Japhet v Mata [2010] VUSC 17; Civil Case 187 of 2007 (22 March 2010)

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

Civil Case No. 187 of 2007

BETWEEN:

ROGER JAPHET
Claimant

AND:

GEORGE KIRBY FANDANU MATA
First Defendant

AND:

JEAN MARC PIERRE
Second Defendant

Claimant: Mr. Boar
Defendants: Mr. Gilu

JUDGMENT

1. This is an application for judicial review in which the Claimant seeks an order to quash the decision said to be contained in a letter dated 14th September 2007. The letter which is written by the First Defendant for and on behalf of the second Defendant is addressed to the Claimant’s agent. The Claimant also seeks a mandatory order directing the second Defendant to register the Claimant’s lease title No: 12/0431/045.

2. The facts which forms the relevant back ground to this application are agreed by the parties as follows:

"(1) The Claimant applied to the Land Management and Planning Committee (LMPC) for a negotiator’s certificate in respect of Land Lease Title No. 12/0431/045 on 7 March 2006.

(2) On 7 April 2006 LMPC differed (sic) the Claimant’s lease and asking the Claimant to provide a development plan of the lease title he is seeking.

(3) On 22 May 2006, the Defendants received a custom land owner declaration from council of Chief of Takara Village declaring that Chief Manukat E. Joseph and Chief Faleawia Saki are the custom owners of the land.

(4) The Claimant was issued with a Negotiator Certificate on 26 June 2006.

(5) Lease Title No.12/0431/045 ("the lease") was prepared and was executed by the Claimant and the two custom landowners on 6 December 2006.

(6) On 26 February 2007 the lease was lodged for registration. On 2 May 2007 the Claimant agent wrote to the Defendants asking the Department of Lands to register lease title No. 12/0431/045 raising concerns that the Lease was not registered because of concern raised by the Matarisu Community.

(7) On 14 September 2007 the Defendants advised the Claimant’s consultant that the Second Defendant will carry out a site inspection on the land concerned, sort out the confusion of Chief Saki Falewia conflicting letters and find out reasons for 2 custom owner s instead of 3 custom owners before a decision will be made.

(8) On 30 October 2007 an inspection team carried out a site inspection on the land in question and made their report available to the Second Defendant.

(9) On 19 March 2009 Chief Ernest Manukat Joseph advised the Second Defendant that he withdraws his signature from the Negotiator Certificate of Roger Japheth."

3. The single "disputed fact" in the case is: whether the letter of 14th December 2007 contains a reviewable decision which, in turn, gives rise to three agreed issues for determination:

(a) Whether the letter of 14th September 2007 amounts to a decision?

(b) Whether the letter of 14th September 2007 is ultra vires?

(c) Whether the action of the Defendant was unreasonable?

4. The dual basis on which the Claimant challenges the letter is that he claims that the actions of the Defendant is ultra vires and unreasonable in all the circumstances. More particularly, the Claimant disavows any power in the second defendant under the Land Leases Act [cap 163] and Land Lease General Rules No.9 of 1986, to refuse to register the Claimant’s lease and to make further enquires regarding the lease when the Claimant had fulfilled all the requirements necessary to have the lease registered.

5. The defendants claim a power to refuse registration in order to make further enquiries on the Claimant’s lease.

6. I have before me 4 relevant sworn statements from the parties as follows:

(1) a sworn statement of the Claimant Roger Japhet dated 22nd November 2007;

(2) a sworn statement of the First Defendant George Kirby dated 31st March 2009;

(3) a sworn statement of the second Defendant Jean-Marc Pierre also dated 31st March 2009; and

(4) a further sworn statement of the Second Defendant dated 11 May 2009.

7. Neither counsels sought to cross-examine the deponents preferring instead to rely on the facts as agreed.

8. I have also received comprehensive written and oral submissions from counsels representing the parties which I have read and carefully considered in the course of writing this judgment and which I found of assistance.

