Felix v Boblang [2013] VUSC 98; SC Civil Case 163 of 2007 (16 July 2013)

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

Civil Case No. 163 of 2007

BETWEEN:

THOMAS FELIX
Claimant

AND:

KALMAK BOBLANG, PIER KALORY & KALOMUT KALSES
First Defendant

ERIC KALSKAR
Second Defendant

VANUATU ORGANIC INVESTMENT LIMITED
Third Defendant

THE REPUBLIC OF VANUATU
Fourth Defendant

Hearing: 21, 22, 23, 24, 30 and 31 May, 2013

Before: Justice Robert Spear

Appearances: Felix Laumae for the Claimant
Daniel Yawha for the First, Second and Third Defendants
The Solicitor General Viran Trief and Jane Bulesa for the Fourth Defendant

Delivered: 16 July 2013

JUDGMENT

1. This is a claim by Mr Felix for rectification of the Land Leases Register in respect of Lease Title No. 12/0741/006 (LT 006). Mr Felix seeks to have a lease registered over LT 006 by the Boblang Family removed and replaced by a lease issued to him at an earlier time by the Minister of Lands.
   
2. For the purposes of this decision, the first, second and third defendants can be conveniently considered collectively as the Boblang family. The third defendant was a company established by the Boblang family as part of its internal family arrangements. I am informed by counsel that it has been struck off the register of companies. Mr Yawha indicates that the Boblang family is seeking to have the company restored to the register.
   

The Land

3. LT 006 is for a 261 hectare block of rural land situated between Eton Village and Pangpang Village on Efate. It is necessary to say a little more about the land involved in this case as the evidence refers to the land in various ways.
   
4. Prior to Independence in 1980, titles were issued for two blocks of land in this area. Old title 1940 (OT 1940) is for a block of land of 15 hectares that lies adjacent to a larger block of 251 hectares contained in old title 1494 (OT 1494).
   
5. It is accepted by all the parties that the land contained and described in OT 1494 is the same land contained and described in the LT 006.
   
6. OT 1494 was initially replaced by two lease titles 12/0741/004 and 12/0741/005. For reasons not explained in this case, LTs 004 and 005 were cancelled at some stage and replaced by LT 006. This has some passing relevance when considering the consent (s. 6 Land Reform Act) given to the Boblang lamily to negotiate with the custom owners for the formation of a lease.
   
7. There are two areas of land that are referred to by their custom names but which areas are not well defined in the evidence as to their respective boundaries. What is clear, however, is that the boundaries of these two custom areas of land are not the same as the boundaries for OTs 1940 or 1494 (LT 006). The first area is Amtaang Land and the second area is Karngo Land.
   
8. The Boblang family asserts a claim to custom ownership of Amtaang Land and this area of land appears from the Boblang evidence to cover most of the land between Eton Village and Pangpang Village.
   
9. Karngo Land lies either within or close to the Amtaang Land Area although the evidence about this is unclear.
   
10. Part of Karngo Land has been the subject of a decision of the Efate Island Court which is of some significance in this case and it is a matter to which I will return in due course.
    

The Felix Lease

11. In March 1998, Mr Felix applied for Ministerial consent to acquire a lease over OTs 1940 and 1494. The Minister's consent, by way of a certificate of registered negotiator under s. 6 of the Land Reform Act, was issued to Mr Felix on 23 December 2004. That lengthy delay (1998 to 2004) involved with the issuance of that certificate was not explained in the evidence but that is of no real consequence to the issues now raised in this case. That certificate recorded that Mr Felix was approved as a registered negotiator for the land in OT 1494. Custom ownershi descrdescribed in the certificate as "Disputed between Several Families of Eton". As the custom ownership was noted to be in dispute, that meant that Mr Felix was able to negotiate a lease with the Minister of Lands pursuant to s. 8 of the Land Reform Act.
    
12. In April 2005, following the issuance of the certificate of registered negotiator, Mr Felix engaged a local survey firm to prepare a plan of the land within OT 1494. That plan was registered and eventually allocated lease title reference 12/0741/006 (LT 006). Mr Felix also applied to the Department of Lands for a rental valuation of the land within LT 006 for a 75 year Agricultural Lease. One curious point to note at this stage is that there was no valuation undertaken by the Department of Lands for a premium to be charged to Mr Felix for acquiring the lease. The valuation was only as to rental. I will return to this issue in due course.
    
13. A 75 year agricultural lease was prepared by the Department of Lands for LT 006 and duly executed by Mr Felix as the lessee and the Minister of Lands of the time purportedly pursuant to s. 8 of the Land Reform Act. The lease (The Felix lease) shows that the lease was executed by the Minister of Lands on 23 August 2005.
    
