Keliu v Maling [2004] VUSC 31; Civil Case 005 of 2004 (17 November 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No. 05 of 2004

BETWEEN:

WILLIE SILAS KELIU
Appellant

AND:

LEIWIA MALING AND BEN DAVID
Respondents

Mrs. Mary Grace Nari for the appellant
Mr. Stephen Joel for the respondents

JUDGMENT

This is a Notice of Appeal dated 5 January 2004, against the Judgment and Orders of the Magistrate’s Court issued on 10 December 2003.

On 10 December 2003, the learned Magistrate, Mrs. Nesbeth Wilson, issued the following Orders:

1. The defendant has 14 days to vacate the property Title No. 11/OH33/017 while the plaintiff Leiwia Maling have immediate access to the said property;
   
2. That the defendant shall immediately be ceased from collecting rents from the rented flats in the property and the plaintiff Leiwia Maling shall collect rents commencing with the December 2003 rents;
   
3. Taking into account that the defendant and or members of his family had been collecting about 31,000 Vatu monthly that in fact had collected more than Vatu 10 million over that period of 28 years the Court hereby orders the defendant to pay by way of mesne rent in the sum of 1,000,000 to the plaintiff Leiwia Maling;
   
4. That the defendant shall not damage any buildings and or anything on the property when vacates the property;
   
5. That the parties pay their own costs;
   
6. Breach of this orders the defendant will be brought before the Court to be dealt with;
   
7. Aggrieved party has 28 days to appeal.
   

The appeal seeks the following Orders:

1. That the appeal be allowed.
   
2. That all the Orders of the Court below dated 10 December 2003 be set aside.
   
3. That the respondent pay the appellant’s costs of this Appeal and those of the Court below.
   

The appeal is advanced on the grounds that the learned Magistrate:

1. Erred in fact and in law and/or mixed question of fact and law as follows:
   

(a) There was no formal agreement for the appellant to pay rent on this land and therefore there is no basis for the awarding of the mesne rent.

There is no proof that the defendant or his family did in fact collect VT1,000,000 over the period of 28 years.

(b) The Court improperly and without giving any weight or due consideration dismissed the appellant’s counterclaim as there was no mention of a claim for VT10,000,000 by the defendant in his counterclaim.

(c) Such other grounds as may be advanced by the appellant’s counsel.

Submissions by counsel

In ground 1

The appellant alleged as follows:

(a) There was no formal agreement for the appellant to pay rent on this land and therefore there is no basis for the awarding of the mesne rent. There is no proof that the defendant or his family did in fact collect VT1,000,000 over the period of 28 years.

The appellant’s father with the consent of the respondent’s father (Leiwia’s) resided on the land from 1974 to 1998 when he left Vila to return on his Island of Epi.

In 1992, the respondents registered land Title 11/OH33/017 in their joint names as lessors.

In 1998, the appellant live and reside on the property until the Orders of the Court. From 1998, dispute started between the appellant and respondents mainly as the appellant collected rents on the respondents’ land property. There was no agreement for appellant or his family to pay rent on the land.

The facts show there is an agreement between the respondents’ fathers to live on the land and looked after the property on his behalf in 1978. He then leaved the land and asked his son to enter the land. The critical period must be from 1998 when the appellant entered the property and collected rents while since 1992 the respondents become lease holders of the said property.

In the Magistrate’s Court, Eviction Orders were sought and granted. Rent and mesne rent also were sought.

The Magistrate’s Court ordered eviction of the appellant. As in 1992, the respondents became owner of the property, the Magistrate ordered the appellant to cease collecting rents and directed the respondents to collect rents from people living on the property and evicted the appellant.

The Magistrate ordered also the appellant to pay compensation of Vatu 1,000,000 for mesne rent of the appellant. In law she is right to make such an order on the facts before her. The question is whether or not the amount is properly assessed.

The factual circumstances of this case started from 1974 to 2003: 28 years. However, the actual claim seems to be mainly against the appellant. The starting point for consideration must be 1998 which shows the period the appellant started to collect rents from the respondents’ property. On the evidence before Magistrate’s Court there is a misapprehension of facts found by that Court.

The assessment should have been made from 1998 to 2003, when the matter was brought before the Court not from 1974 to 2003. The amount of mesne rent must be reduced. Half of 1,000,000 Vatu would be a reasonable amount on the facts.

The appeal must then be allowed. The amount of mesne rent is therefore reduced to 500,000 Vatu.

In ground 2

The appellant alleged that the Court improperly and without giving any weight or due consideration dismissed the appellant’s counterclaim as there was no mention of a claim for 10,000,000 Vatu by the defendant in his counterclaim.

Before the Magistrate’s Court, the appellant (then) defendant, did not deny the respondents’ right of possession of land Title No. 11/OH33/017.

The appellant made a counterclaim for:

(1) Damage for tree crops on land Title 11/OH33/017 at Vatu 99,83;

(2) Compensation relating to buildings on the above land to be assessed.

(3) Interests and costs.

The appellant said the Magistrate’s Court improperly and without giving any weight or due consideration dismissed the counterclaim. There was no counterclaim of Vatu 10,000,000.