9. The first issue agreed and identified by the parties is: Whether the letter of 14th September 2007 amounts to a decision? The body of the letter reads:

"Dear Sir,

Re: ROGER JAPHET LEASE TITLE 12/0431/045

Thank you for your letter dated 10th September 2007 to the Director of Lands, Survey & Records and attention my name regarding the above subject.

Mr. Tarosa, my previous letter to you did not determine a decision just as yet but foresees what this office intends to do.

We also notice you claim some members of Matarisu community are the main cause of delaying registration and removal of the file From Land Records. The Director of Lands can or may only delay registration under section 4 (c) Subsidiary Legislation, Land Lease General Rules [CAP 163] not on the interest of anyone but the complication he may come across regarding the instrument before registration.

There was apparent conflicting interest from one of the two custom owner subsidiary to that and furthermore the ownership issues.

The Director has advance the case recently by allowing this office to:

1. Carryout a site visit (inspection)

2. Compromise the three custom owners in the affidavits of 1991 Efate Island Court;

3. Sort out the confusion of Chief Saki Faleawia conflicting letters and

4. Find out the reasons of two custom owners instead of three

Only after we complete the above activities that the Director of Lands, Survey & Records may in a better position to decide the outcome. This land has been subject of registered lease and needs to be handled with care.

I trust you will bear with us and not generally assume the senses of nepotism practices anyone in the general public would conclude.

Truly yours

George Kerby Fandanu MATA

Acting Senior Land Officer (Enforcement)

For the Director of Lands"

10. The Claimant’s submission is that notwithstanding the tenor of the second and penultimate paragraphs of the letter, it constituted in effect a decision of the defendants, at the very least, to delay or further defer registration of the Claimant’s lease which had been lodged through his agent on 26th February 2007.

11. The defendants equally forceful submission is that the effect and purpose of the letter is clear on its face in so far as, it set out what the Defendant intended to do in clarifying various "complications", "conflicting interest", and "ownership issues" that had arisen since the lodgment of the claimant’s lease for registration and, after completing such enquiries as he considered necessary, then and only then, would the second defendant, "be in a better position to decide the out come" presumably, of the claimant’s application for registration of his leases.

12. In other words, no decision had yet been made to refuse registration of the claimant’s lease, and therefore the application for judicial review was both premature and misconceived. With all due regard to the submission, I cannot agree.

13. Rule 17.2 of the Civil Procedure Rules defines a "decision" for the purposes of an application for judicial review in the following terms: "......means a decision, an action, or failure to act in relation to the exercise of a public function or a non-public function."

14. The third paragraph of the 14th September 2007 letter contains the following revealing statement which reads:

"Director of Lands can or may only delay registration under section 4 (c) Subsidiary Legislation, Land Lease General Rules [cap 163] not on the interest of anyone but the complication he may come across regarding the instrument before registration".

15. That statement in my view, contains a clear albeit implicit "decision" by the Director of Lands "to delay registration" of the Claimant’s lease. Whilst not amounting to an outright "refusal" to register, nevertheless, it is a "decision" sufficient to support an application for judicial review.

16. Further support that a reviewable "decision" had been made by the Second Defendant in relation to the Claimant’s application for registration may be found in paragraphs 17 and 25 of his statement sworn of 31st March 2009 where he states (in referring to the Claimant’s lease):

"17. ... the lease was withheld for registration pending enquiry............" and

"25. ... I delayed the registration of the lease so that further explanation or information is provided in relation to the said lease title."

17. Plainly on the Second Defendant’s own sworn admissions, he had made a "decision" to withhold and delay registration of the Claimant’s lease. So much then for the first issue which is determined in the claimant’s favour.

18. Turning to the second agreed issue, defence counsel when pressed as to what was meant by the expression "to advance the matter" in paragraph 2 of his written submissions, drew the Court’s attention to the provisions of section 8 (c) of the Land Leases Act [CAP. 163] and Rule 4 (2) of the Land Lease General Rules No. 9 of 1986 as providing the legal justification or basis for the letter of 14th September 2007.

