Bongnaim v Government of the Republic of Vanuatu [2001] VUSC 2; Civil Case 018 of 1999 (5 February 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT PORT VILA

Civil Jurisdiction
Civil Case No. 18 of 1999

BETWEEN:

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IRENE BONGNAIM
Appellant

AND:

THE GOVERNMENT OF VANUATU
Defendant

JUDGMENT

The appellant currently occupies the land comprised in title number 11/0D22/066, a residential plot. In 1998 the Government sought to evict him from the land, stating it belonged to the Government and he had no right to be there.

The appellant, in the Magistrates Court hearing, asserted he had a lease over the property for fifty years and that he had purchased it properly and in accordance with the law.

By a judgment dated 16 October 1998 the learned magistrate found that no lease had been registered and therefore the appellant could not lawfully occupy the land. He further found that the agreement that gave rise to the supposed lease was not lawful. This was so despite the appellant’s assertions that he had done his best to pay various sums and had frequently tried to have the lease properly registered. He had stated in the Magistrates Court that he was wrongly stopped from obtaining registration.

There are twelve grounds of appeal alleging misapplications of sections 110, 14, 15 and 22 of the Land Leases Act [Cap 163], misdirection upon fact concerning the legality of the contract and failing to apply properly the defendants’ evidence. The submissions in support of those grounds are set out in writing.

The respondent replied there was no lease. There might have been some confusion in distinguishing between the lease and the agreement for the lease, but the finding that there was no lawful or at least enforceable contract was correct. The respondent said the Director of Lands could and did properly refuse to register the land. The Magistrate so found and that finding should not be disturbed. As far as the contract was concerned it was probably unconstitutional, it had too many defects to be enforceable and in any event the appellant had not paid anything like the money he should have done.

It is agreed by both parties that no lease was registered. There might have been an agreement for a lease, but no lease was registered. Section 22 of the Land Leases Act states-

No registered lease or mortgage shall be capable of being created or disposed of except in accordance with this Act. Every attempt to create or dispose of a registered lease or mortgage or to create, extinguish, transfer, vary or affect, any right or interest in a registered lease or mortgage otherwise than in accordance with this Act shall be ineffectual to create, or dispose of a registered lease or mortgage or to create, extinguish, transfer, vary or affect any right or interest in the lease or mortgage.

Subject to the provisions of subsection (3) every instrument creating or disposing of a registered lease or mortgage shall be registered.

(5) Nothing in this section shall be construed so as to prevent any unregistered instrument from operating as a contract.

In these circumstances the best the appellant can assert is an unregistered instrument acting as a contract, as per subsection 5. The appellant took up occupation of the premises in October 1996 upon being appointed a second secretary. The lease was on its face, signed sometime in 1994 approved by the Minister of Land on 6^th October 1995. On 5 March 1998, that appointment was terminated and notice to quit was issued on 9^th March 1998.

The appellants’ advocate told this court that the appellant has been doing everything he can to obtain registration. However, at no time were any proceedings or claims made for enforcement of the contract, he says, until the eviction hearing.

The appellants’ advocate accepted that the evidence showed that he had only paid some of the fees for the lease, and less than a quarter of the premium. It was further accepted that normal monthly rent was deducted during his appointment. The appellant allowed this to happen, and did not pay Vatu 14,676 annual rent due under the “lease”.

It is difficult to see how the appellant can challenge the Magistrates’ findings concerning the non-registration of the lease when he accepts that only a small part of the premium had been paid. Quite simply, the appellant accepts the lease wasn’t registered.

This difficulty is increased when it is accepted that not all fees had been paid. The Magistrate found this as a fact. It is accepted.

s.110(1) of the Act states

“The fees specified in the schedule to this Act shall be paid in respect of the matter specified therein and the director may refuse registration until the fees are paid”.

The “ lease” states the term is for “50 (fifty) years commencing on the ………day of ……………….1994”. The day and month are blank. The appellant’s advocate told this court it was intended the lease would commence on the date of registration. Yet if the premium and fees are not fully paid it is difficult to see how any criticism can be made of the Magistrate’s finding that the refusal to register the lease was correct.

There is no necessity for me to consider all the reasons the Magistrate gave for finding the contract itself illegal.

The appellant’s appointment as second secretary took place in October 1996, and he took up occupation. The “lease” was stated to run for fifty years from an unspecified date in 1994. There is no date in 1994 as to when the appellant and his witness appeared before the senior lands officer to sign.

Paragraph 5 is incomplete. Ministerial approval seems to have occurred on 6^th October 1995, yet the Minister signed as lessor on 6^th October 1994.

The learned Magistrate found the “lease arrangement very unusual and erroneous in as far as it deprive the 4 committees and subsequently, the Minister responsible for Government housing to give their views to such an arrangement … Not only that but it contradicts the whole objectives of the use of the property and most of all deprives the owner, the government, to use of the property”.

I do not make a ruling as to whether the magistrate should and could have made such findings. They are certainly matters which the public at large would appreciate.

I must judge this case purely in accordance with legal principles. I am satisfied the magistrate was correct in finding there was no enforceable contract. The “lease” document itself is not clear enough in its terms to constitute a contract-leaving aside all that occurred before and after.

In these circumstances the appellant has no right of any kind to occupy the land and has not had since the notice to quit.

A large measure of sympathy might have accrued to the appellant if he had paid all the due fees for the lease to the Government if he had paid more than a small portion of the premium to the Government if even that payment had been earlier than January 1998, if he had paid the annual rent for the lease to the Government, if he had taken proper action to stop his monthly rent payments, if he had pursued his appeal properly and expeditiously, if he had taken proper action to enforce what he says he regarded as a legal agreement and enforce its registration. But he did not do so. He has lived in the property for nearly three years without paying rent.

I am satisfied the magistrate was correct in finding there was no registered or registrable lease, there was no contract, the Government is the owner of the property, and correct in making an order to vacate the premises, to pay rent and mesne profits and costs.

In only one respect would I modify the Magistrates’ order. The appellant has paid some monies to the Government in respect of a supposed contract. He is liable for rent and mesne profits. I will hear the parties upon the sums owed in rent and mesne profits and what credit should be given. I will order an inspection be made of the premises in the next 24 hours by a Government housing officer to ascertain its condition. I will hear the parties on the time to be allowed for the vacation of the premises, and costs.

Dated at Port Vila this 5^th day of February 2001.

Hearing of 9^th February 2001

Having heard Mr.Kalsakau and Mr. Boar concerning sums paid by the appellant under the supposed contract and the claim for unpaid rent, mesne profits and costs I give judgment as follows:

Unpaid rent and mesne profis

April 98 – March 01 – 36 months at 15,084 = 543,384

Less various fees paid = 522,961

Judgment for Vatu 20,423

Costs agreed at 69,650

Judgement sum and costs to be paid by 31^st May 2001.

The Appellant is to vacate the premises by 9.00am on 2^nd April 2001, failing which I will consider an application for a writ of possession.

BY THE COURT

R. J. COVENTRY
Judge