14. Two days later, on 25 August 2005, the Director of Lands enquired of the Efate Island Court whether there was any claim filed with that Court as to custom ownership of OT 1494. This was followed a few days later on 29 August 2005 (exhibit 1) by a letter from the Director General of Lands to the Director of Lands entitled "Allegations of Fraudulent Dealings &; Thomas Felix land lease ex-land title 1494 (changed to 12to 12/0741/004 and 12/0741/005) – now land title No. 12/0741/006)". In that letter, the Director General asked the Director of Lands to enquire whether there were any court cases pending in relation to this title. The Director General also asked that "the leases are not registered"; which is clearly a reference to the Felix lease and it was certainly treated as a direction that the Felix lease should not be registered at that time.
    
15. It is likely that the Boblang family had raised concerns at that stage about the circumstances surrounding the Felix lease. However, it is not known by the evidence exactly what information the Director General was acting upon.
    
16. Mr Laumae raised one matter concerning the sequence of events in this particular respect. The Director of Lands wrote to the Island Court on 25 August 2005 requesting information about the claim status of OT 1494. However, it was four days later that the Director General of Lands wrote to the Director of Lands directing that such an inquiry be made. The tone of the Director General's letter suggests that it was a follow-up to a discussion between the Director General and the Director which, if correct, simply means that the Director acted upon those discussions prior to receiving the letter from the Director General. In the end, nothing significant turns on that.
    
17. Mr Felix lodged his lease for registration on 12 September 2005 after payment of all applicable fees as well as the first year's rental of Vt 54,000 for all of which an invoice had been raised by the Department of Lands. The notation on the Felix lease records that it was registered at 09.45 hours on 12 September 2005 against LT 006. That notation notwithstanding, there is an issue as to whether the Felix lease was ever "registered" for the purposes of the Land Leases Act.
    

The Boblang Lease

18. It is now necessary to go back in time slightly to consider how the Boblang lease came to be registered.
    
19. On 26 April 2005, around the time that the survey of the land in OT 1494 was being undertaken on the instructions of Mr Felix, the Minister of Lands of that time issued a certificate of registered negotiator under s.6 of the Land Reform Act to the second defendant Eric Kalskar (the certificate refers to him as Eri Kalskar) for the land in lease titles 12/0741/004 and 12/0741/005. Mr Kalsakar is a member of the Boblang family. It is abundantly clear, however, that this certificate relates to the land in LT 006. The land area was described as being "20 hectares" and the custom owners were specified to be "Family Bob Lang".
    
20. This certificate was issued to Mr Kalskar some five months after Mr Felix received his certificate.
    
21. The mistake as to the land area was dismissed by the current Acting Director General of Lands Jean Marc Pierre, in the course of his evidence, as simply being a mistake and of little significance. The impression gained from Mr Pierre was that mistakes as to land area in such certificates were not uncommon. Given the stage at which such certificates are issued, that is no surprising.
    
22. Of particular significance, however, is that this certificate specified that the custom owners were Family Boblang (Bob Lang) whereas the certificate issued to Mr Felix specified that custom ownership of the land was in dispute amongst several families from Eton.
    
23. There is no property in a certificate of registered negotiator such that the first person in time to receive such consent has any priority over subsequent recipients of consent. There is no reason at all why a number of people could not each have separate certificates of registered negotiator issued to them in respect of the same block of land. It is simply the consent to enable a person to negotiate with the custom owners or the Minister of Lands (as the case may require) towards an agreement to lease the land.
    
24. Of particular significance here is the difference between the two certificates as to the identification of the custom owners. The Felix certificate related to the land within both OT 1940 and OT 1494 and it specified that custom ownership was "Disputed between Several Families of Eton". The Boblang certificate related to the land within LT 006 (replacing LTs 004 and 005) and it specified that "Family Bob Lang" were the custom owners.
    
25. On 5 September 2006, the Boblang lease was registered against LT 006. It was again a 75 year Agricultural Lease. More exactly, the lease was granted by the first defendants (all members of Family Boblang) as lessors to the second defendant Eric Kalskar (another member of Family Boblang) as lessee. Subsequently, the third defendant Vanuatu Organic Investment Ltd was formed by the Boblang family and Eric Kalskar transferred his interest as lessee to that company with the consent of the first defendants as lessees.
    
26. Notwithstanding the transfer to Vanuatu Organic Investments Limited, no issue as to indefeasibility of title arises beyond that which could be claimed by Mr Kalskar. Mr Yawha accepted without hesitation that Vanuatu Organic Investment Limited was simply a corporate vehicle formed by the Boblang family to assist with the management of its investments. It can safely be accepted that the company was possessed of the same degree of knowledge as Mr Kalskar in relation to all relevant lease matters. This lease can be considered simply as the Boblang lease granted by the Boblang family representatives notwithstanding that subsequent transfer to the company.
    