19. Section 8 of the Land Leases Act [CAP. 163] provides:-

"8. The Director may exercise the following powers in addition to any other powers conferred on him by this Act-

(a) he may require any person to produce any instrument or other document or plan relating to the registered interest and that person shall produce the same;

(b) he may summon any person to appear and give any information or explanation respecting a registered interest, and such person shall appear and give such information or explanation;

(c) he may refuse to proceed with any registration if any instrument, or other document, or plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;

(d) he may administer oaths or take a declaration in lieu thereof, and may require that any proceeding, information or explanation affecting registration shall be verified on oath or by declaration;

(e) he may order that the costs, charges and expenses incurred by him or by any person in connection with any investigation or hearing held by him for the purposes of this Act shall be borne and paid by such persons and in such proportions as he may think fit;

(f) he may, at his discretion, dispense, with the production of any signature, or the supply of any information or any advertisement or notice required by this Act; and

(g) he may state any case or reserve any question for consideration by the Court."

20. Rule 4 (2) of the Land Leases General Rules No. 9 of 1986 sets out:-

"4. (2) It shall be lawful for the Director to refuse to accept any application for registration of any matter –

(a) when the fee assessed by the Director to be payable in accordance with these Rules in respect thereof has not been paid;

(b) if the relevant instrument and documents do not accampany the application, unless such instruments, or documents are proved to the Director’s satisfaction to be already in the Land Records Office;

(c) if the application, instrument or document contains any apparent material defect or omission;

(d) if any instrument is not duly stamped as required by the Stamp Duties Act, [CAP. 68] or any amendment or re-enactment thereof;

(e) in any case falling within the scope of rule 3 (1) or 3 (2); or

(f) where the application or any instrument is not in due form or duly attested."

21. Although not relevant for present purposes, in the interests of completeness Rules 3 (1) and 3 (2) of the Land Leases General Rules provides:

"3 (1) The Director may refuse to register any instrument which because of erasures or alterations or otherwise howsoever he considers may not be in the condition in which it was originally executed by the parties thereto.

(2) If any instrument at the time of its presentation for registration contains any amendment, alteration or correction, which has not been initialed in the margin by the person or persons executing it and by the authorized officer or attesting witness or witnesses, the Director may refuse to accept it for registration."

22. I do not propose to deal with the above Rules in any detail as State Counsel properly conceded at the hearing that the Rules were inapplicable to the circumstances of the case as the Director had accepted the application for registration of the claimant’s lease when it was lodged in February 2007.

23. State counsel submits that the Director’s letter of 14 September 2007 is clearly sanctioned by paragraph (c) of section 8 which empowers the Director of Lands "to refuse to proceed with any registration if any ... information or explanation required to be produced or given is withheld ..." and, in the Claimant’s case, counsel submits that there was the existence of complaints raised by the Matarisu community, (when? is nowhere disclosed) and, the fact that one of the custom land owners who had negotiated with the Claimant for the lease claimed that there was a dispute over the ownership of the land and another, had subsequently withdrawn his signature to the Certificate of Negotiator that had been granted to the Claimant, in a letter written to the Director.

24. In those circumstances, State counsel submits, it was entirely reasonable, lawful, and prudent for the Director to refuse registration of the Claimant’s lease until those matters had been fully investigated and all relevant information considered.

25. Claimant’s counsel rather inelegantly submits however that section 8 and Rules 3 and 4 (op. cit) are not unlimited in their ambit and scope nor do they permit the Director of Lands "to venture into their own fantasies to take into account the views from persons who have no interest in the lease." and/or harping back to make enquiries on a registrable document and taking irrelevant matters into account in refusing to promptly register the Claimant’s lease when it was lodged for registration. In counsel’s view the Director’s powers under the Rules was "limited to ensuring that the registrable interest is in proper form and in order and that the relevant fees have been paid."

26. Counsel also submits that "the Claimant’s registrable lease had gone pass section 8 (and was) awaiting registration" under the Rules, and "by making enquiries at the stage where the lease was pending registration, the Director lacks jurisdiction and indeed there is no legislative power authorizing the Director to make such enquiries at that stage."

