Bill v Restuetune [2015] VUSC 36; CC 14 of 2013 (8 April 2015)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
Civil Case No. 14 of 2013
(Civil Jurisdiction)

BETWEEN:

ELIE JOHN K.BILL
Claimant

AND:

DONALD RESTUETUNE
First Defendant

AND:

REPUBLIC OF VANUATU
Second Defendant

AND:

ALISTAIR MCGRILLIVRAY
Third Defendant

Coram: Mr. Justice Oliver A. Saksak

Counsel: Lent Tevi for the Claimant
Justin Ngwele for the First Defendant
Frederick Gilu for the Second Defendant
Nigel Morison for the Third Defendant

Date of Hearing: 25th – 26th February 2015
Date of Judgment: 8th April 2015

JUDGMENT

The Claims

1. This is a claim filed by the claimant Elie John under section 100 of the Land Leases Act [Cap.163] (the Act) seeking orders contained in the amended claim filed on 27th August 2013, namely:-
   
   1. An order that the Director of Lands rectify the register of Lease Title No. 03/0G52/004 by cancelling the registration of the lease to the First Defendant, Donald Restuetune.
      
   2. An Order that the Director of Lands rectify the register of Lease Title No. 03/0G52/004 by registering the lease in the claimant's name.
      
   100. Damages against the First and Second Defendant ( to be assessed).
        
   4. Costs against the First and Second Defendants
      
   5. Such further orders as the Court deems just.
      

The Law

2. Section100 of the Act states:
   
   1. "Subject to subsection (2) the Court may order the rectification of the register by directing that any registration be cancelled or amended where it is empowered by this Act or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.
      
   2. The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the interest for valuable consideration, unless such proprietor had knowledge of the omission fraud or mistake in consequence of which the rectification is sought or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default."
      

The Facts

3. The following are the facts in chronological order of happenings or occurrences-
   
   1. On 12th April 2007 the claimant among 16 other applicants lodged his application through the Land Management and Planning Committee (LMPC) for plots of land opposite the Dinh Shipping and Maritime College, Luganville. Santo.
      
   2. On 27th June 2007 a registered negotiator certificate for Lease Title 03/G52/004 (Lease 004) was issued to the Claimant.
      
   100. On 6th September 2007 the Claimant paid VT 20.000 to Ngwango Land Survey (NLSS) being for the survey plan.
        
   4. 13th February 2008- a Valuation certificate was produced for the Claimant to pay the premium fees of VT 866.000 for lease 004.
      
   5. On 19th March 2008, LATI through an ANZ bank cheque made a payment of VT 433.000.
      
   6. 26th March 2008- Amos Taso of Lister Adventist Training Institute ("LATI") and Gordon Willie and Josephine Antas ( Lands Officers) entered into the Agreement topay outstanding land premium in respect to Lease 004 under which they agreed that Mr Taso of LATI will pay the outstanding land premium for lease title 004 in the sum of VT 433.000.
      
   7. 20th May 2008- the Department of Lands wrote a letter to Whom It May Concern that the lease 004 had been allocated to the Claimant.
      
   8. 17th July 2008- Mr Benuel Tabi, lands officer in Santo certified that lease 004 has been allocated to the Claimant and further specified the payments or fees which the Claimant needs to pay to obtain the said lease 004.
      
   9. 14 August 2008- another registered negotiator certificate for lease 004 was issued to Amos Taso, Gibson Leeman and Donald Restuetune by Honourable Roro Sambo, then Acting Minister of Lands.
      
   10. 14th August 2008- a further registered negotiator certificate for lease 004 was issued to Donald Restuetune(First Defendant) by Honourable Roro Sambo, then Acting Minister of Lands.
       
   11. 20th August 2008- First Defendant paid VT 2.531 to the Santo Cashier being the fee for the application for negotiator certificate.
       
   50. 26th August 2008- a Valuation certificate was produced for the Frist Defendant to pay the premium fees of VT 866.000 for lease 004.
       
   13. 27th August 2008- the First Defendant paid VT 2.531 to the Lands Department in Port Vila being for the payment of the valuation certificate fee.
       
   14. 28th August 2008 – LATI paid VT 471.015 to the Santo Cashier for land premium, advanced rent payment and the lease execution fee for lease 004.
       
   15. 11th November 2008 - a payment through Westpac Banking Corporation Cheque VT 433.000 was being made for half payment of the premium for the lease 004 on behalf of the Claimant.
       
   16. 3rd September 2008- the Department of Lands advised that the payment made by Lister Adventist Training Institute in the sum of VT 433.000 (made on 19th March 2008) will not be part of the payment for lease 004 and that the Claimant will have to make his own payment of VT 866.000 for the lease premium.
       
   17. 12th November 2008- Claimant paid VT 373.000 to the Santo cashier being for the part payment of lease 004 premium, VT 21.140 for land rent, VT 16.875 for lease execution fee, VT 18.440, for stamp duty fees and VT 76.300 for registration fees.
       
   18. 18th November 2008 – the Director of Lands wrote to the Officer in charge of Santo Office advising that the negotiator Certificate of the First Defendant was issued without LMPC process and that he had advised the First Defendant to have his lease processed in Santo as leases over lands in Santo must be processed there.
       
   19. 23rd June 2009 - lease 004 was registered between the Government of the Republic of Vanuatu (lessor) and Donald Restuetune(First Defendant) ( lessee).
       
