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Supreme Court of Vanuatu |
IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No. 14 of 2004
BETWEEN:
JOHN KALOMTAK WIWI FAMILY
Claimants
AND:
MINISTER OF LANDS
First Defendant
AND:
GOVERNMENT OF THE REPUBLIC OF VANUATU
Second Defendant
Coram: Justice Treston
Mr. Boar for Claimant
Mr. Edwards & Ms. Williams-Reur for Defendants
Dates of Hearing: 13 July & 19 August 2004
Date of Decision: 2 September 2004
DECISION ON DEFENDANTS' APPLICATION TO STRIKE OUT CLAIM
CLAIM
In an amended Supreme Court claim filed on 16 March 2004, the original claim having been filed on 30 January 2004, the Claimants, John Kalotak Wiwi Family, sought a declaration that the compensation payment for Port Vila Urban land on or about 1993 to the communities of Ifira, Erakor and Mele was null and void and in breach of the constitution and for an order directing the Defendants to release VT167, 019, 930 to the Claimants from its trust account together with interest of 12 % from 1986 to the date of release of the fund and costs.
The Claimants contended that the Government established the Port Vila Urban Land Corporation ("the Corporation") following order No. 31 of 1981 of the Land Reform Regulation. It was contended that that Corporation was established to hold money in trust for the custom owners of Port Vila Urban Land and in particular on 20 February 1986, the Corporation executed a commercial lease over titles 11/OY14/006, 11/OY21/013 and 11/OX23/009 ("the land") as lessor with Coral Tours Melanesia S. A. as Lessee. It was contended that the corporation acting on behalf of custom owners as lessor received VT170, 484, 939 being the consideration and premium for the grant of the lease with the consideration being provided as follows: -
VT3 465,000 for Government charges.
VT167, 019,390 for custom landowners.
It was accepted that under the Land Reform (Declaration of Public Land) Order No. 26 of 1981 the then Minister of Land declared certain areas of Port Vila to be Public Land which included the land.
It was contended that in or about 1991 the Defendants revoked Order 31 of 1981 whereunder the corporation was disbanded and the sum of VT167 019 939 was transferred to Ministry of Lands.
It was alleged that in or about 1993 the then Korman Government attempted to compensate the custom owners of Port Vila urban areas by paying certain amounts of money to the villages around Efate namely Ifira, Erakor and Mele but these payments were not made to the true custom owners. It was contended that the payment of such compensation was irregular and not done according to law and was in breach of Article 73 of the Constitution and that the Claimants were custom owners of the land. It was alleged that on numerous occasions the Claimants approached the Corporation for release of the VT167 019 930 but the corporation refused and subsequent demands to the Defendants for release the said sum were also unsuccessful.
The Defendants claimed that the Corporation was not established to hold money for custom owners and that as the land was already declared to be public land the amounts paid for consideration of the leases was Government money. The Defendants denied that the Claimants were the true custom owners of the land and submitted that the leases were executed on behalf of the Government and not on behalf of the custom owners and the Claimants were not entitled to the amount claimed. The Defendants denied that the Claimants had suffered any losses as a result of their actions.
APPLICATION
In an application filed on 4 June 2004 the Defendants sought orders that the claim be struck out and costs awarded to them on the grounds that the claim did not disclose a cause of action or alternatively that the claim as pleaded did not entitle the Claimants to the relief they sought.
EVIDENCE
I have taken into account the sworn statements of Kaluat Thomas (2), William Mahit and Ballen Kalsakau filed on behalf of the Claimants and the sworn statement of Paul B. Telukluk sworn on behalf of the Respondent.
SUBMISSIONS
The Defendants submitted that under Article 80 of the Constitution the Government may own land acquired by it in the public interest and that this land was declared to be public land under The Land Reform (Declaration of Public Land) Order No. 26 of 1981 and that the Claimants' rights as custom owners were extinguished by that declaration. It was accepted that compensation was due to the true custom owners but that this had been paid under the agreement of 17 July 1992 (see exhibit 'PT 1' to sworn statement of Paul B. Telukluk.) and it was too late to challenge that agreement for compensation which would have needed to have been done by way of Judicial Review or an action under contract both of which causes of action are now statute barred and, in effect, that there was no cause of action available to the Claimants.
