Toro v Ifira Trustees Ltd [2008] VUSC 57; Civil Case 66 of 2007 (28 July 2008)

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

Civil Case No. 66 of 2007

BETWEEN:

FAMILY STEPHEN TORO
Claimant

AND:

IFIRA TRUSTEES LIMITED
Defendant

Coram: Justice C. N. Tuohy

Counsels: Mrs. Mary Grace Nari for the Claimants
No appearance for the Defendant

Date of Hearing: 28 July 2008
Date of Decision: 28 July 2008

ORAL JUDGMENT

The proceeding was set down for trial today 28 July 2008 and notice to that effect was given to the parties by Notice of Trial dated 17th April 2008. Only the claimant has appeared at the trial. The non-appearance of the defendant followed the same pattern as has been the case throughout the proceeding. The defendant has generally failed to appear at conferences or to take part in the proceeding. That is the choice of the defendant. Under Rule 12.9 (1) of the Civil Procedure Rules No. 49 of 2002 if the Defendant does not attend when the trial starts the Court has a number of options. It may adjourn the proceeding to another date. It may give judgment for the claimant or the claimant may with the permission of the Court call evidence that it is entitled to judgment against the defendant.

In this case, the Court has chosen to adopt the course permitted under rule 12.9 (1) (c), that is, the claimant has presented its evidence to establish that it is entitled to judgment against the defendant.

The evidence presented consisted of the sworn statements already filed, two from Tony Toro, one from Amos Korikalo, one from Peter Motoutorua, and one from Naloa Saurei. The claim is to recover land premium and land rentals paid to the defendant by the lessee from time to time of leasehold title 12/0633/033. The amount of the claim is set out in the major sworn statement, that is the sworn statement of Tony Toro dated 12 October 2007. The amounts claimed have been taken from the face of the lease. That is a land premium of VT1,430,000 and land rents for period 1989 to June 1998 at VT375,000 per annum and then from the period July 1998 to 2006 at VT431,250 per annum. The total of the claim is VT9,061,250. The basis of the claim is that these amounts were paid to the defendant company as trustee for the custom owners of the land. There is no doubt of that aspect in my mind.

Ifira Trustees Limited cannot of course itself be a custom owner. Under the Constitution of Vanuatu only indigenous custom owners may own land in perpetual ownership in Vanuatu. A company such as Ifira Trustees Limited must be a trustee for the custom owner in a situation where the company purports to enter into leases. In fact the lease itself records that the company is acting as
"trustee for and representative of the Ifira Island Community".

In fact, while the claimants are part of the Ifira Island community, it is not the Ifira Island community as a whole which has been declared the custom owner of this land. This leasehold title is part the custom land known as "Laviskoni".

There has been a binding decision of the Ifira Land Tribunal declaring the custom ownership of Laviskoni land. That is attached to the sworn statement of Tony Toro as exhibit "A". It is decision number "ILT 3/2005". The land which the decision affects is outlined in bold black pen on a map attached to the decision. This leasehold title is within the boundary of that land.

The judgment records that the "stret custom ona blo graon ia" is family Toro Kaltatanu. That is the claimant’s family. The evidence shows that the claimant family has tried to recover from the defendant the amount of land premium and land rentals which the defendant has received in respect of this lease. The efforts have not met with any success and indeed with little cooperation. It is trite law that a trustee must account to the beneficiaries of a trust for sums which it has received on their behalf. It the trustee does not do so the beneficiaries can come to the Court and obtain a judgment for the amount which should have been paid to them. This is what has happened in this case.

I am satisfied that there should be judgment for the claimant family in the sum of VT9,061,250 and there will be judgment for that amount. In addition the defendant must pay the claimant family’s legal costs in an amount to be agreed or fixed by the Court. It is only just that the claimant family should recover legal costs that it had to spend in order to obtain a judgment for money which it is owed.

DATED at Port Vila, this 28th day of July, 2008.

C. N. TUOHY

Judge.