Family Kalsarap v Natnaur [2007] VUSC 1; Civil Case 170 of 2005 (22 February 2007)

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

CIVIL CASE No.170 of 2005

BETWEEN:

FAMILY KALSARAP
represented By Waoute, Kaltonga Kalsarap and Edwin Kalsarap
Claimant

AND:

HARRY NATNAUR
First Defendant

AND:

MINISTER OF LANDS
Second Defendant

AND:

DIRECTOR OF LAND RECORDS
Third Defendant

AND:

LEIMAS KALSARAP
Fourth Defendant

AND:

RAY NGUI
Fifth Defendant

Counsel:
Mr George Nakou counsel for the Claimant - present
Mr James Tari counsel for the First, Fourth and Fifth Defendants – present
Mr Tom Joe Botleng counsel for the Second and Third Defendants consents to the jurisdiction of the Court and will be bound by any order of the Court

JUDGMENT

This is a claim for Orders, among other matters, under section 100 of the Land Leases Act [CAP.163]. The Claimants claim that the land Lease Title No.12/0931/011 registered over a custom land called "Emetatong" situated behind Erakor Village, South East of Efate, is registered by the First, Second, Third, Fourth and Fifth Defendants on the basis of fraud and/or mistake.

In the course of the opening of the Claimants’ case, Mr Nakou conceded that there was no fraud on the part of the First, Fourth and Fifth Defendants. The Claimants’ challenge is on mistake on the part of the Minister of Land and Director of Land Records, the Second and Third Defendants.

However, the Claimants say in their amended claim that they do not wish to hold the Second and Third Defendants responsible for the First, Fourth and Fifth Defendants’ inactions and false information supplied to the Second and Third Defendants. Mr Nakou confirmed his position when Mr Tom Joe Botleng was present in Court on 22 February 2007 on behalf of the Second and Third Defendants. As a result, counsel for the Second and Third Defendants was asked to be excused from appearing. He was so excused.

Through further discussions between both counsel and the bench, it was apparent that there was a misapprehension of what the case of the Claimants is all about against the First, Second, Third, Fourth and Fifth Defendants. There was no dispute that the Fourth Defendant, Leimas Kalsarap is the mother of the two (2) Claimants.

The Claimants admit that their mother is their custom representative and has custom authority over the family custom land and in that capacity she can negotiate a lease on the family custom land as the lessor which was on the face of the pleadings one of the concerns leading up to the claim. The claim has no cause of action. It must be dismissed. The Court makes the following Orders:

ORDERS

1. The claim in CC 170 of 2005 is hereby dismissed as there is no cause of action to justify the claim and the relief sought.
   
2. The costs (wasted) are awarded against the Claimants in favour of the First, Fourth and Fifth Defendants.
   
3. The costs are assessed and determined at VT110,000 against the Claimants.
   
4. The Claimants to pay the costs of Vatu 110,000 by instalment of VT10,000 each month until the total amount of Vatu 110,000 is fully paid.
   
5. The Claimants are to make the first instalment payment of Vatu 10,000 to the First, Fourth and Fifth Defendants by 28 February 2007.
   

Dated at Port-Vila this 22nd day of February 2007

BY THE COURT

Vincent LUNABEK
Chief Justice