The appellant’s father occupied the land Title 11/OH33/017 from 1974 to 1998. In 1998, he returned to his home Island of Epi and his son, the appellant, entered into the said land and collected rents from the tenants.

A question arises as to whether or not the appellant can claim on behalf of his father or could represent his father or could claim for compensation for developments made by his father on behalf of his father.

As a general proposition, the appellant could claim on behalf of his father and family. However, a claim must be substantiated by evidential facts to satisfy the onus of proof on balance of probability.

In the present case, the facts as found by the learned Magistrate are that “that none of the parties were on the land property when the cash crops and tree crops were planted, thus non of them knows exactly who planted the crops.” Further, the Magistrate said “the defendant had just entered the property in 1998 and that what he had been doing in the property was collecting rents. The evidence does not reveal that the defendant had made any development on the abovementioned property. What he produced in evidence on oath before the Courts is that he is claiming compensation on behalf of his father who is not a party in this case.”

She finally concluded on her findings that the defendant has not proved on the balance of probability that he or his family had planted cash crops, tree crops and other plants on the property. She further said the defendant (now appellant) has not satisfied the Court on the required standard improvements on the said land which could have been carried out by himself.

The learned Magistrates further, found that the evidence in support of the defendant’s case did not show when, how and who had effected the developments in the property including the building of houses and planting of trees.

On the perusal of the Court’s file and notes of evidence and the documents before the Magistrate’s Court, there was no other conclusion of facts to arrive at. The arguments and submissions of the appellant on that point must be rejected. The claim for damage for tree crops planted on the land must fail.

The father of the appellant was not called upon to give evidence of what type of developments he was doing in respect to the buildings he built on the land. If there were same evidence of this nature, the appellant will be entitled to rely upon. In any event, the facts are understood to be that the appellant’s father with the consent of one of the respondent’s father (Mrs. Leiwia’s), lived and looked after the said property since 1974. In 1998, he decided to return to his Island of Epi and asked his son, the appellant, Silas Willie Keliu to enter the land, which he did. There is no evidence as to what the father did and at what cost. The claim for compensation relating to buildings on the land Title 11/OH33/017 must also fail.

The appellant contended that the Magistrate did not consider the counterclaim before she dismissed it. The Magistrate considered the counterclaim. There was no specific amount claimed in respect to the compensation for the improvements on the buildings. The evidence arose out between the appellant and the respondents about an attempt by the appellant and the respondents to settle this dispute before these proceedings. The appellant gave evidence to the effect that he will be ready to leave the property but the respondents must pay him 10,000,000 Vatu as the compensation for the improvements on the land.

As the claim for compensation about the improvement on the buildings is a general claim without a specific amount pleaded (i.e. the amount is to be assessed), there was no further evidence about an amount for compensation advanced except the evidence of the meeting between the above parties leading up to the appellant clarifying his position that he would be ready to leave the property on the condition that the respondents pay him Vatu 10,000,000 as the compensation for the improvements on the land.

On the facts before the Magistrate and bearing in mind of the way the claim for compensation for the developments on the land including the buildings was made (yet to be assessed), it is open to the Magistrate to form a view that the 10,000,000 Vatu mentioned in the evidence in support of the appellant’s case, constitute the amount to be assessed. The learned Magistrate had considered the claim and reached the conclusion that the amount of 10 million Vatu is beyond her jurisdiction. The learned Magistrate had applied her mind on that piece of evidence. She had considered it when she said “the Court also considered the fact that the compensation claimed by the defendant is not for what he had done himself but for what his father who is not a party to this case has done and considering the amount claimed in the sum of Vatu 10 million”, it is beyond her Court’s jurisdiction. She then dismissed the counterclaim.

It is clear the Magistrate had applied her mind and considered the counterclaim before she dismissed it. In her judgment, she found that the appellant collected rent from 1998 to date of proceedings and purchased two plots of land and a truck on his own name. The appellant retains these properties. She must have these facts in mind when she dismissed the counterclaim.

Bearing in mind of the factual circumstances of this case, there is nothing wrong in law for the Magistrate to dismiss the counterclaim as she did in this case.
Ground 2 of the appeal is also dismissed.

The following are orders of the Court:

1. The appeal is substantially dismissed, save for the amount of mesne rent which is now reduced from 1,000,000 Vatu to 500,000.
   
2. The appellant is ordered to pay Vatu 500,000 in the following:
   

(a) for the first six months, as of today’s date (17 May 2004) the appellant must pay 7,000 VT per month to the respondents.

(b) After the expiry of six (6) months leave is granted to the respondents to apply to the Court to have the financial situation of the appellant re-assessed.

3. That Orders 1, 4 and 5 of the Magistrate’s Court must be enforced save that the appellant is given 1 month from today’s date to vacate the respondents’ land property Title 11/OH33/017, i.e. by 17 June 2004.
   

4. There is no Order as to costs.

Dated at Port-Vila this 17^th day of May 2004

BY THE COURT

Vincent LUNABEK
Chief Justice