27. In a similar vein, the absence of a premium charge to Mr Kalskar when he took the lease from the first defendants does not raise the same concerns as are raised with respect to the Felix lease where no premium was charged. The lease to Mr Kalskar was clearly an internal arrangement within the Boblang Family as was the subsequent transfer of the lease to Vanuatu Organic Investment Limited. As it happened, the company paid Vt 500,000 for the lease but that again was a matter entirely internal to the Boblang Family and it has no significance to the issues before the court.
    
28. In complete contrast, Mr Felix acquired his lease from the Minister of Lands essentially on behalf of customs owners not determined so it cannot be said that this was an internal Felix family arrangement.
    
29. Section 8 of the Land Reform Act provides that the Minister of Lands can grant a lease only where there is dispute as to custom ownership of the land concerned – s. 8 (1) (b) and (2) (b) Land Reform Act.
    
30. The evidence in the case has not been of much assistance as to the background to the certificate issued to Mr Kalskar on 26 April 2005 nor how the Minister of Lands of the time considered that the custom owners of the land concerned were Family Boblang. It appears to have been dealt with directly by the Minister rather than by the Land Management Development Committee (LMDC) of the Department of Lands which is the standard practice.
    
31. The first consideration must be whether the Boblang lease over LT 006 should be removed from the Land Leases Register pursuant to s.100 (1) of the Land Leases Act. That requires a determination as to whether Mr Felix has proven on the balance of probabilities that the customary ownership of the land within LT 006 was disputed at that time that the Felix lease and the Boblang lease were entered into. If there was no dispute as to custom ownership then it is clear that the Minister had no lawful power to enter into a lease with Mr Felix. Equally, if there was a dispute then a lease should not have been granted to by Mr Kalskar.
    

The Efate Island Court (EIC) Cases

32. The issue as to custom ownership requires some understanding of two court cases in the Efate Island Court.
    
33. Civil Case no. 4 of 1988 involved a claim by Chief Tarisaliu for custom ownership of the land within OT 1940. This case also involved Family Boblang.
    
34. Land Case no. 4 of 1995 involved a claim by Mr Felix's father (Kalter Felix) in trespass against Family Kalsilik in respect of a small part of OT 1940. The EIC delivered a decision on this claim on 13 March 1998. At that time, no decision had been given in Civil Case 4/88.
    
35. The two cases were considered by the Chief Justice in Felix v Kalsilik[1]. Procedurally, it was a little more complicated than that but it is unnecessary to be more elaborate. In a decision given on 20 December 2004, the decision of the EIC in Land Case 4/95 was set aside by the Supreme Court. The case was then remitted to the EIC to be consolidated with Civil Case 4/88 and the two cases reheard. The Chief Justice's decision was upheld by the Court of Appeal.
    
36. The EIC then heard both cases and delivered a comprehensive decision on 16 October 2009[2]. It determined in particular that:
    
    1. OT 1940 defined only part of Karngo Land – referred to as Karngo Down
    2. OT 1940 / Karngo Down comprised 41 hectares
    100. Family Boblang did not own any of the land within OT 1940
    4. Family Kalsilik was the custom owner of the land within OT 1940
    5. Family Felix was entitled to a occupy small part of that land within OT 1940 subject to the authority of Kalsilik
       
37. Of particular importance is the recurring confirmation in all these decisions of the EIC, the Supreme Court, and the Court of Appeal that these cases were confined to a consideration of the land within OT 1940 which formed part of Karngo Land. In particular, these cases never addressed any custom ownership rights of the land within OT 1494 (or LT 006 as it became).
    
38. That decision of the EIC of 16 October 2009 is now under appeal to this Court but that is of no significance to the issued raised by this case.
    

Custom Ownership of LT 006

39. Mr Laumae's initial argument is that the land within OT 1494 / LT 006 is part of Karngo land, the Felix family (and Kalsalik family) claims custom ownership of that part of Karngo land that has not resolved by the EIC in its decision of 16 October 2009, LT 006 is within Karngo land and at least the Boblang family must be taken to contest the Felix family's claim to custom ownership of Karngo land. Accordingly, the argument is that the Felix lease and the Boblang lease were entered into at a time when there was (and remains) a dispute about the custom ownership of the land within LT 006. In those circumstances, the Minister of Lands was empowered by s.8 of the Land Reform Act to grant the lease to Mr Felix.
    
41. If Mr Laumae's further argument is that if the position in the previous paragraph is reached, the Felix lease should be registered against LT 006.
    
42. The evidence of a dispute as to custom ownership of the land within LT 006 is given primarily by Mr Felix. To some degree, it is supported by documentation on the Department of Lands' file that has also been produced.
    
