Korikalo v Wotarua Development Company Ltd [2007] VUSC 8; Civil Case 152 of 2006 (24 January 2007)

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

Civil Case No.152 of 2006

BETWEEN:

LEISSING KORIKALO
Claimant

AND:

THE WOTARUA DEVELOPMENT COMPANY LIMITED
First Defendant

AND:

BAGGOA KALTONGA
Second Defendant

AND:

CHRISTIAN KALTABANG
Third Defendant

AND:

WAKARI SOPE FAMILY
Fourth Defendant

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
Fifth Defendant

AND:

THE DIRECTOR OF LAND RECORDS
Sixth Defendant

AND:

DREAM COVE LIMITED
Seventh Defendant

AND:

ALBERT SABLAN
Eighth Defendant

AND:

THE CABINET TOPOGRAPHIC FONCIER LTD.
Ninth Defendant

AND:

MORRIS LAI
Tenth Defendant

Coram: Justice H. Bulu

Counsels: Mr. Hilary Toa for the Claimant
Mr. John Malcolm for the 1st, 2nd, 3rd, 4th, 7th, 8th and 9th Defendants

Date of Hearing: 19 September 2006
Date of Decision: 24 January 2007

RESERVED DECISION ON INTERLOCUTORY APPLICATION

1. On 28 August 2006 Leising Korikalo as representative of the Pango Toutak’s clan filed her claim with the Supreme Court claiming:-
   

(a) That the First Defendant (Wotarua Development Company Limited), Bakoa Kaltonga, Christian Kaltabang, Wakari Sope family and Dream Cove Limited sometime on 24 November 2004 made false representations to the Government (Minister) to sign two leases No. 12/0844/156 and 12/0844/101 and having them registered knowing full well that they are not the only declared custom owners of the land in question.

(b) She is also custom owner of the same property pursuant to the Efate Island Court decision.

(c) She was not consulted nor her consent obtained for the grant of the two leases over the said property.

(d) The registration of the leases was unlawful.

(e) Work has began on the two leases.

(f) She has suffered damages and loss and claims VT38,342,200.

2. On 6 September 2006 Ms. Korikalo made an urgent ex parte application seeking certain restraining orders.
   
3. The Urgent ex parte application was granted on that same day in the following terms:-
   

"1. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants either by themselves, their agents, servants, workers and/or relatives are restrained from entering, working and/or developing the said custom lands now covered by Dream Cove Rural/Residential Land Lease Title Nos. 12/0844/156 and 12/0844/101 respectively.

2. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants either by themselves, their agents, servants, workers and/or relatives are restrained from destroying, defacing and/or mutilating the natural resources and flora and fauna in the said custom lands now covered by Dream Cove Rural/Residential Land Lease Title Nos. 12/0844/156 and 12/0844/101 respectively.

3. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants either by themselves, their agents, servants, workers and/or relatives are restrained from selling, transferring or mortgaging and/or registering the said custom lands now covered by Dream Cove Rural/Residential Land Lease Title Nos. 12/0844/156 and 12/0844/101 respectively to a Third Party.

4. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants either by themselves, their agents, servants, workers and/or relatives are restrained from venturing near the said custom boundary of custom lands now known as Land Plots Nos. 116 and 117, and those covered by Dream Cove Rural/Residential Land Lease Title Nos. 12/0844/156 and 12/0844/101 to a distance of one hundred (100m) metres.

5. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants either by themselves, their agents, servants, workers and/or relatives are restrained from threatening, intimidating, verbally abusing, assaulting the Applicant and her immediate family, her relatives, her agents, servants and/or workers in any way.

6. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants either by themselves, their agents, servants, workers and/or relatives are restrained from trespassing, harvesting and/or removing and taking away any rocks, soil, flora, fauna, crops, fish and all other resource natural and non natural material from such custom lands now known as Land Plots Nos. 116 and 117, and those covered by Dream Cove Rural/Residential Land Lease Title Nos. 12/0844/156 and 12/0844/101."

4. On 19 September 2006 I heard Mr. Malcolm on his application to have the interim orders of 6 September set aside and Mr. Toa in opposition to the application. I have also read documents submitted by Mr. Malcolm in support of his application on behalf of his clients.
   
5. Mr. Malcolm contended that the Ex parte Orders should be dismissed because:-
   

(a) It is unethical to issue ex parte proceedings which are not necessary. Even if ex parte proceedings issue the Claimants ought to have telephoned or advised of the hearing date. This they did not do.

(b) Having been issued ex parte orders there was an obligation on the Applicant to be scrupulously honest in disclosure. This the Applicant did not do. She did not even informed the Court that she has appealed the Decision of the Island Court.

(c) Leases have been issued and are valid leases. If the Claimant succeed in her appeal she will be entitled at best to be substituted as lessor and obtain the benefits of the lease.

(d)

6. Mr. Malcolm continued that the entire matter ought to be adjourned until the appeal has been determined.
   
7. Mr. Toa on behalf of the Claimant contended that the ex parte orders should remain because:-
   

(a) 4 different groups of people were declared custom owners of the land by the Efate Island Court;

(b) Efate Island Court did not delineate the boundaries of each group. Each group has equal right to the land.

(c) The Defendants have gone beyond accepted boundaries.

(d) The Claimant has given an undertaking to the amount of VT500,000 for damages if the Court finds against her.

8. I have considered the submissions, the evidence, and the law and I am satisfied that:-
   

(a) An appeal has been lodged by the Claimant in this matter against the decision of the Island Court.

(b) That appeal is yet to be determined.

(c) There is substantial development taking place on the leased property concerned.

(d) Put the Government aside, the Defendants have a valid lease over the property and the law requires that they have a quite enjoyment of their lease.

(e) The lessors (Applicants in this hearing) are also persons whom the Island Court has declared as custom land owners over the same area of land.

(f) The undertaking as to damages by the Claimant in the amount of VT500,000 is not adequate. The claim is to the amount of VT38,342,200 reflecting the value of the development on the property so far.

(g) The Applicants (the Defendants) would be seriously disadvantaged if the order is not made.

9. As a consequence of those findings, the formal orders of the Court are:-
   

(a) The Ex parte Orders made on 6 September, 2006 are struck out.

(b) The hearing of this matter is suspended until the determination of the appeal.

DATED at Port Vila, this 24th day of January, 2007.

H. BULU
Judge.