Molbarav v Loy [2012] VUSC 5; Civil Case 34-07 (30 January 2012)

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

Civil Case No. 34 of 2007

BETWEEN:

JOHN TARI MOLBARAV
Claimant

AND:

DANIEL LOY
First Defendant

AND:

DAVID LIVINGSTONE
Second Defendant

AND:

THE MINISTER OF LANDS
Third Defendant

AND:

DIRECTOR OF LANDS RECORDS
Fourth Defendant

AND:

JAMES NGWANGO
Fifth Defendant

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Felix Laumae for the Claimant
Mr George Nakou for the First Defendant
Mr Robin T. Kapapa for the Second Defendant
Mr Justin Ngwele for Third and Fourth Defendants
Mr Stephen Joel for Fifth Defendant

Dates of Hearing: 9th, 10th and 11th August 2011
Date of Judgment: 30th January 2012

JUDGMENT

Preliminary Matters

1. The hearing of this matter took three days from 9th to 11th August 2011. There was a site visit at the request of Counsel for the Claimant and as agreed by Counsel for the other parties on 9th August 2011.
   

Also, at the outset of the hearing Mr Laumae indicated he would not be cross-examining the fifth defendant. Counsel for the other parties did not issue any notices indicating their intentions to cross-examine the fifth defendant on his sworn statement. At that point, Mr Stephen Joel sought leave to be excused for the remainder of the trial. And the Court granted leave to Mr Joel to stand down.

On the second day of hearing, Mr Laumae objected to Mr Kapapa appearing for the second defendant alleging no notices were filed to cease acting by Mr Yawha and to begin acting by Mr Kapapa. The objection was overruled by the Court on the basis that it was too late to raise the issue and secondly that it did not matter as it is common knowledge that Mr Yawha and Mr Kapapa are both from the same Legal Firm of ACE ADVOCATES. The other objection made by Mr Laumae was in relation to the admissibility of the sworn statement of the first defendant, the late Daniel Loy who is deceased. Mr Nakou did not take issue and having accepted the objection, he withdrew the deceased's sworn statement from being part of the evidence for the first defendant.

2. Relevant Background Facts
   

I now set out the relevant background facts that gave rise to these claims as follows –

(a) Prior to Independence on 30th July 1980 lands within pre-independence titles 465 were owned in freehold by one Alexandre Raoul Leroux.

(b) In or about 1982 the South East Santo Area Land Committee had decided that late Timothy Molbarav, Paul Livo and Tangis Sisi were true custom land owners of Sarautu Land.

(c) Following the decision of the Land Committee on or about 15th September 1982, the Department of Lands caused to enter on the Record of Alienators the name of David Livingstone as alienator of title 465 and that the late Timothy Molbarav appears as the declared custom-owner of all lands in that title.

(d) Also as a result of the decision of the Land Committee, on or about 15th September 1982, the Department of Lands caused to enter the name of David Livingstone as the registered negotiator for the hand written titles 465 and 466 (with exception of lots 15 and 16). This certificate enabled David Livingstone to negotiate a residential lease from the late Timothy Molbarav as custom-owner.

(e) In or about the same year after the decision of the Land Committee, Daniel Loy, First Defendant filed an appeal against that decision. He withdrew the appeal but after sometime he refilled the appeal and it was accepted and heard by the Island Court as Land Case No. 2 of 1984.

(f) In or about 1983 David Livingstone met with the late Timothy Molbarav to negotiate a lease but late Timothy Molbarav refused to grant him the lease.

(g) In or about 1984 the Island Court heard a land case involving dispute as to ownership of lands within part of pre-independence Title No. 479 referred to as Sarautu. The Claimant was late Daniel Loy, First Defendant. The defendants were late Timothy Molbarav, Paul Livo and Tangis Sisi.

(h) When the Island Court heard the case in December 1984, the Island Court upheld the findings of the South East Santo Area Land Committee and declared the custom land owners of Sarautu, Part Titile 479 in favour of late Timothy Molbarav, Paul Livo and Tangis Sisi on 12th December 1984.