43. Mr Felix initially applied for consent to negotiate a lease over OTs 1940 and 1494 in March 1998.
    
44. Mr Felix wrote to Senior Lands Officer Moses on 23 September 1998 in which he pursued his application for a negotiator's certificate which appeared to have received some consent from various lands' officers but not the final sign-off by the Minister of Lands. Mr Felix asserted that the two titles (OTs 1940 1494) were within Karngo land which belonged to the tribe known as Kaflak Mal of which his family was a member. Mr Felix supported his letter with both a letter from his four uncles of the Siftertemat family of the tribe Kaflak Mal as well a letter from his parents, Kalter Felix and Touta Felix. Mrs Touta Felix was a Sifertemat and the sister of the four Siftertemat uncles.
    
45. Those two supporting letters explained the family claim to custom ownership of Karngo land and stated further that OTs 1940 and 1494 were within Karngo land. They also declared their consent to Mr Felix taking a lease over the land. Of course, the decision of the EIC determined that Kalter Felix had a subordinate (to Kalsalik) claim to a small part of OT 1940.
    
46. In 1998, a draft certificate of registered negotiator for OTs 1940 and 1494 in favour of Mr Felix was prepared by the Department of Lands for signature by the Minister of Lands but it was never signed off. That draft certificate also noted that custom ownership was disputed.
    
47. Additionally, a Kastom Ona Blong Kraon form dated 2 October 1998 was prepared for both OTs 1940 and 1494 but it is not known what happened to that.
    
48. There were further dealings between Mr Felix and the Department of Lands leading up to the Director of Lands writing to Mr Felix on 15 June 2004 advising that his application would now be forwarded to the LMDC. The Secretary of that committee then sent out a new Kastom Ona Blong Kraon form to the Chairman of the Area Council of Chiefs at Eton Village under cover of a letter of 7 September 2004. That form was directed solely at the land within OT 1494 (LT 006).
    
49. That was followed by a certificate of registered negotiator being issued to Mr Felix in respect of OT 1494 on 23 December 2004. As mentioned, that certificate described the custom ownership as "Disputed between Several Families of Eton". Mr Felix then negotiated a lease with the Minister of Lands on the basis that custom ownership was disputed. Those negotiations led to the Felix lease over LT 006 being entered into on 23 August 2005 between the Minister of Lands (s.8 of the Land Leases Act) and Mr Felix which lease was submitted for registration in early September 2005.
    
50. The evidence for the Boblang family (first to third defendants) is that the land within OT 1494 / LT 0 part of Amtaang Land and and that they assert a claim to be the custom owners of Amtaang Land. However, there has been no formal determination of custom ownership of Amtang Land. It has not been formally established ehed exactly what area of land it includes. In particular, it has not been formally established whether it includes Karngo Land or the land within LT 006
    
51. What cannot be easily dismissed is the evidence from Mr Felix, supported by his relatives, that the land within LT 006 was Siftertemat or Felix custom land or at least they had a claim to it.
    
52. The Boblang family asserted in their evidence that they were the custom owners of Amtaang land which included Karngo land and LTs 1940 and 1494. However, the Island Court has now determined that Boblang does not have custom ownership of the land within LT 1940 and so the simply assertion by Boblang family of a claim for custom ownership cannot be accepted uncritically.
    
53. Even if the Boblang Family evidence is accepted, it effectively does no more than identify a conflict with Mr Felix and his wider family as to who are the true custom owners of the land within LT 006. This Court does not have jurisdiction to determine custom ownership disputes. That is for the Island Court or the customary land tribunals depending on the timing of the claim.
    
54. The subsequent concern of the Director General of Lands about the Felix lease was turned back to Mr Felix for him to identify a proceeding before the Island Court or a customary land tribunal in which a dispute had been raised as to the custom ownership of the land within LT 006. er, the mere absence once of an existing claim in either of those tribunals cannot be assumed to be an indication that there is spute. There might well be a dispute but the disputing parties have never commenced the fore formal process towards obtaining a declaration as to custom ownership.
    
55. On my assessment of the evidence, I find that it is more probable than not that custom ownership of the land within LT 006 is disputed and that it has been disputed at all times material to this case.
    
56. Those competing claims have not been resolved either by the Island Court or through the customary land tribunal system. Finality or certainty as to custom ownership will only be achieved if and when one or other of the claimants commences the formal process to determine custom ownership of the land within LT 006.
    
57. That finding that the land within LT 006 is more likely than not disputed as to custom ownership of course raises squarely the issue of the legality of the Boblang lease. If custom ownership was disputed when that lease was entered into, the first defendants had no right to grant the lease.
    
58. The case for Mr Felix is that the Boblang lease was registered as a result of a mistake on the part of the Director of Lands that the first defendants had the right to grant the Boblang lease to Mr Kalskar. I accept that this aspect of the claim has been proven on the balance of probabilities.
    
59. The question then arises whether the Boblang lease should be removed from the Land Leases Register pursuant to s.100(1) of the Act. Rectification by the Court is at the discretion of the Court. It is also subject to the prohibition against rectification under s.100 (2) where the registered proprietor of (in this case) the lease is in possession and was (what is often described as) a bona fide purchaser for value. In this case, that requires a determination as to whether the Boblang family knew that the land was disputed or more exactly that there were competing claims to it.
    
