Rarua v Kalsav [2005] VUSC 128; CC 088 2004 (21 November 2005)

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

CIVIL CASE No. 88 of 2004

BETWEEN:

Mr SHEM RARUA
of Sevenstars, Ohlen Area, P.O.Box 530, Port-Vila, Vanuatu
Claimant

AND:

Mr MARK KALSAV
of Sevenstars, Ohlen Area, P.O.Box 1720, Port-Vila, Vanuatu
Defendant

Coram: Chief Justice Vincent LUNABEK

Counsel: Mr Shem Raru in person on his own behalf
Mr Hillary Toa for the Defendant

Date of hearing: 21 November 2005
Date of judgment: 21 November 2005

JUDGMENT

This is a claim for the recovery of debt of VT1,698,000 by the Claimant, Mr Shem Rarua of Port-Vila against the Defendant, Mr Mark Kalsav of Port-Vila plus costs and interests of 4%.

The facts of this case which are not disputed, are set out below:

The Claimant and the Defendant are relatives. The Defendant resides and lives on a lease property of the Claimant.

On 16 April 1996, a Memorandum of Agreement was signed between the Claimant as “proprietor” and the Defendant as “the purchaser” over a land lease title No.11/OH22/054 of the Claimant. The terms of the agreement shows that:

“(1) The Proprietor agrees to sell the lease of land title No.11/OH22/054 to the purchaser and the purchaser accepts the agreed price at 2,268,000VT.

(2) The Purchaser shall deposit 300,000VT to the proprietor and thereafter pay a minimum of 20,000VT monthly instalment and any other amount above whenever affordable.

(3) The outstanding 1,968,000VT shall be paid between 3-5 years interest free.

(4) On receipt of 300,000VT the Proprietor shall sign “consent of Transfer” form as soon as practicable.

(5) The Purchaser shall thereafter have full authority to occupy the said land and begin any development as appropriate.

(6) The Purchaser, after signing this agreement shall assume full responsibility of paying the annual land taxes levy on the said title.

(7) The commencement of this agreement shall come into force on the date of its signing.

Dated this 16^th day of April 1996, at Port-Vila.

SHEM RARUA MARK KALSAV”

Before the transfer occurred, and as shown in the evidence of the Defendant which is not disputed by the Claimant, the Claimant asked the Defendant to pay him some money and he will transfer the land lease title No.11/OH22/054 to him (the Defendant).

On 8^th October 1996, the Claimant issued a statement agreeing to transfer the said land title to the Defendant at the price value of VT1,200,000.

The statement reads:-

“8^th October, 1996

To Whom It May Concern

This is to certify that I am the sole holder of the land title No.11/OH22/055.

Irrespective of the valuation done by the Investment Real Estate Sales at VT2,268,000 in March 1996 (copy attached) I have agreed to transfer the said land title to Mr Mark Kalsav at the value of VT1,200,000.

I can be contacted at P.O.Box 530, Phone 23180 and Fax 23180.

SHEM RARUA”

The Claimant informs the Court that there was a typing error in respect to the land Lease Title No. which should be No.11/OH22/054 but not No.11/OH22/055 as appearing in the statement.

On 23 December 1996, the Minister of Lands, then Hon. Joe Natuman, consented to transfer the Lease Title 11/OH22/054 from the Claimant (Shem Rarua) to the benefit of the Defendant (Mark Kalsav).

The land Lease Title No.11/OH22/054 was transferred by the Claimant (as transferor) to the Defendant (as transferee) on 10 January 1997. The transferor has received from the transferee the sum of VT one million two hundred thousand Vatu (1,200,000VT) being for the consideration for the transfer.

The Claimant now claims for the balance of VT1,968,000 he said the Defendant owes him under the Memorandum of Agreement dated 16 April 1996.

The Claimant gave evidence. His evidence confirms his claim on the basis of the Memorandum of Agreement dated 16 April 1996. He claims for the outstanding of VT1,968,000 under the said Agreement.

He accepts that he transferred the land Lease Title No.11/OH22/054 to the Defendant. He accepts he received an amount of VT1,200,000 for the consideration of the transfer of the lease to the Defendant and he still maintains, the Defendant owes him VT1,968,000.

The Defendant gave evidence. He said he agrees that he had an Agreement with the Claimant on 16 April 1996. The sale price of the land Lease Title was VT2,268,000. He said the Claimant told him to transfer the land to him subject for him to pay VT1,200,000 for the transfer. He confirms he paid Vatu 1,200,000 for the transfer.

The land Lease Title No.11/OH22/054 was transferred to him by the Claimant on 10 January 1997. He describes how he paid VT1,200,000 for the lease. He made a loan of VT800,000 plus 100,000VT in cash and plus 300,000VT he already paid, totalling 1,200,000VT.

He said the Minister gave his consent for the transfer on 23 December 1996. He says his understanding is that the Claimant agrees to transfer the Lease to him at a new value price of VT1,200,000 irrespective of the first valuation of the said land made at VT2,268,000. He says he pays the .amount of VT1,200,000. That is the end of it. The Claimant cannot go back to the first Agreement. He says he owes the Claimant nothing.

I have observed the Claimant and the Defendant and their demeanour in the witness box. The Claimant never mentioned anything about the payment of VT1,200,000. The Defendant does. The Claimant only accepts that he received the VT1,200,000 for the transfer when asked in cross examination. I make no finding of credibility.

On the face of the documents, it appears that the Claimant had transferred his title No.11/OH22/054 to the Defendant on 10 January 1997 for a payment of VT1,200,000 for the consideration of the transfer.

The statement of the Claimant on 8 October 1996 is the evidence of the fact that the Claimant agrees to change the value of the land from 2,268,000 Vatu as initially agreed between and by the parties on 16 April 1996 to an amount of VT1,200,000 which was paid to him on the transfer of the title.

The Claimant cannot rely on the first agreement which is superceded and rendered nugatory by the second valuation of VT1,200,000 of 8 October 1996 leading up to the transfer of the said property by the Claimant to the Defendant on 10 January 1997.

CONCLUSION

The Claimant has no cause of action to claim VT1,968,000. The claim must be dismissed. The Claimant to pay the costs of the Defendant in VT35,000 within 30 days from today's date.

ORDER

1. The claim is dismissed.

2. The costs are awarded in favour of the Defendant. They are assessed and determined in VT35,000.
   
3. The Claimant shall pay the Defendant’s costs of VT35,000 within 30 days from the date of this Judgment.
   

DATED at Port-Vila this 21^st day of November 2005

BY THE COURT

Vincent LUNABEK
Chief Justice