(i) The appellant and Claimant, now First Defendant did not agree with that decision so he lodged a further appeal against the Island Court decision of 12th December 1984. That appeal was registered as Land Appeal Case 1986.

(j) The Supreme Court exercising its appellate jurisdiction heard the appeal with fresh evidence and set aside the decision of the Island Court of 12th December 1984 and declared Daniel Loy, First Defendant as custom land owner of Sarautu Land on Part Title 479 on 28th July 1986.

(k) There are no records of what took place thereafter until on 16th September 2005 some 19 odd years the Claimant wrote to David Livingstone to inform him that he was maintaining his late father's position and that he did not intend to let him use his land or grant him a lease. He instead offered to pay him compensation for improvements should there be any in the sum of VT150.000. The Second Defendant did not respond to that letter and offer.

(l) Then on 7th October 2005, the Claimant through his Counsel wrote again to the Second Defendant.

(m) On 16th February 2007, some 2 years later the Second Defendant through his Counsel wrote to the Claimant's Counsel asserting he was the alienator of pre-independence titles 465 and 466.

(n) Then about a month later on 5th April 2007, the First Defendant granted a lease Title No. 04/2641/055 (Title 055) to the Second Defendant. Seven days later on 12th April 2007, the said lease was registered.

(o) Then on 14th May 2007, the Second Defendant through his Counsel wrote to the Claimant's Counsel advising them that the Second Defendant had obtained Title 055 over the Claimant's land.

(p) On 3rd August 2007, the Claimant filed his claims against the Defendants in this proceeding.

3. Claimant's claims
   

The Claimant's claims are based on Section 100 of the Land Leases Act Cap 163 alleging fraud against the First, Second and Fifth Defendants. In the alternative, the Claimant alleges mistake against the First, Second, Third and Fourth Defendants. The Claimant asserts the following relevant facts –

(a) That he is the custom owner of those lands situate at Nabuloaru area within old Tiltes 465 and 466 now included in a new title registered 04/2641/055 (hereinafter referred to as Title 055) the subject matter of this proceeding.

(b) On or about 15th September 1982, then the Minister of Land Mr Sethy Regenvanu granted a Registered Negotiator Certificate (the certificate) to the Second Defendant to facilitate negotiation with the Claimant's father, late Timothy Molbarav for a residential lease.

(c) That no such negotiation was ever made by the Second Defendant at any time.

(d) That the said certificate was never renewed and has long expired.

(e) The Second Defendant had knowledge of the Claimant's unwillingness to issue him a lease, including of an offer for compensation for improvements.

(f) The Fifth Defendant had knowledge that the Claimant is custom owner of land situate within old titles 465 and 466, but despite that knowledge the Fifth Defendant assisted the Second Defendant by drawing up a survey plan. With that knowledge the Second and Fifth Defendants committed fraud.

(g) On 5th April 2007, the Third Defendant approved a document purported to be a lease by the First Defendant to the Second Defendant.

(h) On 12th April 2007, the document was registered as Leasehold Title No. 04/2641/055 naming the First Defendant as Lessor and the Second Lessee. This title replaced old titles 465 and 466.

(i) That no premium was paid in respect of the leasehold title which covers over 20 hectares of prime seaside and beachfront lands.

(j) That a very low annual rent of VT40.000 was levied.

(k) The preceeding acts and/or omissions amounted to fraud or mistake.

(l) Since the registration of the Title 055 in favour of the Second Defendant as Lessee, he has written to the Claimant alleging that he is a trespasser, and further that the Second Defendant has made defamatory statements against the Claimant from which the Claimant and his family suffer damages.

4. The Reliefs Sought
   

For the foregoing allegations, the Claimant claims the following reliefs-

(a) That the register kept in respect of Title 055 be rectified.

(b) The Fourth Defendant be directed to effect cancellation and rectification accordingly.

(c) An order for damages for fraud against the First, Second and Fifth Defendants.

(d) An order for exemplary and aggravated damages against the First, Second and Fifth Defendants.

(e) An order for damages for defamation and/or injurious falsehood.

(f) An order that all the defendants pay the costs of and incidental to this action on an indemnity basis.