60. There has been no clear evidence as to occupation of the land within LT 006 either by Mr Felix or the Boblang family. The impression that I have been left with is that Mr Felix has been farming the land but I cannot be sure of that. In particular, there is no suggestion in the evidence that the Boblang family are in occupation of it.
    
61. In relation to the second limb of s. 100 (2), both the Felix family and the Boblang family are from the small Efate community of Eton. It is difficult to avoid the conclusion that little would happen in this area as to land ownership without the Eton community becoming aware of it. In this case, the coincidence of time with the Boblang family seeking ministerial consent to negotiate for a lease over LT 006 at the same time that Mr Felix was having the land surveyed, and the Boblang family using the lease title issued as a result of that survey, leaves me in no doubt that the Boblang family well knew that Mr Felix was moving to secure a lease over that block of land.
    
62. Additionally, Mr Felix's application for a certificate of registered negotiator eventually resulted in a Kastom Ona Blong Kraon form being sent by the Department of Lands to the Eton Council of Chiefs in September 2004. That form is essentially an inquiry of the local chiefs as to custom ownership of the land in question. If there was any lack of local knowledge about Mr Felix's intentions to take a lease over OT 1494 (LT 006) prior to that time, that inquiry made of the Eton Council of Chiefs would surely have alerted all the senior members of the Eton Community including the Boblang family of those intentions
    
63. I find that when the Boblang family's lease was registered, the Boblang family was well aware that Mr Felix was in the process of registering a lease himself over that land. That being so, they would also have had to know that either someone other than Family Boblang had been identified as the custom owners or that the Minister was able to grant the lease on behalf of custom owners not determined. In those circumstances, the Boblang family must be taken to have had knowledge of the mistake that pervaded the registration of their lease. That is, that custom ownership was indeed claimed by others notwithstanding that they may have believed, and still believe, that they have the only legitimate claim.
    
64. In all these circumstances, the Boblang lease should not remain on the title. The Boblang family cannot maintain an indefeasible title as is otherwise provided by ss. 14 and 15 of the Land Leases Act.
    
65. I am not, however, attracted to the second claim by Mr Felix that the Boblang lease should be replaced with the Felix lease. As there are a number of questions about the legitimacy of the Boblang lease, there are also questions about the legitimacy of the Felix lease.
    
66. The Minister of Lands is not able to exercise his power under s.8 of the Land Reform Act just as he pleases. He is required to act on behalf of those whom he understands claim custom ownership and in their best interests. In this respect see Ifira Trustees Ltd v Family Kalsakau[3] (applied in Turquoise v Kalsuak[4]) in which the Court of Appeal said this in respect of the Minister's power to make decisions:
    

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 processes and procedures.

Section 8 (Land Reform Act), as an example, is not a licence for a Minister to make any decision that he likes about the care 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

67. That responsibility surely requires the Minister of Lands, prior to acting under s. 8, to do his best to consult those who claim custom ownership particularly about exceptional provisions in the proposed lease.
    
68. There is no evidence that, when considering whether to grant the lease to Mr Felix, the Minister of Lands made any attempt to consult those "several families of Eton" who had to be taken as understood by the Minister of Lands of the time to claim custom ownership of the land in LT 006. The Boblang family certainly made no mention of having being consulted. There might well be more claimants.
    
69. Perhaps more to the point, Mr Felix was not charged a premium by the Minister of Lands for the Felix lease. In short, the Minister gifted Mr Felix a 75 year agricultural lease over 251 hectares. The silence by Mr Felix on how that came about is quite unsatisfactory. When pressed in cross-examination on the issue, Mr Felix simply said that he paid all that he was asked to pay and that he would have paid a premium if that was required.
    
70. I found Mr Felix to be quite evasive in this particular respect. Furthermore, I find that it is simply extraordinary that any Minister of Lands would effectively give away a 75 year agricultural lease on behalf of others and demand nothing for it. I am left with the serious concern that the Felix lease came about through dealings involving Mr Felix which have not been disclosed.
    
71. Jean Marc Pierre was unable to explain why no premium was charged except that it appeared that this particular aspect was dealt with directly by the Minister of Lands of the time or within the Ministry of lands as against the Department of Lands. Mr Pierre stated that a premium should have been charged calculated as 35% of the unimproved value of the land.
    
72. The valuation evidence from Levi Tarosa (adduced by Mr Felix) put the unimproved value of the land value of the land as at 11 July 2008 at Vt 20 million. Applying Mr Pierre's standard premium of 35% of the unimproved value of the land, that would mean that Mr Felix should have been charged a premium of approximately Vt 7 million. That is in line with Mr Tarosa's valuation of the Felix lease for the remaining 70 years of its 75 year term at Vt 5,100,000.
    