The Claimants in response submitted that they are the custom owners (see exhibit 'KT11' to sworn statement of Kaluaat Thomas of 17 August 2004) and they themselves received no compensation and that any payments made under the leases granted to Coral Tours Melanesia S. A. were made to the lessor on behalf of the custom owners and should be refunded to them. The Claimants submitted that the sworn statements established that the Claimants were the custom owners and that as the VT167 019 939 had been paid as compensation to custom owners and ought to be refunded to them. They submitted that at the time that the lease was signed on 2 February 1986 (see exhibit 'KT1' to sworn statement of Kaluaat Thomas of 12 May 2004) no compensation had been paid to the custom owners and thus any monies paid to the Port Vila Urban Land Corporation belonged to the custom owners.
Submissions were made that under the Constitution any claim by the Claimants was not statute barred because the moneys received by the Port Vila Urban Land Corporation were trust moneys and the Defendants had an ongoing obligation under the Constitution to identify the true custom owners and to pay them appropriate compensation. It was argued that the provisions of the Land Reform (Port Vila Urban Land Corporation) order No. 30 of 1981 meant that the corporation entered into the 1986 lease on behalf of the custom owners and held the land in trust for them and that monies held on trust are not subject to statutory limitations.
It was submitted by the Claimants that Order No. 26 of 1981 was a declaration which did not obviate (sic) the Claimants' reasonable compensation for confiscation of their land and that no valuation had been done to arrive at appropriate compensation for the land as between the Claimants and the Government under the provisions of S.9B of Part 6A of the Land Reform (Amendment) Act No. 35 of 2000.
In relation to the compensation payment made in or about 1993, the Claimants denied that there was any agreement between them and the Government, and that any surplus funds under S.13 of the Land Reform (Port Vila Urban Land Corporation) order No. 30 of 1981 should be paid to them.
The Claimants also relied on the Court of Appeal decision of Kalses & Ors v Le Manganese De Vate Limited [2004] VUCA 8; CAC 148 of 2003 as for the proposition that any claim could not be struck out under the Civil Procedure Rules No. 49 of 2002 until all the evidence was placed before the Court.
LAW
The Constitution of the Republic of Vanuatu provides for questions concerning land in Chapter 12. Relevant articles in relation to that are as follows:-
"LAND BELONGS TO CUSTOM OWNERS
BASIS OF OWNERSHIP AND USE
PERPETUAL OWNERSHIP
COMPENSATION
GOVERNMENT MAY OWN LAND
It is accepted that the Land Reform (Declaration of Public Land) Order No. 26 of 1981 included the land, which was ordered to be public land on 26 January 1981. That order provided as follows:-
"REPUBLIC OF VANUATU
Land Reform (Declaration of Public Land)
Order No. 26 of 1981
To provide for the Declaration of certain land situated within the Urban Physical Planning Boundaries of Port Vila and Luganville to be public land.
IN EXERCISE of the power contained in Section 12 of the Land Reform Regulation 1980, I hereby made the following Order:
MADE at Port Vila the 26th day of Jan. 1981.
(sign)
T. Reuben
Acting Minister of Lands"
Section 4 (j) of the Land Reform (Port Vila Urban Land Corporation) order No. 30 of 1981 provides as follows: -
"The Corporation shall with respect to Public Land, have the following powers:
(j) enter into agreements, leases, conveyances or transfer of land on behalf of the Government or any custom owners and a recital in any such agreement, leases, conveyance or transfer that the Corporation is acting on behalf of the Government or custom owners as the case may be shall be sufficient to indemnify any other party to such agreement, leases, conveyance or transfer;"
Section 13 provides as follows: -
"13. Any surplus funds generated by the Corporation in the course of carrying out its functions and power shall be held by it in trust for those parties properly entitled thereto."
Article 47 (1) of the Constitution provides as follows: -
"THE JUDICIARY
47. (1) The administration of justice is vested in the judiciary, who are subject only to the Constitution and the law. The function of the judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine the matter according to substantial justice and whenever possible in conformity with custom."
