Jack v Bertaux [2000] VUSC 21; Civil Case 081 of 1999 (3 May 2000)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 81 of 1999

BETW>BETWEEN:

REUBEN JACK
Plaintiff

AND:

PATRICIA NADEGE BERTAUX
First Defendant

AND:

THE DIRECTOR, DEPARTMENT OF LANDS RECORDS
Second Defendant

JER">JUDGMENT

This is an application by the First Defendant for the Statement of Claim to be struck out and the acdismissed. Mr. Sugden appeared for the First Defendant and and Mr. Stephen for the Plaintiff.

Mr. Sugden asked the Court to use its inherent power to prevent an abuse of its process. He said the Court has power to end an action based on a claim that has no hope of succeeding, as such an action is vexatious and harassing and an abuse of the process of the Court.

Mr. Stephens accepted there was such a power but it was limited to where the proceedings were obviously frivolous or vexatious or an abuse of process. He said so long as the statement of claim or particulars disclose some cause of action, or raise some question fit to be decided by a Judge then the mere fact it is weak or unlikely to succeed is not a basis to strike it out.

This application is not based primarily on some alleged defect clear on the face of the pleadings, but within its inherent jurisdiction separate from the Rules of Court. Mr. Sugden stated such power is well recognised in this jurisdiction in Australia and the United Kingdom. Further, in exercising that power the Court can inform itself by the reception of evidence. Indeed, in this application Mr. Sugden relied on the affidavits, particularly that of George Tambe.

I am satisfied this Court does have such an inherent jurisdiction to stay or dismiss proceedings which are an abuse of process as being frivolous or vexatious, or which fail to show a reasonable cause of action. The Court can inform itself when such a question is raised by the reception of evidence, (see the extracts before the Court from Australian Civil Procedure "3^rd edition p. 180 and Order 18 Rule 19 the Supreme Court Practice of England and Wales)".

This is an extensive jurisdiction but one that is not readily exercised. Application should be made promptly and the power only used in plain and obvious cases. A reasonable cause of action means one with some chance of success when only the allegations in the pleadings are considered. When application is made to the inherent jurisdiction of the Court, all the facts can be gone into; and affidavits as to the facts are admissible (Willis v. Earl House [1893] UKLawRpCh 68; [1893] 2 Ch. 545 at p. 551 and 554).

It is common ground that the First Defendant was issued a lease of the property by the Second Defendant on 16 March 1999. (see paragraph 12 of the Plaintiffs particulars ["early 1998" should read "early 1999"] and Annex H of the affidavit of George Tambe).

By Section 100 (1) of the Land Leases Act:

"the Court may order rectification … 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."

The plaintiff did not seek to say his claim was based on grounds other than "fraud or mistake".

It is agreed that the registered proprietor is not in actual possession of the land. The first defendant avers that is because the plaintiff has wrongfully failed to vacate the land and should not benefit from his wrongdoing. That argument, however, tends to beg the question. The agreed fact is the registered proprietor is not in possession of the land and nowhere is there a suggestion that she was unlawfully or forcefully ejected from it.

Therefore to succeed in the main action the plaintiff must allege and show that the first defendant’s registration was made by fraud or mistake.

The plaintiff does not appear to be alleging fraud in his statement of claim, particulars or affidavit. The nearest that the plaintiff comes to alleging fraud or mistake is in paragraph 17 and 18 of the particulars, paragraphs 9 and 10 of his affidavit.

Mr. Sugden in his argument put forward three mistakes apparently being alleged. He addressed each in turn. Mr. Stephens did not seek to argue against that analysis save as set out below. That analysis is generous in seeking to establish what is the basis of the claim. Nevertheless I consider each in turn.

"Mistake 1" – That the plaintiff was registered negotiator for the land at the time the defendant applied for the land and Certificate of Registered Negotiator and so the lease should have been granted to him in priority to the Defendant. The plaintiff on the face of his pleadings and affidavit was a registered negotiator for two periods of a year. There was an overlap with the first defendant during the second period. The plaintiff failed to renew that second certificate and was not a registered negotiator at the time the lease was drawn up and the time it was registered. The plaintiff was clearly aware of what was happening as evidenced by the Public Solicitors letter of 13 and 14 January 1999 (Annex E of Mr. Tambe’s affidavit.) There is therefore no "mistake".

"Mistake 2" – At paragraph 17 of his particulars the plaintiff alleges the first defendant "misrepresented her entitlements and identity as alienator … and on that basis the second defendant believing her to be alienator executed a leasehold …" This links with paragraphs 1 and 2 of the claim itself.

The affidavit of George Tambe shows that at no stage did the grant of the lease proceed on the basis that the first defendant was the alienator nor had she represented she was. Indeed the first defendant was required to obtain the consent of the alienator, Roger Ali, which was forthcoming (Annex G) and Roger Ali had been granted a certificate of registered alienator (Annex A).

Paragraph 11 of the plaintiff’s affidavit of 6 April 2000 refers to Annex G saying:

"it is nothing but is simply a piece of paper and does not have any legal effect as Mr. Ali has lost his alienator status in respect of that property since 1982. Effectively, by failing to apply for an alienatorship in 1982 means Mr. Ali has completely last his pre-Independence Title No. 3367 and therefore has no alienatorship worthy to transfer".

At paragraph 4 (c) of his affidavit he states Roger Ali was granted a certificate of registered alienator and exhibited a copy. It would not appear that the plaintiff is challenging the authenticity of the letter of 18 January 1999, but purely its legal basis and effect. The plaintiff nowhere alleges from or in what way Ali could or did lose his alienator status.

At paragraph 4 of the plaintiff’s affidavit he says "I stopped paying rent to Jack because I was advised by David Mores of Department of Lands that Mr. Ali has lost his status as Alienator and that there are not in real existence a lease in the name of Jack of Eratap."

However, paragraph 18 (a) of the original Writ of Summons says "Land records indicates Roger Ali Alfonse is Alienator of the said land". Nowhere is it suggested in the Writ that Ali lost his alienator status nor anyone from the Department of Lands or elsewhere said he had. Indeed at paragraph 18 (b) and paragraph 2 of the claim the plaintiff appears to proceed on the basis that Ali was the alienator up to the time of grant of the lease.

So far as "Jack of Eratap" is concerned he only appears in the plaintiff’s affidavit at paragraph 5 and is acknowledged to have done nor more than play a trick on the plaintiff.

Accordingly I can find no basis even in the plaintiff’s documents by which he can found a cause of action under "Mistake 2".

"Mistake 3" - I have dealt with the effect of this mistake above when considering "Mistake 2". In any event the first defendant did not need to be an alienator to apply for a lease.

The written legal submission made on behalf of the plaintiff rests principally upon "Mistake 2". I have dealt with that above.

The plaintiff had been in occupation of the property by the time of grant of the lease for approximately eighteen years from shortly before or after Independence. During that period he paid little, if any, rent and none of the outgoings. The first defendant paid the outgoings on the property from 30 July 1980 to the date of issue of the lease.

The plaintiff did not seek a Certificate of registered negotiator until 1996 and held certificates from 11 November 1996 for one year and from 5 December 1997 for one year. During that period of just over two years he did not obtain a lease. At no time is it suggested he was the alienator of the land.

Whilst these matters do not in themselves mean the Court should exercise its inherent jurisdiction, it cannot be said to be unjust in the circumstances.

Accordingly I find that this action is vexatious and an abuse of the process of the Court in that it fails to show a reasonable cause of action. I therefore strike it out.

Dated at Port Vila, this 3^rd day of May, 2000.

R. J. COVENTRY
JUDGE.