73. What possible reason could the Minister of Lands have had for denying those claiming custom ownership the available premium? It defies any notion that the Minister was acting on behalf of and in the best interests of those claiming custom ownership; or, perhaps more exactly, those who would in due course be declared the custom owners. It is clear that there is more to the circumstances that saw the Felix lease being granted than has been forthcoming from (in particular) Mr Felix. It suggests a possible explanation as to why the Director General of Lands raised concerns about the Felix lease.
    
74. However, the Director of Lands should not have just put the Felix lease to one side and ignored it while advancing the Boblang lease to registration. Instruments (such as leases) are to be registered in accordance with the order in which they are presented for registration[5]. That required the Felix lease to be accorded prima facie priority for registration over the Boblang lease. The Director is required to record the order of presentation in the presentation book[6].
    
75. Any concerns held by the Director about the Felix lease should have been addressed by him within his powers under s.8 of the Land Leases Act which appear below:
    

8. General powers of Director

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.

76. In particular, and as an initial step, the Director should have summonsed Mr Felix to appear before him and to provide an explanation, under oath if necessary, about the matters on which the Director had concerns. That approach would have permitted the Director to have refused to proceed with registration while his inquiry of Mr Felix was being undertaken. Ultimately, the Director could seek the assistance of this Court by stating a case or reserving any question for the consideration of this Court.
    
77. It is perhaps timely to mention that, as a matter of law, the registration of instruments is a matter for the Director of Lands and in this respect he is not subject to direction from the Minister of Lands. Even if a lease presented for registration has been signed by the Minister pursuant to s. 8 of the Land Reform Act, the Director is still required to exercise his statutory responsibilities under the Land Leases Act and act in a way that ensures the integrity of the land lease registration system.
    
78. A Minister of Lands should, furthermore, be constrained when exercising his powers under s.8 of the Land Reform Act; such as granting a lease on behalf of those claiming custom ownership. This Court will be hesitant at upholding a document entered into by a Minister of Lands under the Land Reform Act if it appears that the Director of Lands and his Department have not been actively involved in the process. It is difficult to see why a member of the public would feel the legitimate need to engage the Minister of Lands directly in negotiations over the lease of a property rather than to move through the Department of Lands. If someone choses to do so, then they do so at the risk that initially the Director and ultimately this Court will subject those dealings to close scrutiny.
    
79. Mr Laumae argued that the Felix lease had in fact been registered. That can be dealt with quite swiftly given the conclusions reached above.
    
80. As previously mentioned, the Felix lease contains a notation that it was "registered at 09.45 hours on 12 September 2005. Mr Laumae argued that the lease was registered and accordingly Mr Felix was entitled to protection as provided under s. 15 of the Land Leases Act which protection was somehow subverted by the registration of the Boblang lease.
    
81. The starting point for a consideration of this issue is section 22 of the Land Lease Act. It requires the registration of all leases or mortgages with some exceptions which do not apply here. It provides further that a lease or mortgage required to be registered "shall be ineffectual" to create a leasehold interest if it is not registered in accordance with the Act.
    

22. Instruments ineffectual until registered

(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.

(2) Subject to the provisions of subsection (3) every instrument creating or disposing of a registered lease or mortgage shall be registered.

(3) It shall not be necessary to register –

(a) any lease for a period not exceeding 3 years unless it is required to be registered under section 35;

(b) any transfer, mortgage, or other instrument disposing of any lease being a lease for a period not exceeding 3 years which is not registered or required to be registered under section 35;

(c) any will;

(d) any appointment of a personal representative;

(e) any appointment of a trustee in bankruptcy or any receiving order in bankruptcy; or

(f) any order of a court unless the registration thereof or of the effect thereof is specifically required by this Act.

(4) If requested so to do, the Director shall register such instrument as is mentioned in subsection (3)(d) or (e) and may register any other instrument mentioned in subsection (3) save a will which shall not be capable of registration.

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

(6) The death of any person by or on behalf of whom any instrument of dealing has been executed shall not affect the validity thereof and any such instrument may be presented for registration as if the death had not occurred

82. Registration is defined in s. 1 of the Land Leases Act and it requires an entry to be made in the Land Leases Register. That Land Leases Register is a permanent record required to be kept and maintained in the Lands Records Office of the Department of Lands[7]. Essentially, it is a document maintained in both English and French. Section 1 of the Act defines "the Register" as the leaf of the Land Leases Register kept in respect of a registered lease. Applicable definitions in Section 1 are:
    

"Land Leases Register" means the Land Leases Register established under section 4;

"the register" means the leaf of the Land Leases Register kept in respect of a registered lease;

"to register" means to make an entry in the Land Leases Register under this Act and "registered", "unregistered" and "registration" shall be construed accordingly;

"registrable", in relation to an instrument, means required to be registered or capable of registration under this Act;

83. Mr Pierre explained the registration process. He says that once a lease was executed by the lessor and lessee, an invoice is raised in the Department of Lands for all relevant fees. When those fees and any duty are paid the lease is then presented for registration. The time and date of presentation for registration is noted both on the lease and in (what Mr Pierre described as) the "register book". This is clearly a reference to the "presentation book" explained in s. 2 (c) of the Land Leases Act which is another of the core records required to be kept. However, such notation is not the time of actual registration and that only occurs after the document has moved through a checking process to determine whether the instrument is "registrable". That checking process involved the instrument moving through a number of land officers who check out various matters such as correct title description, correct execution, payment of fees and such like.
    
