Kalsakau v Kalpoi [2007] VUSC 11; Civil Case 110 of 2000 (12 March 2007)

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

Civil Case No. 110 of 2000

BETWEEN:

TERIKI MANTOI KALSAKAU
Claimant

AND:

CHARLIE KALORUS KALPOI
First Defendant

AND:

NOEL KALUATMAN
Second Defendant

AND:

PANGO HILL VIEW DEVELOPMENT COMP
Third Defendant

AND:

THE DIRECTOR OF LANDS RECORDS
Fourth Defendant

AND:

ENTREPRISE DIHN VAN THU
Firth Defendant

Mr. Kalsakau for the Claimant
Mr. Boar for First and Third Defendants
Mr. Botleng for Fourth Defendant

Ruling on strike out application

This is a further application to strike out the claim and to release the money held in the Court trust fund to the First, Second and Third Defendants. It is argued that the Claimant is not a party to the lease in question, that he has no standing to apply to set aside the lease, and that this claim is misconceived, frivolous vexatious and without legal foundation. Reliance is placed on the decision of the Court of Appeal in Kalsakau v. Jong Kook Hong & ors CAC 30 of 2003, Director of Lands Department & ors v. Kalsakau and Ors CAC 31 of 2003.

I gave an oral decision in the presence of the parties dismissing the application in which the substance of my reasons were given. I indicated that I would provide my reasons in writing. They follow.

The First and Second Defendants are the lessors under a registered lease granted in favour of the Third Defendant, a company which they control. The lease was granted by the First and Second Defendants purporting to act as custom owners of the land. There has never been any order of an Island Court or Customary Land Tribunal declaring them to be the custom owners of the land. The Claimant asserts that he is the true custom owner of the land. His claim in this proceeding is under section 100 of the Land Lease Acts for rectification of the register on the ground that the lease was granted by fraud or mistake in that persons who are not the true custom owners granted the lease. There are proceedings before the Island Court under the Island Courts Act seeking a determination of custom ownership but no determination has been made. Both Claimant and First and Second Defendants will be disputing that issue in the Island Court proceedings when they are eventually heard. Although they have been before the Island Court for many years, they have not been heard because of continuing budgetary restraints. It is not known when the Island Court will have a hearing.

On the material placed before this Court, it is clear that the Claimant’s claim to customary ownership of the land is not a frivolous one. It is at the very least arguable. If the Claimant eventually succeeds in establishing his customary ownership of the land, then his claim for rectification of the register on the basis of fraud or mistake would be a very strong one. The Court of Appeal decision in Traverso v. Chief Kas Kolou is support for that.

In this case there is a complication in that a subdivision has been created and agreements to sub-lease have also been entered into. The development has proceeded and the sublessees have taken possession and paid premiums. These sums have been held by the Court pursuant to a restraining order originally made by Justice Coventry some years ago.

The Court is not aware of whether the subleases have been registered or the state of sublessees’ knowledge about these proceedings. It may be that, in contrast to the position of First, Second and Third Defendants, the sublessees have obtained indefeasible titles. In other words, if the Claimant is successful in proving fraud or mistake by the First, Second and Third Defendants, cancellation of the leases and subleases may not follow. Rectification might be limited to the name of the lessor.

Nevertheless if the Claimant’s claim of customary ownership before the Island Court is successful, then his present claim is a strong one. Whatever the result in terms of rectification of the register, it could surely be required that any net profit accruing to the custom owner of the land from the development and subdivision should go to him.

The Court of Appeal decision cited is plainly distinguishable. In that case, the customary land owners who granted the leases were declared to be customary land owners by a decision of the Island Court, the leases had been issued and no stay of execution had been granted. That is not the position here. Those purporting to grant this lease as custom owners have never been declared to be custom owners by any competent legal authority. Accordingly the application to strike out is dismissed.

It follows that the restraining order in respect of the proceeds of subdivision must remain. If that restraining order was lifted and the proceeds disbursed to the Defendants, they would be irrecoverable. However if the Claimant is successful in this claim he would be entitled to at least the net profit from the sales, at least some percentage of the amount held by the Court. Some percentage might need in fairness to be paid to reimburse development costs and expenses.

If the parties are unable to negotiate a settlement, the only way forward in respect to this proceeding is to obtain a decision from the Island Court on custom ownership. The parties should concentrate their efforts on either negotiating settlement or jointly bringing pressure to bear to achieve an Island Court hearing. This Court is unable to advance this proceeding any further in the meantime.

There will be a further conference at 8.00 a.m. on 3rd July 2007 to see whether any further progress can be made then.

Dated AT PORT VILA on 12 March 2007

BY THE COURT

C. N. TUOHY
Judge