27. In Ifira Trustees Limited v. Kalsakau and Others [2006] VUCA23 the Court of Appeal in considering the nature and ambit of the power vested in the Minister under section 8 of the Land Reform Act [CAP. 123] said:

"When Parliament grants a power to make decisions, the decision maker must undertake the task conscientiously and independently weighing all matters which are relevant and ignoring those which are irrelevant and the decision maker must faithfully apply fair and proper process and procedures.

Section 8, as an example, is not a licence for a Minister to make any decision that he likes about the case and control of disputed land pending the resolution of that dispute. A Minister exercising this power can only reach a proper and lawful conclusion after he has weighed and assessed all matters which are relevant."

28. In similar vein. Section 8 of the Land Leases Act [cap 163] does not give the Director of Lands a licence to refuse registration of a lease as he pleases. Pursuant to Section 8 (c) of the Land Leases Act [cap 135] the Director of Lands has power to refuse to proceed with any registration in the limited circumstances enumerated namely (1) where a document or information required to be produced or given is withheld or (2) where any act required to be performed under the Act is not performed.

29. In this regard, the Director’s letter of 14th September 2007 nowhere requires the giving of any information or the production of any document by the claimant or his agent, nor were they specifically required to perform any act under the Act. Indeed the letter clearly discloses that the legal and factual basis on which the Director had withheld or delayed registration of the lease was ".....under Section 4 (c) Subsidiary Legislation, Land Lease General Rules [cap 163]" on the basis of "......the complication he may come across regarding the instrument before registration."

30. In his sworn statement (dated 31st March 2009) the second defendant additionally states: "..........I delayed the registration of the lease so that further explanation or information is provided in relation to said lease title. A site inspection was made and the report identified a lot of things that were not disclosed by the claimant when he applied to lease the land." Noteworthy by its absence however, is any suggestion that a copy of the site inspection report had been provided to the claimant or his agent with a requisition seeking further clarification or information on the various findings and ‘non-disclosures’ identified in the report. There is also no mention of Section 8 of the Land Leases Act [cap 163] in either the Director’s letter or his sworn statements.

31. It is undisputed that the claimant had done everything that he was required to do, to obtain the registration of the lease including obtaining all the necessary approvals certificates, and consents and paying the stamp duties and necessary fees. (see: Family Kalsakau v. Chief Mantoi Kalsakau [2006] VUSC 72 generally with regard to the various procedural steps required to be undertaken to obtain a lease over customary land with particular emphasis on the "normal time" taken from obtaining a Negotiator’s Certificate to the Ministerial approval of a lease which is "between 4 weeks to 3 months")

32. In the present case the claimant’s agent lodged the lease for registration on 26 February 2007 and as at the 14 September 2007 (i.e. 7 months later) the lease had still not been registered and the claimant or his agent had not been asked to provide any information or explanation regarding the lease nor were they required to do anything under the Land Leases Act [cap 163].On the contrary, the Director’s letter of 14 September 2007 makes it clear that the Director had decided on his own accord, to carry out enquiries and investigations into the "complications" regarding the claimant’s lease which had come to his attention and, only after the enquiries and investigations were completed, then a final decision would be made whether or not to register the claimant’s lease.

33. The initial concerns regarding the claimant’s lease were apparently expressed by the community of Matarisu Village at North Efate who claimed to have an (unidentified) interest in the land in question. When? and by whom? the concern was brought to the second defendant’s attention remains unclear, but, by letter dated 2 May 2007 to the second defendant, the claimant’s agent had attempted to clarify the concern, and again, in a letter dated 20 June 2007.

34. The first written record of the Matarisu community’s concern is a hand written letter dated 13th August 2007 (i.e. 6 months after lodgment of the claimant’s lease for registration), from a Chief Taripuamata to the second defendant to the effect that the claimant’s lease extends over land that the community of Matarisu had occupied and cultivated for a long time. This was subsequently confirmed in the Inspection Report prepared by the Lands Department Officials who visited the area on 30th October 2007.