84. Mr Pierre explained, in my view correctly, that registration only occurs when the leaf of the Land Leases Register is recorded with the particular dealing. In this case, Mr Pierre's evidence is that the Felix lease was never registered as it was never noted on the leaf of the Land Leases Register for LT 006.
    
85. There is no evidence that the Felixe was registered as required by the Land Leases Act. It was certainly lodged for registratitration but the registration process was not completed to the point where the lease was formally registered against the lease title. There is no evidence that the registration of the lease was ever entered on a leaf (page) of the Land Leases Register. Accordingly, Mr Felix never acquired an indefeasible title[8] to the leasehold estate over LT 006 as would have been provided in the event of registration by operation of ss. 14 and 15 of the Land Leases Act. The Felix lease was "ineffectual [9] in so far as the provisions of the Act are concerned and remains so.
    
86. Section 27 of the Land Leases Act provides for the registration of instruments in accordance with the priority accorded "to the order in which the instruments or applications... were presented in registrable form to the Land Records Office". This provision has some importance here as the Felix lease was lodged for registration before the Boblang lease. That importance only arises, however, if custom ownership of the land was in dispute, the Felix lease was in registrable form (and it appears that it was) and there was no other good reason why it should not be registered.
    
87. Mr Laumae pointed to the evidence that not only had the Department of Lands raised an invoice for the fees incidental to the registration of the plan, the issue of the title, the preparation of the lease and the registration of the lease, it also raised an invoice for the first year's rental which rental Mr Felix paid. Furthermore, Mr Felix appears to have found out about the Boblang lease the following year only when he made inquiries about paying the next year's rental for the land.
    
88. Mr Pierre explained that the cashier in the Department of Lands operated essentially a stand-alone system. When a lease was presented for registration, the relevant invoices were raised for fees, premium and rental pursuant to the provisions of the lease. There was, however, then no cross-checking by the cashier to see if the lease was ever registered. Mr Pierre dismissed the suggestion that the raising of invoices was evidence of registration. In that respect, Mr Pierre must surely be right as registration can only be completed as required by the Land Leases Act and that requires the entry of the dealing on to the Land Leases Register.
    

Breach of Contract

89. The final claim made by Mr Felix is for damages for breach of contract. Mr Felix asserts that the Felix lease constituted a binding and enforceable contract between Mr Felix and the Minister of Lands "(by) operation of section 22(5) of the Land Leases Act". The breach is particularised in the claim as occurring "when (the Minister of Lands) approved the subsequent (Boblang Lease) using (Mr Felix's survey plan without notice and valid reasons."
    
90. Section 22(5) of the Act does not operate to establish such a contract. It is in these terms:
    

22. Instruments ineffectual until registered

...

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

....

91. Section 22 simply but importantly provides that the registration of a lease or mortgage, and accordingly the protection that comes with registration, can only occur pursuant to the Act. However, by s. 22(5), that still leave pare parties to the lease or mortgage with any private law rights by the particular contract involved.
    
92. The response by the Stae State to this particular claim is that the Felix lease was not acquired for valuable consideration and accordingly it is neither binding on the parties or enforceable. I can say now that I do not accept that the Felix lease can be dismissed so easily as a contract.
    
93. The law is not concerned with the adequacy of consideration and so the absence of a charge for a premium is not determinative. In this case, Mr Felix subjected himself to various requirements including the payment of rent, the payment of rates, the preservation of the land and such like. Those incurred obligations all amount to consideration.
    
94. Furthermore, as a general rule of law, a promise is not binding as a contract unless it is either made in a deed or supported by some consideration[10]. In this case, the Felix lease clearly qualifies as a deed. It is in writing, it is clear on its face that it is intended to be a deed, it was executed by the parties as required for a deed, and it was also "delivered" in the sense that by submitting it for registration, Mr Felix clearly intended to be bound by it.
    
95. The difficulty for Mr Felix in this respect is in terms of the breach alleged by him. Mr Felix has to be taken as contending that it was an implied term of the lease that the Minister would not approve (whatever that might mean in this context) a subsequent lease for the same block of land; although that was not specifically pleaded. Furthermore, that the Minister breached that implied term by approving the Boblang lease. I do not accept that this is so. Indeed, I consider that this particular claim is at best for Mr Felix premature and at worst completely misconceived.
    
