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

Civil Case No. 234 of 2006

BETWEEN:

FITTLERS INVESTMENTS LTD
Claimant

AND:

DAVID ABEL, 
PHILIP THOMPSON,
HENRY TAIFORD,
STEPHEN WILLIAM,
PIERRE SELWIN & 
TOARA S. POPONGI
Defendants

Coram: Justice C.N. Tuohy

Counsel: Mr. Ozols for Claimant
Mr. Willie Daniel for Defendants

Date of Hearing: 14th March 2008
Date of Decision: 14th March 2008

ORAL JUDGMENT

1.	This is a claim by Fittlers Investment Ltd against David Abel and others. The claim is based on the tort of trespass. The Claimant Fittlers claims that David Abel and others committed that tort of trespass. As a result the Claimant asks for a declaration that it is entitled to possession of the land in question in this case. It also asks for an injunction restraining the defendants from trespassing upon it and it asks for damages in the sum of VT500,000. 

2.	The claim relates to the land in leasehold title No. 11/OD24/041. This is the land next to the market house in Port Vila which is at the present time surrounded by a fence. 

3.	The facts in relation to the claim are not in any dispute. They can be shortly stated. The registered proprietor of the leasehold title is Ifira Trustees Ltd. Ifira Trustees Ltd has granted a sublease of the land to Fittlers. That sublease has been filed in the Lands Office for registration but registration has not taken place. Fittlers is in actual possession of the land or at least was on the relevant date in this case which was 29th May 2006. On that day the Defendants acknowledge that they entered the land and removed a fence which had been put up on it. They give a reason for doing that in their defence but the reason is not material in this case. 

4.	So the Claimant Fittlers was in possession of the land on the relevant date pursuant to an unregistered sublease granted by the registered lessee Ifira Trustees Ltd. The Defendant has not suggested any claim for possession recognized by the law in them. So they have not alleged in this proceeding or in this claim that they themselves are entitled to the possession of the land. 

5.	The Defendant’s case like the Claimant’s case can be shortly stated. The Defendants relied on the fact that the Claimant’s sublease has not been registered. Mr. Daniel on behalf of the Defendants argued that as a result of Section 14 of the Land Leases Act an unregistered lessee or sub-lessee cannot maintain an action for trespass. He also makes two subsidiary arguments as follow. The sublease which is actually annexed to a sworn statement made by the Defendant David Abel provides in clause 1 that the sub-lessee shall pay to the sub- lessor the sum of VT45,000,000 within 60 days of the date hereof for the grant of the sublease failing which this sublease shall be null and void. Mr. Daniel submits that there is no evidence that the VT45,000,000 premium for the sublease has been paid and therefore he submits that Fittlers have not proven that they have a valid sublease. He challenges proof of the VT500,000 claim for damages by Fittlers. He points out that there is no detailed evidence at all to support that claim other than a bald statement by Mr. Giblin of Fittlers that they have incurred those costs as a result of the removal of the fence. 

6.	I turn to the primary issue. Section 14 of the Land Leases Act provides:

"Subject to the provisions of this Act the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease together with all implied and expressed rights belonging thereto and subject to all implied and expressed agreements liability and incidents of the lease".

That really says no more than that what is called the legal estate in the lease vests in the lessee when the lease is registered and that lease, that legal estate, has certainly vested in Ifira Trustees Ltd, their lease having been registered. 

7.	Perhaps more important to the argument that Mr. Daniel is making is Section 22 of the Land Leases Act, which states:

" (1) No registered lease or mortgage shall be capable of being created or disposed of except in accordance with this Act. Every attempt to create or dispose of a registered lease or mortgage or to create, extinguish, transfer, vary or affect, any right or interest in a registered lease or mortgage otherwise than in accordance with this Act shall be ineffectual to create, or dispose of a registered lease or mortgage or to create, extinguish, transfer, vary or affect any right or interest in the lease or mortgage". 

The word lease effectively includes a sublease for the purposes of this discussion. However Section 22 also says in subsection 5: 

 "(5) Nothing in this section shall be construed so as to prevent any unregistered instrument from operating as a contract". 

8.	What that means is that the sublease between Ifira Trustees Limited and Fittlers is perfectly valid and operates as a contract between them. These provisions in the Land Leases Act are common in legislation under which a Torrens system of land registration is set up. The system of registration of leases in Vanuatu under the Land Leases Act is very similar to and in principle the same as the systems of land registration set up in New Zealand and most if not all of the Australian states and territories and in other countries as well. The provisions that I have just referred to are also included in the legislation of all those other countries and there is a considerable amount of case law in those other countries about those provisions, although there is no particular case law that I have been able to find in Vanuatu on the point raised by Mr. Daniel. However these are technical legal issues which may not be clear to the persons who have not been trained in land law and in particular the Torrens system of land title which operates in Vanuatu and these other places. 

9.	Nevertheless the law is clear: even though what is called the legal estate in the land passes to a lessee or a sub lessee only on registration of the lease or the sublease, what is called the equitable estate in the land passes immediately a sublease or a lease is signed before registration. So the lessee or the sub- lessee acquires what is called an equitable estate in the land. 