35. Similarly, in a letter dated 14th August 2007, Chief Saki Faleiwa (who was a co-signatory and joint lessor of the claimant’s lease) wrote to the second defendant seeking the cancellation of the claimant’s lease on the basis that his (the Chief) signature as joint lessor of the land had been fraudulently obtained, and also because a third custom owner of the land Chief Fred Kalmarie had not signed the claimant’s lease.

36. The last so called "complication" concerning the claimant’s lease was the typed letter from Chief Ernest Manukat (the second joint lessor and co-signatory of the claimant’s lease) addressed to the second defendant advising him that he (the Chief) wished to withdraw his signature. It is noteworthy that this last letter is dated 19th March 2009 and therefore could not have been available at the time of the second defendant’s letter of 14 September 2007 and may be safely ignored for the purposes of the present application which was filed on 12 November 2007.

37. Whilst one can sympathise with the Director’s position and concerns in his desire to ensure as far as possible that instruments that are registered under the Land Leases Act [cap 163] are as "dispute-free" as possible, unfortunately that is not part of his functions nor is the refusal power given him under section 8 (c) intended for that purpose.

38. In this latter regard the Court of Appeal said in Naflak Teufi ltd v. Kalsakau [2005] VUCA 15:

"In our view the meaning of Section 100 of the Land Leases Act [cap163] is not in doubt. We are satisfied that the object of the Section is to ensure that the land register and the processes leading up to the registration of an instrument or interest is free of any mistakes fraud or possible fraudulent activities. In other words, its purpose is to secure the integrity of the register and the internal processed culminating in registration. The section in its terms, is one which empowers the Supreme Court where it is satisfied that any registration had been obtained, made or omitted by fraud or mistake, to order rectification of the register by directing that any registration may be cancelled or amended."

39. In similar vein the Director is given a limited power in Section 99 of the Land Leases Act [cap163] to rectify the register where it does not truly declare the actual interest to which any person is entitled under the Act or where the register is in some respect erroneous or imperfect, after undertaking a due process procedure.

40. Furthermore although it has been said that "the register is everything" (per Court of Appeal in Ratua Development Ltd v. Ndai [2007] VUCA 23) and that the title of a registered proprietor is indefeasible, Section 17 of the Land Lease Act [cap 163] recognizes and protects various (unregistered) overriding interests including:

"(g) the rights of a person in actual possession of land save where enquiry is made of such person and the rights are not disclosed...."

41. The effect of the above provisions is that the registration of a lease does not preclude the exercise of the Director’s or the Court’s power to rectify the register nor does it necessarily extinguish the liabilities, rights and interest protected under Section 17 of the Act.

42. In my considered view, in the absence of the unsuccessful requisitions contemplated in section 8 (c), there is no power in the Director of Lands to delay, withhold, or refuse registration of an instrument.

43. In other words, unless the Director has sought and been denied, the information or explanation sought from the applicant for registration, the condition precedent to the exercise of the power to refuse registration does not exist so as to enable the power to be exercised. Needless to say, there is no power under Section 8 of the Land Leases Act for the Director to withhold, suspend, or delay registration of an instrument or to conduct an enquiry or investigation into an instrument lodged for registration as he considers necessary without reference to the applicant for registration.

44. Accordingly the decision of the second Defendant to withhold, suspend or delay registration of the claimant’s lease and to conduct a unilateral internal enquiry or investigation into the claimant’s lease, is unlawful and must be and is hereby quashed and set aside.

45. The claimant also seeks a mandatory order directing the Second Defendant to register the Claimant’s lease title No. 12/0431/045 according to law. I am satisfied that such an order is fully justified in the circumstances and it is so ordered to occur within 14 days of the date hereof.

46. The claimant is also awarded costs of the proceeding to be taxed if not agreed.

DATED at Port Vila, this 22nd day of March, 2010.

D. FATIAKI
Judge.