96. In order for such a term to be implied in the lease, it has to be so implied either in fact, by operation of law or by custom[11]. The only possibility here is that it was implied in fact; that is, a term not expressly set out in the contract but which the parties must have intended to include.
    
97. Such a term could only be implied in fact if it meets either (what are described as) the Officious Bystander Test[12] or the Business Efficacy Test[13]. It is unnecessary to explain those tests. That is because such a term that could meet those tests would not have been in the contemplation of the parties or, if raised, would quickly have been dismissed at least by the Minister of Lands insofar as a subsequent lease granted by "custom owners" (such as the Boblang lease). That may not necessarily be the case if the subsequent lease was granted by the Minister under s. 8 of the Land Reform Act but of course that is not the case here. The Minister would have had to have appreciated that as he had no involvement in the registration process, or any right to be involved, he could not interfere with the Director of Lands statutory responsibilities and powers under the Land Leases Act.
    
98. Assuming, however, that this was an implied term of the lease, there is no evidence that the Minister of Lands ever approved the Boblang lease (whatever "approval" in that context might mean). There is no evidence that the Minister of Lands had anything further to do with LT 006 after executing the Felix lease. Instead, the Boblang lease was between the first defendants (as the apparent custom owners) and Mr Kalskar and then submitted for registration to the Director of Lands. The Land Leases Act does not require Ministerial approval for the registration of a lease and, indeed, the Minister of Lands has no statutory involvement in the registration process.
    
99. This particular cause of action received little attention from counsel for both Mr Felix and the State and I do not propose to deal with it more than I have above. With respect, this claim is misconceived. I certainly find that there was no such implied term and accordingly no breach of contract.
    

Conclusion

100. For the foregoing reasons:
     
     1. I order that the Director of Lands rectify the Land Leases Register by removing the Boblang Lease (the lease by the first defendants to the third defendant) from Lease Title 12 0741/006.
        
     2. I decline to order further rectification that the Felix Lease (the lease by The Minister of Lands to the claimant) be registered against Lease Title 12/0741/006
        
     100. I dismiss the claim for breach of contract.
          
101. This leaves the Director of Lands to deal with the Felix lease and the Boblang lease in respect of any concerns about their respective legitimacy pursuant to the Director's powers under s. 8 of the Land Leases Act.
     
102. A concentrated inquiry should be undertaken by the Director to ascertain the correct position as to custom ownership before dealing further with either lease.
     
103. My finding is no more than the conclusion it was more likely than not that the custom ownership of the land was and remains disputed. It may be that a proper and full inquiry will reveal that there is no dispute as to custom ownership although that will not necessarily mean that the Boblang lease should be considered again for registration. That could only come about if the Director is satisfied on proper grounds that the Boblang Family is the true custom owner of the land within LT 006. Equally, the inquiry might reveal that there is a real dispute as to custom ownership.
     
104. Depending on the outcome of the inquiry as to custom ownership, the Director may need to focus particularly on the reason why no premium was charged to Mr Felix for his lease and why there was no apparent consultation by the Minister with those claiming custom ownership about the absence of a premium and indeed the grant of a lease to Mr Felix in the first place. The uncertainty about that aspect of the Felix lease raises issues central to the legitimacy of the negotiation process.
     
105. In all the circumstances, it does appear preferable for all the parties to go back to start the whole process again.
     

Costs

106. As to costs, there has been mixed success for the claimant. However, I consider that each of the parties should bear their own costs as they appear to have each contributed in their own way to this very untidy and unfortunate state of affairs.
     

BY THE COURT

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^[1] Felix Family v Kalsilik Family [2004] VUSC 20; Land Appeal Case 046 of 1998 (20 December 2004)
^[2] Boblang v Felix [2009] VUICB 5; Land Case 04 of 1995 (16 October 2009)
^[3] [2006] VUCA; CAC 5 of 2006 (6 October 2006)
^[4] [2008] VUCA; Civil Appeal Case 21 of 2008 (4 December 2008)
^[5] s. 27 Land Leases Act
^[6] s.2 (c ) Land Leases Act
^[7] ss2 and 4 Land Leases Act
^[8] s.15 Land Leases Act
^[9] s.22 land Leases Act
^[10] Treitel: The Law of Contract, 12 edit (para 3-001) Chitty on Contracts, 29^th edit, Vol 1 (para3-001)
^[11] Treitel: The Law of Contract, 12 edit (para 6-028)
^[12] Shirlaw v Southern Foundries (1936) Ltd [1939] 2 K.B. 206 at 227 (affirmed [1940] A.C. 701
^[13] Luxor (Eastbourne) Ltd v Cooper [1941] A.C.108 at 137