Malas v David [2008] VUSC 56; Civil Case 03 of 2008 (28 July 2008)

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

Civil Case No. 03 of 2008

BETWEEN:

AMSTRONG MALAS
Claimant

AND:

CHIEF ALBERT DAVID
First Defendant

AND:

MAKI SIMELUM
Second Defendant

AND:

JOHN REEMAN
Third Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Boar for Claimant
Mr. Laumae for 1st and 2nd Defendants

Date of Hearing: 16th May 2008
Date of Decision: 28thJuly 2008

RULING

1. This is an application to strike out the defence and counterclaim filed by the defendants. It is necessary to set out the procedural history.
   
2. The claim was originally filed in the Magistrate’s Court. It is a simple claim. The claimant is the registered proprietor of leasehold title 12/0543/022. The defendants are chiefs of the people of Melemaat village. The claimant alleges that these people are carrying on gardening on the land subject of his lease. He says he has issued them a Notice to Quit and now seeks an order for their eviction.
   
3. There are a number of specific defences pleaded including:
   • The lease was issued though fraud or mistake
   • The lease was issued contrary to the Land Leases Act, particularly s. 17(g) of the Act
   • The lease was issued under suspicious circumstances
   • The lease was issued to a minor child who does not know about the lease.
     
4. It is apparent that there are problems with all these defences:
   • It is not a defence that a lease may have been issued by fraud or mistake. They may be grounds for a claim to rectify the register by cancellation of the lease but until such a claim is successfully brought the lease and all the rights which it gives subsist.
   • A lease cannot be granted "contrary to" s. 17(g) of the Land Leases Act. That provision simply preserves certain rights which existed prior to first registration.
   • That a lease might have been issued under "suspicious circumstances" means nothing legally
   • On the evidence filed so far there is no doubt the lease was entered into by the adult claimant, not his minor son who happens to share his name.
     
5. However there is no jurisdiction to strike out a defence (as opposed to a claim). The only "quick fix" available to the claimant under the Rules is an application for summary judgment under R 9.6. Such an application has not been filed.
   
6. The counterclaim is amenable to a strike out application. The principles are well known. The jurisdiction should be exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material. The claimant’s case must be so clearly untenable that it cannot possibly succeed.
   
7. The counterclaim seeks a declaration that "the Natives of Maat" (i.e. the people of Melemaat) are the custom owners of the lands in old titles 298,3252,2314 and 365 by operation of the Constitution. It also seeks an order (presumably under s. 100(1) of the Land Lease Act) rectifying the register in respect of leasehold title 12/0543/022 by cancellation of registration. It was as a result of the filing of this counterclaim that the proceeding was transferred to the Supreme Court.
   
8. The Supreme Court has no jurisdiction to make declarations as to the custom ownership of land. This jurisdiction is now vested in Customary Land Tribunals under the Customary Land Tribunal Act (Cap. 271).
   
9. However the claim to custom ownership of the land by the inhabitants of Melemaat is the foundation of the defendant’s claim that the lease (which names Mele Trustees Ltd as lessor on behalf of a different custom owner) was registered though fraud or mistake.
   
10. The claim of custom ownership is ingenious because the inhabitants of Melemaat are not the indigenous inhabitants of the area in which they now reside. They are the descendants of people from Ambrym who were shifted to their present location during the early part of the 20th century following volcanic eruptions on their home island.
    
11. Their counterclaim alleges that they purchased the land in the old titles detailed above (which cover the land subject to the lease) from a French planter. They also claim that on about 17 November 1978, prior to Independence, they performed a custom ceremony and made custom payment for the land to the Paramount Chief and people of Mele Village. They claim that they thus acquired the land in custom.
    
12. The problem for the defendants is that the land now subject to the leasehold title was the subject of post Independence litigation to establish custom ownership. This litigation was between family Malas and family Songoriki, both original Mele families. There was a judgment of the Efate Island Court in 1985 in favour of family Songoriki. It was appealed by family Malas to the Supreme Court in Land Appeal Case No. 1/85. On 8 October 1986, the then Chief Justice issued a lengthy judgment declaring family Songoriki as the custom owners of the land. That was a final judgment. The defendants were not a party to the original Island Court judgment nor to the appeal to the Supreme Court. There is no avenue open to them to appeal or challenge that judgment.
    
13. Therefore there is no legal avenue open to them to challenge the final decision as to custom ownership in favour of family Songoriki. That family through Mele Trustees Ltd has granted a lease to the claimant. The title which the claimant acquired is indefeasible under the Land Leases Act. The people of Melemaat, whom the defendants represent, have no possibility of obtaining cancellation of the lease. Therefore their counterclaim is struck out.
    
14. The claim remains to be resolved. The defendants will have to file an amended defence. They may still have a viable defence to the claim under s.17(g) of the Land Leases Act even though the owner of a leasehold title is prima facie entitled to possession. It will have to be properly pleaded.
    
15. These are the formal orders of the Court:
    
    1. The defendants’ counterclaim is struck out.
    2. The defendants must file and serve an amended defence by 15 August 2008.
       

Dated at Port Vila, this 28th day of July, 2008

BY THE COURT

C.N. TUOHY
Judge