IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT LUGANVILLE/SANTO
(Civil Jurisdiction)
BETWEEN:
ALFRED RAUPEPE and others
Plaintiffs
AND:
lass="MsoNormal" align="center" style="text-align: center; ter; margin-top: 1; margin-bottom: 1">
ATHANAS RAUPEPE and DIANA
ASSANOUMA
First Defendants
AND:
DIREOF LAND RECORDS
Second Defendant
AND:
PAUL TELUKLUK
Third Defendant.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Coram: Mr JusOliver A
Saksak
Mr William Falau - Clerk
Counsel: Mr Saling N. Stephen
for the Plaintiffs
Mr Reynold Liu for the First
and Second Defendants
JUDGMENT
History of Proceedings/b>
This Action commenced in or
about August 1996 and had been adjourned on a number casions due to in
att attendance of
counsel and the parties. Hearing actually took place on 21st
July 1997 and the trial was adjourned part-heard. There was a
direction
hearing on 8th June 1998
On 21st August 1998 the
Plaintiffsesses were reconfirmed under Oath in regard to their evidenvidence
given on 21-25 July
1997 respectively. On 18th November 1998 the Court heard
evidence from one witness for the Plaintiffs and one witness for the
First
and Second Defendants. During this trial the third Defendant was not present
before the Court nor was he represented.
Affidavit of service has been
sworn, filed and served. Similarly Diana Assanouma was not in attendance
although she was
also served and an affidavit to that effect is in evidence.
Facts
Prior to independence in 1980
the Plaintiffs had formed aociation called Societe Raupepe. The Societe
was not not registered.
It was comprised of mainly brothers of the Raupepe
Family namely Dominique Raupepe, Francis Raupepe, Joachin Raupepe and
others.
The Title in issue is No.
032(otle) situate at Side River. Prior to independence the propeproperty was
owned by one Roberto
Decillia who later was deported by the Government in
1980 due to his part in the 1980 Rebellion. One of the Plaintiffs namely
Dominique Raupepe worked for Decillia who later sold the land to the
Plaintiffs. The Plaintiffs occupied the property
until 1995 when the First
Defendants obtained eviction orders against the Plaintiffs who enquired and
found out that
the First Defendants had subdivided the Title into two parts
and he had caused a part to be transferred to them (being the
First
Defendant and his wife). The Old Title No was changed to a new Title No.
03/0471/066. The Plaintiffs made several
attempts to stop the transfer but
did not succeed.
Claims
The Plaintiffs come before this
Court seeking declarationt Lease Hold Title No 03/0471/066 is a
property jointjointly
purchased by the Plaintiffs and the named Defendants should
never have registered the property in their Sole names. Secondly
the
Plaintiffs seek a declaration that Lease Hold Title No. 03/0471/066 was
granted as a result of fraudulent dealing
between the First Defendants and
Third Defendant and therefore it is void and of no legal effect. Thirdly the
Plaintiffs
claim for an order rectifying the Register and fourthly that the
Lessees be struck off the register and substituted with the
Plaintiffs names
in the Lease and Register.
Decision
The will be Judgment in favour
of the Plaintiffs.
The Law
The relevant Law consideration by the Court is Section 100 of the Land Leases Act CAP [163]
whichwhich reads:-
1.
Subject to subsection (2) the Coue Court may order rectification of the register
by directing that any registration
be cancelled or amended where it is so
empowered by this Act or where it is satisfied that any registration has
been
obtained, made or omitted by fraud or mistake.
2.
The rer shall not be rectified soed so as to affect the Title of a
proprietor who is in possession and acquired the
interest for valuable
consideration, unless such proprietor had knowledge of the omission, fraud
as mistake in consequence
of which the rectification is sought, or caused
such omission, fraud or mistake or substantially contributed to it by his
act, neglect or default."
Finding/p>
e evidence both Oral and
by affidavits it is shown that the Lease in the name of the the First Defendants
was obtained
by fraud and by mistake for the following reasons:-
(1)
When the Plae Plaintiffs formed
Societe Raupepe, the First Defendant were in Vila and were not part of it.
(2)
When the Plaintiffs contributed
funds towards the purchase of land and materials to the amount of VT
477.000, the First
Defendants made no financial contribution (see Exhibit
P-5.)
(3)
pan lang="EN-GB" style="font-size: 12.0pt">That being so, tso, the first
Defendants made no valuable consideration required
under subsection (2) of
Section 100 of the Act.
(4)
On February 9th 1995 th95 the first
Defendant had agreed and recorded their agreement that Title No 03/0471/032
held in
the name of Raupepe Company be maintained in that name (see Exhibit
P-8).
(5)
From February 15th 1992 Francis
Raupepe on behalf of Societe Raupepe was paying for the Municipal property
tax (see Exhibit
P1A- 1D(1). The inference drawn by this is that the
property belongs to Societe Raupepe. If it was not, then it would follow
that no payment of property tax would have been necessary.
(6)
It is clear to me that Atht Athanas
Raupepe knew about the property being jointly owned in the name of Societe
Raupepe
and further that property taxes were being paid. When he therefore
negotiated the Lease without advising the then Minister
(now third Defendant
)about these factors, he was fraudulent in so acting in breach of Section
100 (1) of the Act.
(7)
On 17th Augh August 1995 the third
Defendant issued Certificates of Registered Negotiator in respect of Title
No 03/0471/032
(3353) to Francis Raupepe (Exhibit P-2), Joachin Raupepe
(Exhibit P-3), and to Athanas Raupepe (Exhibit P-4). When the third
Defendant amended the Title No by crossing out No 03/0471/032 and
substituting No 03/0471/066 without doing the same
for certificates of
Francis and Joachin, there was a mistake. Indeed it can also be inferred
that such was a result of
a fraudulent dealing.
(8)
There is evidence that that the
First Defendant had promised to supply the Third Defendant with free bricks
and two sinks.
One of the two sinks was seen in the First Defendant 's dock
by Peter Nwele, Plaintiffs witness.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
For the forgoing reasons I am
satisfied that Lease Hold Title number 03/0471/066 was obtained by the First
Defendant as
a result of fraudulent dealings and mistake.
Declarations
The Court now declares as
lows:-
<
(1)
That Lease Title No 03/0471/066
is a property jointly purchased by the Plaintiffs and that the First named
Defendants
should never have registered the property in their sole names.
(2)
That Lhat Lease Title No 03/0471/066
was granted as a result of fraudulent dealing and mistake between the First
named
Defendants and Third Defendant It is therefore declared Null and Void
and of no legal effect.
: 1">
The Court now orders that:-
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(1)
The second named Deed Defendant do
cause without delay rectification of the Register
(2)
The Lessees sees be struck off the
Register and the names of all the Plaintiffs mentioned in the Originating
Summons dated
4th October 1996 be inserted and included in Lease Title No
03/0471/066 in the lease and Register.
(3)
pan lang="EN-GB" style="font-size: 12.0pt">The Defendants wnts will pay the
Plaintiff's costs of and incidental to these
proceedings to be taxed if not
agreed.
DATED at Luganville this & th
day of Novem1998m1998.
<
BY THE COURT
OLIVER A SAKSAK
Judge of the Supreme Court