5.1. Defences

The First Defendant filed a defence on 14th July 2011 generally denying all the claims and the reliefs sought by the Claimant. They rely on the decision of the Court in Land Appeal Case No. 2 of 1986 to assert that –

(a) It was the First Defendant who was declared custom owner of all that land in old titles 456 and 466 now comprised in Title 055 the subject matter of this proceeding. (See paragraph 26 of Defence).

(b) The matter is res judicata and the Claimant is estopped from further pursuing the issue of customary ownership.

(c) This Court is functus officio. (see paragraph 27).

5.2. The Second Defendant sought leave of the Court to amend the original defence filed on 25th September 2007 on behalf of both the First and Second Defendants. Leave was granted and Counsel caused appropriate amendments by simply crossing out the First Defendant whenever they appear in the defence and refilled it on about 11th August 2011.

The Second Defendant generally denies any fraud or mistake on his part asserting that –

(a) He is the alienator of all lands comprised in old titles 465 and 466 now made into Title 055 the subject matter of this litigation.

(b) He was legally adopted by Mr Leroux who previously owned old titles 465 and 466.

(c) He relied on the judgment of the Court in Land Appeal Case No. 2 of 1986 giving customary ownership of the land to the First Defendant.

(d) Mr Leroux made a valid will in his favour.

(e) He maintains the Claimant is living illegally on the demised land. On this basis, the Second Defendant counter-claims against the Claimants for orders that –

• (i) They be restrained from removing or demolishing any fixtures or improvements on Title 055.
• (ii) They be evicted from the demised land within 21 days.
• (iii) They be ordered to pay compensation for damages done on the demised land.
• (iv) They pay the costs of the proceeding.
  

(f) The Second Defendant denies that the Claimant is entitled to any reliefs that he seeks.

5.3. The Third and Fourth Defendants filed their joint defences on 21st August 2007 generally denying having any knowledge of the majority of the claims raised. They denied any mistake and assert the Fourth Defendant had exercised his powers in good faith, relying on Section 9 of the Land Leases Act.

5.4. The Fifth Defendant does not appear to have any defence on File although he was directed to do so by orders dated 6th September 2007. He filed a response on 5th October 2007 indicating he would dispute all the claim with the Notice of Beginning to Act by Mr Joel. Further directions were issued on 12th November 2007 requiring the Fifth Defendant to file his defence within 14 days. No defence was filed but only a sworn statement was filed on 7th December 2007. In paragraph 4 of the statement the Fifth Defendant states –

"My defence in this claim is that I am not responsible for surveying, signing the survey plan or exceeding the survey the subject of lease Title No. 04/3021/606 (the subject of this Court proceedings). I did not receive payment for the survey work neither did I pay for the usual Government administration fee."

Under paragraph 6, he denies any responsibility over any damage or liabilities for damages caused to the Claimant.

6. The Issues Raised By Claimant
   

In his written submissions filed on 14th September 2011 Counsel for the Claimant raised the following seven issues for the Court's consideration and determination –

(a) Whether the Second Defendant is an alienator?
(b) Whether the Second Defendant has valid documents as an alienator?
(c) Whether the Second Defendant adhered to legal procedures in acquiring leasehold Title 055 as an alienator?
(d) Whether the judgment of the Supreme Court dated 28th July 1986 covered pre-independence title 465?
(e) Whether the survey plan used by the Second Defendant to register Leasehold Title 055 valid?
(f) Whether the registration of Leasehold Title 055 was obtained, made or omitted by fraud?
(g) Whether the registration of Leasehold Title 055 was obtained, made or omitted by mistake?

7.1. Discussions

The Court deals with the First and Second issues ((a) and (b)) together.

The Second Defendant, David Livingstone alleged he was the alienator of pre-independence title 465.

As such he had the evidential burden of proof on the balance of probabilities that he was the alienator.

Having perused the evidenced he provided by sworn statement, the Court has not seen any evidence of any certificate confirming or certifying his status as an alienator. It appears from his arguments that he is claiming under some will made by a Mr Leroux. However, he has not shown any evidence that he applied for administration of estates under the said will. The Court accepts the legal submissions by Mr Laumae in respect to these two issues. The issues in (a) and (b) under paragraph 6 and therefore answered in the negative.