10.	Such a right undoubtedly gives the unregistered lessee or sub-lessee in possession the right to take action for trespass or any other right held by the possessor of land. There are cases from different jurisdictions which establish that without doubt. I want to read an extract from a New Zealand case called De Luxe Confectionary Ltd v. Warrington [1958] NZLR 272. In that case the Court referred to an even earlier case which is very similar to this one. It is called the Rewiri v. Eivers [1917] NZLR 479. 

11.	In that case the respondent was in possession of land subject to the Land Transfer Act under an unregistered lease. The Judge said that that person in possession of the land under an unregistered lease was in possession with a complete title in equity. His equitable right was a right to the possession of the land during the term of the lease, and was a right which prevailed under the rules of equity notwithstanding the fact that the lease and the transfers had not been registered. He had, by virtue of this complete equitable right, the right to sue for any wrongful injury sustained by him as fully as if he was holding the property under a registered instrument. Neither the lease nor the transfers of the lease while they remained unregistered passed any legal estate in the land, but they conferred upon the respondent an unquestionable right to maintain an action against a wrongdoer. 

12.	That is enough in itself to answer the point raised by Mr. Daniel. It is simply not correct in law. A person in possession of land under an unregistered lease or sublease it entitled to maintain an action for trespass against someone who without right comes onto the land. 

13.	In actual fact to maintain an action for trespass it is not even necessary to have an unregistered lease or a sublease. It is sufficient to have de facto possession of the land even if that is wrongful. I am reading now from an old and famous law book on the law of torts, Salmond, the 21st edition, and I am reading from the section under the law of trespass, and that says:

"Jus Tertii no defence

The mere de facto and wrongful possession of land is a valid title of right against all persons who cannot show a better title in themselves, and is therefore sufficient to support an action of trespass against such persons…… the possession of land without any legal title is enough. In other words no defendant in an action of trespass can plea the jus tertii- the right of possession outstanding in some third person - as against the fact of the possession in the plaintiff". 

14.	The sum of what that means in the circumstances of this case is that the defendants, having no right at all to possession themselves and, prior to their entry onto the land no possession of the land, cannot claim against Fittlers, who did have possession of the land, that someone else, Ifira Trustees Ltd, has a right of possession. So the mere fact of possession by Fittlers is enough to give them the right to bring a claim of trespass against anyone else who attempts to or comes onto the land even if Fittlers has no legal right to be there. In fact Fittlers did have a legal right to be there, they have a legal right under their sub-lease and of course the lessee, Ifira Trustees Ltd, has confirmed in a sworn statement the fact of the sub-lease and the fact that they support the possession of Fittlers. So I reject the submission made by Mr. Daniel because it is wrong in law. 

15.	Given what I have said it would make no difference whether the VT45,000,000 had been paid or not. Even if it had not been and the sub lease was void, Fittlers would still be able to maintain an action against Mr. Abel or anyone else who came on the land which was in the actual possession of Fittlers except the rightful owner. 

16.	However regarding that VT45,000,000 point, in my view it is not necessary for Fittlers to specifically provide evidence that that has been paid. Fittlers have produced evidence that they are in possession pursuant to a sub-lease. Ifira Trustees Ltd has supported that evidence and said in effect that, as far as they are concerned, Fittler’s possession is lawful. It is up to someone who claims that their possession is not pursuant to any lawful right to prove that in those circumstances. And furthermore this point was never pleaded. 

17.	So I am satisfied that Fittlers has the right to a declaration that on the 29th May 2006 it was in lawful possession of the land in question and it has the right to damages if proven and an injunction restraining the defendants, who acknowledged going in and removing the fence, from further entry upon that land. 

18.	It has a right to any damages which have been proven. In an action for trespass a Claimant is entitled to nominal damages of VT100 without any proof of damage. However if it wants anymore than nominal damages, anymore than a nominal VT100, it has to prove it. In this case Mr. Daniel’s submission is entirely correct, there is no sufficient proof of damages for the Court to make an award.

19.	Mr. Giblin made 2 sworn statements. In the first one dated 30th May 2006, he said that at approximately 9:00 am on Monday 29th May 2006 a group of men arrived at the land, that they were led by the defendant David Abel who referred to himself as co-ordinator and the other defendants were involved. He went on to say that despite the presence of security and police the defendants with their supporters proceeded to tear down the fence. The fences were cut with wire cutters and they are useless and requiring replacement. And then in his further statement he said: "I further confirm that the damage suffered for the destruction of the fence alone exceeds VT500,000". 

20.	That is the sum total of the evidence relating to the damage to the fence. It is not good enough evidence for the Court to award damages. The Court would need at a minimum a description of the type of fencing, the length of fencing, the cost per metre of the fencing, the cost per metre of construction or erection, I should say. None of that has been provided, so the Court is not prepared to grant the Claimant any more than a nominal VT100 damages which anyone who makes out a claim for trespass is entitled to without proof of actual loss.

21.	At the end of my judgment Mr. Ozols applied for costs in favour of Fittlers. The normal rule in litigation is that costs follow the event. That is the lawyer’s way of saying that the parties who are successful normally get an award of costs in their favour. I see no reason to depart from that normal rule. I do not propose to fix an amount for costs now, that should be left for negotiations between the parties and if they cannot agree on an amount then the usual course is to ask the Court to fix costs. 

22.	So there will be an order for costs in the favour of the Claimant to be agreed or fixed by the Court.

Dated at Port Vila, this 14th day of March, 2008

BY THE COURT

C.N. TUOHY
Judge