mr. Garry Blake for the Plaintiff and having read the Affidavitsabelle Ohlen and the annexures thereto,

And having heard Ms. Ms. Susan Bothmann Barlow for the First Defendants, the Court hereby decides the issues raised for its consideration and determination in the following manner :-

1. The date at which improvements to be valued.

This will be 12^th February 1990. This is the date on which the Plaintiff’s agent provided an estimated value of property at VT20 million but made an offer to settle for VT6 million. That offer is the first step of negotiation for compensation. The Certificate of Registered Negotiator is merely a document recognizing the Plaintiff’s right to "negotiate" for compensation. He got it on 19^th October 1981. What he could have done then was submit his claim to the custom-owners forthwith. In the event that the custom-owners did not agree to the amount, they would then have referred the matter to the Lands Referee for his determination. But they did not start to negotiate in accordance with their recognizance until 12 February 1990 some ten years later when they made an offer of VT6 million. This was made after the Lands Department had specifically written on 31^st January 1990 requesting same. It seems that this offer was not communicated to the Defendant but that does not matter. The fact is and the legal requirement is that negotiation had commenced and it was on 12 February 1990.

On 6^th July 1995 Mr. Hakwa wrote to the Minister of Lands and copied to Mele Trustees who acted on behalf of the First Defendant. In that letter the sum of VT12 million was offered. This is the second step of negotiations which the Plaintiff by right undertook. On 18^th July 1995 Mele Trustees responded in strongly worded letter which implies only that they were not prepared to accept the offer but instead wanted to proceed through the usual procedure i.e. by referring the matter to the Lands Referee.

The problem as I understand it is that by this time there was no Lands Referee and therefore it was impossible to adhere to the procedures intended by the appropriate legislations. There is nothing to suggest or show that the Defendant has made a referral to the Lands Referee for his determination. If they can show this Court that they have done so and are waiting for a Lands Referee to be appointed by the Government this Court would be happy to leave the matter to rest sole on the Lands Referee. But if it is shown that they have not done so, then it is clear that they are not genuine in their reliance on the procedures relating to the Lands Referee and their omission amounts to a denial to the Plaintiff their rights to be compensated according to law, and the Defendant to fulfil their legal obligation for payment of compensation.

I find that all parties here were at fault.

The Plaintiff could have been entitled to valuation of his property from 22 October 1981 but they failed to "negotiate" within the context of the Act. The Government failed to notify the Defendant about the offer of the Defendant made as per letter dated 12^th February 1990. The Defendant failed to or refused to corporate and enter into any useful discussion which would have led to mutual understanding and eventual settlement and/or referrals to the Lands Referee when there was one still in office.

The Defendant having failed and in their uncooporative attitude have shown a deliberate attempt not to fulfil their legal obligation. Therefore it is only fair and proper that the Plaintiff has brought an action before this Court for its determination. This is not referral. This is an action by way of a Writ of Summons. This Court can therefore by its inherent jurisdiction deal with the issue of compensation without having regard to the legal provisions of the usual procedures as anticipated by the Alienated Land Act, the Land Reform Act and the Lands Referee Act. This Court has a duty to determine a case where justice requires that it be so determined. This is one such case. And the Court will ensure that justice is done by receiving evidence in the usual way before it can make its determination as to the value. To be fair to all parties I have found that the appropriate date will be 12 February 1990.

2. Whether or not interest is and will be chargeable?

I repeat that this is not a referral under the usual land legislations and pursuant to the Lands Referee Act. Firstly there is no provision allowing such referrals. Therefore the Plaintiffs have proceeded in the usual way. Again due to its inherent powers this is a case where the Court should award interest on the amount of compensation or value but only on the condition that the Plaintiff can show that at the relevant period he obtained bank loan(s) to carry out any improvement for which he now claims compensation.

3. How Much Interest?

In my Judgment this should be left to be determined after having heard all the evidence.

4. Whether or not simple or compound interest?

To achieve fairness to the Plaintiff, interest should be compounded but again this should be determined only after having heard all the evidence.

5. Whether or not custom-owners should be granted the benefit of Section 17 of Alienated Land Act?

In the circumstances of the case and in the interests of Justice the custom-owners are entitled to be granted the benefit of Section 17 of the Alienated Land Act.

6. Whether or not a custom-owner the right to grant a lease over alienated land until such time as compensation has been made?

Generally the answer is no, except where land is undeveloped and the alienator has vacated. Here it depends on the evidence yet to be led from the Defendants but it is already evident that the land was developed to a certain extent.

7. In default of payment of compensation awarded by Court whether or not the Minister should be authorized to execute a lease in favour of the Plaintiff?

I have held that Section 17 of the A. L. A. would apply to the custom-owners in the event of default of payment. This Court cannot authorize the Minister to execute a lease in favour of a Plaintiff who fails to make payments. To do so would be to intrude into the jurisdiction of the Legislature. This relief is therefore refused.

The Court therefore grants the following DECLARATIONS AND ORDERS:-

1. That improvements are to be valued as at 12 February 1990.
2. That interest be calculated as at that date at the rate applying at the relevant period and is to be on a compound interest basis but which rate is yet to be decided on the condition that the Plaintiff has shown he had a bank loan or loans at the relevant period.
3. That the custom-owners be granted the benefit of Section 17 of the Alienated Land Act.
4. That a custom-owner has no right to grant a lease over alienated land until such time as compensation has been paid, and except by virtue of the proviso of Section 3 of the Land Reform Act.

Dated at Port Vila, this 21^st day of September, 1998.

BY THE COURT

Oliver A. SAKSAK
JUDGE