7.2. The third issue is whether the Second Defendant followed the legal procedures in acquiring leasehold Title 04/2641/055?

His evidence was that he used his cousin brother then working at the Hotel Santo to assist him. He did not call this person to confirm his evidence. He misunderstood the Certificate of Registered Negotiator to be his Alienator Certificate. He was applying for a residential lease, instead he was granted a commercial lease to his great surprise. He relied on the judgment of the Supreme Court in Land Appeal Case No. L2 of 1986. However, he has failed to appreciate that judgment concerns lands called Sarautu comprised in title 479 which is outside of the lands contained in title 04/2641/055. The purported lease still has the name "Daniel Livingstone" at the end as the lessee. He confirmed when questioned by the Court that he was not Daniel Livingstone. These shows apparent flaws in the legal processes taken by the Second Defendant to assist the Court answer this issue in the negative.

7.3. The fourth issue is whether the judgment dated 28th July 1986 covered pre-independence title 465?

It is clear from the first paragraph of the judgment that the decision was only in relation to Title No. 479. The evidence of Chief Kavcor Wass support this. He was one of the custom assessors sitting on the hearing of the appeal. There was a site visit of the land the subject of the appeal and it is abundantly clear that it falls outside of the lands contained in the lease title granted to David Livingstone.
This issue is answered in the negative.

7.4. The fifth issue is whether the survey plan used to register Title 04/2641/055 in favour of David Livingstone valid?

Mr Ngwango denies he carried out the survey plans. David Livingstone himself confirms in his oral evidence that he did not hire Mr Ngwango as his surveyor at any time. The Director of Lands, Mr Jean Marc Pierre said in evidence that in order to have a valid lease, it must be accompanied by a valid survey plan which must not cover an existing village or residential area. A site visit shows there is an existing village covered in the survey plan in question.

Section 19 of the Land Surveyors Act Cap 175 requires that all survey plans be prepared and signed by a surveyor. The purported survey plan used by the Second Defendant in obtaining his lease did not meet this legal requirement. Therefore, the Court hereby declares the survey plan to be invalid.

7.5. The sixth and seventh issues are dealt with together. These are whether Lease Title 04/2641/055 was obtained, made or omitted by fraud or mistake?

Some facts in evidence which indicate fraud and mistake were –

(a) A commercial lease was issued when a residential lease was applied for.
(b) No premiums were paid.
(c) Very low annual rents were levied.
(d) The grant of title was made on the basis of the 1986 judgment which covered only title 479 and not 465 and 466.
(e) Invalid survey plan was used and accepted.
(f) The plan covers and existing village.

On the basis of case authorities of Traverso v. Kalou CAC No. 26 of 2003, Rogara & Lalie v. Takau and Ors CAC 25 of 2004, Naflak Teufi Ltd & Kalman v. Joshua Kalsakau and Ors CAC 7 of 2004 and Turquoise Ltd v. Philip Kalsuak and Ors CAC 21 of 2008 the Court accepts that Lease Title No. 04/2641/055 granted by the Third Defendant to the Second Defendant was obtained by fraud and mistake.

8. Conclusion
   

The Claimant succeeds in his claims against the First, Second, Third and Fourth Defendants and the Court gives judgment in his favour.

The Claimant is only entitled to the following orders:-

(a) An order for rectification of the lease register, and
(b) An order for costs of and incidental to this action against the Second and Third Defendants only on the standard basis as agreed or taxed by the Court.

9. Final Orders
   

(a) The Third and Fourth Defendants be hereby required to rectify the Lease Register by canceling Leasehold Title No. 04/2641/055 within 14 days from the date of this judgment.

(b) Within 21 days from the date hereof the Claimant shall prepare and submit a Memorandum of Costs to the Second and Third Defendants for payment.

DATED at Luganville this 30th day of January 2012 .

BY THE COURT

OLIVER A. SAKSAK
Judge.