Article 49 (1) provides as follows: -
"THE SUPREME COURT, THE CHIEF JUSTICE AND OTHER JUDGES
49. (1) The Supreme Court has unlimited jurisdiction to hear and determine any civil or criminal proceedings, and such other jurisdiction and powers as may be conferred on it by the Constitution or by law."
The Limitation Act No. 4 of 1991 provides as follows: -
- Section 3 (1) (a) and Section 7 (1).
"LIMITATION OF ACTIONS OF CONTRACTS AND TORT AND CERTAIN ACTIONS
(a) Actions founded on simple contract or on tort;..."
"LIMITATION OF ACTIONS TO RECOVER MONEY SECURED BY A MORTGAGE OR CHARGE OR TO RECOVER PROCEEDS OF THE TRANSFER OF ANY INTEREST IN LAND.
FINDINGS
The Defendants do not necessarily accept that the Claimants are the custom owners of the land. However that is largely immaterial because under the Constitution, even though custom owners have the perpetual ownership of their land under Article 75, the Government may own land acquired by it in the public interest under Article 80, and I am not aware of any challenge to order No. 26 of 1981.
Once the land became public land, custom owners, including the Claimants, if that was their position, ceased to have rights of ownership, although they had a right to compensation under Article 77. It is also quite clear that the lease of 20 February 1986 was not entered on behalf of custom owners as it could have been under S.4 (j) (above).
The lease between the Corporation and Coral Tours Melanesia S. A. in February 1984 was not between the custom owners and the lessee but was between the Corporation as lessor and the lessee and notwithstanding what Mr. Taka may have understood and documented in his note (annex KT7) it is clear, in my view, that payment by the lessee could never have been due to the custom owners but only to the Government in relation to land which had been declared to be public land under the order. That of course does not deal with the veracity or admissibility of annexure KT7 but is simply a matter of legal interpretation of the status and ownership of the land. To make it more difficult for the Claimants it seems that the original of KT7 is now unavailable (see paragraph 2 of sworn statement of Kaluaat Thomas of 17 August 2004). Even the copy produced seems to be in two handwritings.
In addition, the Government fulfilled its responsibilities under Article 77 by the agreement of 17 July 1992. That agreement was effected between the Government and the representatives of the former custom owners of Port Vila urban land. The present Claimants now contend that they are dissatisfied with that agreement and are exercising their rights under the law to have it declared null and void. Even on their own evidence they were not declared custom owners until 27 January 2000. That in itself was only by the council members of Erakor village and I note the comments if the Court of Appeal in The Valele Family v Touru [2002] VUCA 3; CAC 01/2002 when it was said that the proper bodies to determine custom ownership of land are the Courts, in the first instance the local Island Court (or its successor in law) and if there is an appeal, the Supreme Court. The Court said, "This conclusion immediately points up a difficulty with attempted settlements of ownership disputes arranged through bodies such as councils of chiefs that are not part of the constitutional court system". It is the Courts who are the only bodies recognised under the Constitution with powers to determine custom ownership.
The Claimants have other difficulties. First the declaration of custom owners of "Eleo" land was in 2002 nearly 10 years after the settlement agreement in 1992 and the Paramount Chief who was part of that declaring council was Chief Waya Tenene who was also a signatory to the agreement for compensation payment for Erakor on 17 July 1992. So the Claimants on the one hand seek to rely on Chief Tenene for the declaration and on the other hand to disavow his authority to sign the agreement. Second the Claimant, also conceded in submissions that they knew about the 1992 agreement at the time but neglected to do anything about it until they filed their amended claim on 16 March 2004. Further, none of compensation under the 1992 Agreement would have included the amount paid by Coral Tours Melanesia S. A. to the Corporation at the time of the grant of lease over the land. Those payments was pursuant to a lease agreement (annex KT1) to which the former custom owners were never a party and the lease did not make any reference to their rights as they see them.
