Kolou v Traverso [2009] VUSC 58; Civil Case 81 & 82 of 2008 (5 February 2009)

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

Civil Case No. 81 of 2008
and Civil Case No. 82 of 2008

BETWEEN:

CHIEF KAS KOLOU
Claimant

AND:

THÉRÈSE TRAVERSO
First Defendant

AND:

DIRECTOR OF LAND RECORDS
Second Defendant

AND:

THE REPUBLIC OF VANUATU
Third Defendant

Coram: Justice N. R. Dawson

Counsel: Mr. Malcolm for the Claimant
Mr. Morrison for the First Defendant
Mr. Kalsakau for the Second and Third Defendants

Date of Hearing: 14 November 2008
Date of Decision: 5 February 2009

DECISION

Issues

1. There are four issues the Court is required to address at this stage in these proceedings. They are:-
   

(a) whether the application by the Claimant to amend its Supreme Court Claims so that the Claimant is described "as representative of the customary owners" should be granted.

(b) whether the Claimant has locus standi

(c) whether the matter should proceed directly to trial on the substantive issues of fraud or mistake or whether the claim should be adjourned sine die until the customary ownership of the lands in question are resolved.

(d) if the Claimant has locus standi and claim is adjourned sine die, should any dealings with respect to the land and any development on or to the land injuncted until customary ownership and this claim are determined.

Background

1. The same Claimant appear in Civil Case No. 81 of 2008 and in Civil Case No. 82 of 2008. This decision addresses the parties in Civil Case No. 82 of 2008 but exactly the same issues apply to Civil Case No. 81 of 2008 and the decisions reached herein will also apply to Civil Case No. 81 of 2008.
   
2. The land in question was leased by the Minister for Lands (represented by the Third Defendant) to the First Defendant in a lease dated the 10th May 2006. The Minister was acting in exercise of and in accordance with the power conferred by section 8 (2) (b) of the Land Reform Act [CAP. 123] and Article 78 (I) of the Vanuatu Constitution for and on behalf of indigenous disputing custom owners of the land. The Minister acting as lessor received the sum of VT278,922 for the grant of the lease and the rental was set at VT9,761. The term of the lease was for 75 years commencing from 10th May 2006.
   
3. The Second Defendant is party to this claim as the keeper of Land Records in Vanuatu and should the Claimant ultimately be successful then the Land Records would need to be altered accordingly.
   
4. The Claimant in this matter claims to be one of the custom owners of the land in question. The Claimant submits that the lease was entered into by the parties with undue haste and speed, that the payment for the grant of the lease of VT278,922 is an entirely unrealistic figure given the Claimant’s submissions that the land is worth millions of vatu, that on or about November 2003 the First Defendant had a lease on the land which was cancelled by the Court of Appeal for fraud or mistake subsequent to which the Minister of Lands reissued the lease without the knowledge of the Claimant, and the granting of the lease effectively deprives any custom owners of the only major assets which they possess.
   
5. It is submitted by the Claimant that he should be declared the representative of the custom owners pursuant to Rule 3.2 of the Civil Procedure Rules 2002 and that would be a fair way of allowing the substantive hearing to proceed. It is submitted the Claimant has an interest in the claim and pursuant to rule 3.12 paragraph (2) the Claimant could be appointed as the representative of all the custom owners.
   

Reasons

6. The first issue is whether the Claimant should be granted leave to amend the Supreme Court Claim so that the Claimant is described "as representative of the customary owners". Rule 3.12 (2) provides that the Court may appoint a person as the representative of other persons having the same interest.
   
7. On the face of it, the Claimant in this matter appears to have a realistic chance of being declared one of the customary owners of the land in question. He has previously been heard by the Efate Island Court, this Court and the Court of Appeal with respect to earlier claims concerning these lands.
   
8. The parties have previously been before this Court in Kalou v. Traverso [2003] VUSC 59 and the Court of Appeal in Traverso v. Kalou [2003] VUCA 18. The Court of Appeal decision upheld the Supreme Court decision to cancel an earlier lease of the land in circumstances it is submitted are virtually identified to the current matter before this Court.
   
9. It is important to note that this decision is not a direction to any Land Tribunal that it should recognize the Claimant’s claim as a customary owner. Such matters are within the jurisdiction of the Land Tribunal only. However, without prejudice to the ultimate decision of this Court with respect to this matter, it does appear at this stage in the proceedings that there is a real issue to be heard, quite possibly a large amount of money is involved, and there is also the possibility of substantial prejudice to the rights of one or a number of potential customary owners of the land. It is important that this matter be heard by this Court and to enable that to happen it is appropriate to allow the Claimant to amend his claim as submitted.
   
10. For the reasons given in paragraph 9 above, it is necessary for someone to have a locus standi. However if the Claimant’s appointment as a representative of the customary owners was to allow him to argue the validity of the leases of the lands in question and then should he ultimately be unsuccessful in his claim it could be said that the interests of those persons who might ultimately be declared to be the rightful customary owners of the land had been prejudiced. It is quite possible that the persons ultimately declared to be the customary owners of the land have different facts or arguments available to them that the present claimant does not have. The Court would therefore not be able to take those facts and arguments into account if it proceeded to hear the substantive claims with only the present claimant appearing. This could result in the whole case needing to be re-litigated at a later stage as the ultimate customary owners of the land may have suffered an injustice by not being heard.
    
11. The Court also needs to consider whether it is appropriate for the Claimant to proceed with the substantive claim as a representative of the customary owners when those customary owners have had no voice or say in appointing him as their representative. These are strong factors in favour of adjourning the matter sine die.
    
12. The next issue is whether if the matter is adjourned sine die whether an injunction should be granted limiting the development of the land until customary ownership is determined. With all due respect to all the parties involved it would be unfair to all the parties to consider any such injunction until the issues numbered (a), (b) and (c) in paragraph ....... above are first resolved. Whether an injunction should be granted and in what form if it is granted should only be made once the other issues are resolved in a manner that then makes an application for an injunction an appropriate possibility.
    

Decision

13. The decision of this Court are as follows:-
    
    • (a) The Claimant’s application to amend the Supreme Court Claim so that the Claimant is described as "representative of the customary owners" is granted.
      
    • (b) The Claimant in his representative capacity of the customary owners does have locus standi so that this claim may be kept alive but not so as to proceed to trial to have the substantive issues heard.
      
    • (c) The substantive matter is adjourned sine die so that the customary land claimants can proceed with their claims in an expeditious fashion with the substantive matters being heard once the customary owners are known.
      
    • (d) The Claimant may as the representative of the customary owners make such application for an injunction concerning the land in question as he might choose to make. A hearing would then be required to determine whether any such injunction should be granted and if so on what terms once the parties have had the opportunity of being heard.
      
    • (e) Costs in the cause.
      

DATED at Port Vila, this 5th day of February, 2009.

N. R. DAWSON
Judge.