I find that there is no merit in the Claimants' submission that the monies under the lease were paid in 1986 before the settlement of compensation to the custom owners was made in 1992. The two payments are separate and distinct and I do not agree that the payment under the lease should be regarded as being made on account of compensation. The legislation does not say that and the monies cannot be said to be surplus funds under S.13 of the Land Reform (Port Vila Urban Land Corporation) Order No. 30 of 1981.
As to the need for market value of the land to be taken into account that was provided for in the Land Reform (Amendment) Act No. 35 of 2000 which did not commence until 05 February 2001. That amendment is not retrospective back to 1992.
In addition I do not consider that the letters or evidence from various former ministers can override the clear meaning of the law on the face of the legislation
The Court is aware of and mindful of the Court of Appeal decision in Kalses & ors v Le Manganese de Vate Limited & ors [2004] VUCA 8; CAC 34 of 2003 where the Court said as follows: -
"The Civil Procedure Rules (CPR) make no specific provision for an application by a defendant to strike out a claim. The CPR make provision in Part 9 of "Ending a Proceeding Early", but those rules are directed only to situations where a claimant seeks to obtain an early judgment. They do not make provision for the reverse situation where a defendant wants to bring the proceedings to an early end.
The order sought by the defendants was not 'the claim' be struck out, not merely that the statement of claim be struck out. There are deficiencies in the pleading of a claim it is usual to seek to have only the pleading struck out, and leave is usually given to re-plead, at least once. To strike out a claim is a more serious step as it brings the whole proceedings to an end.
Application may be made under the rules for interlocutory order is "an order that does not finally determine the rights, duties and obligations of the parties to a proceeding": see Rule 7.1 (1). A question arose in the course of argument on this appeal whether the CPR permits an application to strike out the whole claim, as opposed to merely a pleading. In some cases to strike out a claim might finally determine rights. That would not be interlocutory order. However in this case counsel agreed that if the proceedings are struck out it is open to the claimants to bring fresh proceedings, so that point of interpretation of the CPR need nor determined in this case."
However this case, in my view, is not one where there are defects in the pleadings which are capable of being cured by amendment but is one when the whole basis of the action involved is defective. This is not an application for Interlocutory Orders and I am of the view that this Court has inherent powers under the Constitution to strike out a claim where, as here, it has no basis in law.
In the Kalses' case the Court of Appeal also dealt with the question of limitations and said that the issues plainly raised serious questions that should have gone to a full trial but in this case the limitation periods are in my view quite crucial. The claimant was not caught by surprise by the raising of the issue of limitations which may have been the situation in the Kalses' case because this court had directed that written submissions be filed prior to the hearing and the Claimants specifically addressed the question of limitations in its written and oral submissions.
As to the limitation questions, if the Claimants wished to establish that they were custom owners of the land and sought compensation for that land they would have needed to have filed the claim within twenty years of 26 January 1981 being the date of the transfer of the land from the custom land owners to the Government pursuant to the order (see section 7 (1) of The Limitation Act.).
Again, if the Claimants wished the Court to declare the agreement between the Government and the Representatives of the former custom owners of the Port Vila Urban Land (see Annexure PT1 to sworn statement of Paul B. Telukluk) null and void they would have needed to take action under that contractual agreement within six years of 17 July 1992 (see section 3 (1) of the Limitation Act.) I do not consider that the twenty year limitation period can run from the date of the agreement because the Government had no specific dealing with and made no specific offer to the Claimants at that time.
Any claim for judicial review would have needed to be made within 6 months of the agreement (see Rule 17.5 of the Civil Procedure Rules No. 49 of 2002).
In summary, I am of the view that the Claimants have no cause of action in relation to the specific amount of VT167, 019,930 which is the subject of this action arising from the lease of the land entered into in February 1986, and are out of time in relation to their challenge of the 1992 agreement.
SUMMARY
For the above reasons I find that the claim does not disclose a cause of action and does not entitle the Claimants to the relief that they seek. Accordingly the proceeding is struck out.
COSTS
I award costs against the Claimant to the Defendants on the standard basis as agreed or as determined by the Court.
Dated AT PORT VILA, this 02nd day of September 2004
BY THE COURT
P. I. TRESTON
Judge
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