   20. 20th August 2009 – LATI made a payments of VT 40.000 to the Santo Cashier being for the payment of the Survey Plan for lease 004.
       
   21. 7th April 2010 – LATI lodged a caution to the Department of Lands over lease 004.
       
   5. 19th October 2012- LATI lodged another caution over lease 004 which was then registered by the Director of Lands on 16th January 2013.
      
   23. 16th January 2013 – the Director of Lands registered the caution over lease 004.
       
   10. 16th January 2013- the Director of Lands informed the First Defendant of the caution.
       

The Defences

4. Both the first and Second Defendants deny that lease 004 was obtained or registered by fraud or mistake. They argued that (a) the Claimant's negotiator certificate had expired and ( b) the claimant had not paid any of the premium sum of VT 866.000.
   

The Cross-Claims By Third Defendant

5. The Third Defendant represents the Lister Adventist Training Institute Committee Inc (LATI) which is a duly registered Charitable Association. They join issue with the claimant. They cross-claim against the first Defendant. They plead the following-
   
   1. In concert with the First defendant the Third Defendant sought acquisition of Lease 004.
      
   2. On 19th March 2008 LATI paid VT 433.000 through ANZ Bank cheque 017 being half of the premium of VT 866.000 through Bank Cheque 048.
      
   100. On 7th August 2008 the First Defendant requested and received VT 400.000 from LATI via Gibson Leeman in ANZ Bank Cheque 048.
        
   4. On 28th August 2008 the First Defendant requested and received a further VT 500.000.
      
   5. On 29th August 2008 the First Defendant requested and received a further VT 600.000 which was duly deposited to his account.
      
   6. On 31st October 2008 the First Defendant requested and received a further VT 100.000 which was duly deposited to his account.
      
   7. On 17th February 2009 the First Defendant requested and received a further VT 50.000 from LATI.
      
   8. On 23rd February 2009 Gordon Willie requested LATI to pay the Second Defendant VT 18.500 for stamp duty which was duly paid.
      
   9. On 23rd June 2009 LATI was formally advised by the Second Defendant that Lease 004 was registered to the First Defendant.
      
   10. On 28th August 2009 LATI made further payments for serving its title to the land as requested by the First and Second Defendants in the sums of-
       
       1. VT 433.000 for premium
       2. VT 21.140 for advanced land rent, and
       3. VT 471,015 for lease execution fee.
          
   11. On 21st June 2010 LATI was formally registered as a Charitable Association.
       
   50. Continued demands been made of the First Defendant to complete registration of Lease 004 to LATI which demands have not been complied with by the First Defendant.
       
   13. The Third Defendant and LATI have subsequently become aware of the claimants claims but say that at all material times they understood his negotiators certificate had lapsed and that they were a bona file purchaser of the lease.
       
   14. The Third Defendant/ LATI have placed a caution over Lease 004 claiming interest out of the First Defendant holding the lease on trust for them.
       
   15. In all the premises the First Defendant holds the lease on trust for the Third Defendant/ LATI.
       
   16. The Third Defendant/ LATI say they have not complicit in any fraud or mistake giving rise to the registration of Lease 004 contrary to the claimant's claimed interest.
       
   17. The Third Defendant/ LATI say they are bona fide purchasers for value of Lease 004 through their trustee the First Defendant who is currently in possession of the lease.
       
   18. The Third Defendant/ LATI further say they have no knowledge of the omission, fraud or mistake in consequence of which the rectification is sought and further say that they did not cause any such omission, fraud or mistake or substantially contributed to same by any act, neglect or default.
       

The Reliefs Sought on Cross-Claims

6. The Third Defendant/ LATI seeks orders that-
   
   1. The Claimant's claim be dismissed.
   2. The First Defendant give effect to registration of Lease 004 into the name of the Third Defendant/ LATI.
   100. In the alternative, an account and order for judgment against the First Defendant and/or Second Defendant for monies had and received for no valuable consideration.
        

The Evidence

7. The claimant gave oral evidence confirming his sworn statements filed on 3rd September 2013 (Exhibit C1), 19th March 2014 (Exhibit C2), 12th November 2014 ( Exhibit (3) and 14th November 2014 ( Exhibit C4). He was cross-examined on these evidence by defence Counsel. The Claimant relied on the evidence of Willie Amos Tasso filed on 26th September 2013 as his witness (Exhibit C5). He was cross-examined by defence Counsel.
   
8. The First Defendant gave evidence on oath confirming his sworn statements dated 15th September 2014 (Exhibit FD1) and of 24th February 2015 ( Exhibit FD2). He was cross-examined on these by Mr Tevi. He had no independent witnesses.
   
9. The Second Defendant relied on the evidence of Jean Marc Pierre, Director of Lands who confirmed his sworn statements dated 15th October 2014 (Exhibit SD1 and of 18th February 2015 (Exhibit SD2). He was cross examined on these by Mr Tevi and the other Counsel. There were no other independent witnesses.
   
10. The Third Defendant relied on his oral evidence confirming his evidence by sworn statement dated 6th November 2014 (Exhibit TD1).
    
11. All the evidence are perfectly summarised in the written submissions by Mr Ngwele filed on 26th February 2015 on behalf of the Frist Defendant and I need not restate them.
    

The Issues

12. The following issues have been identified and will be determined-
    
    1. Whether the First Defendant obtained Lease 004 by fraud or mistake?
    2. Whether the First Defendant had knowledge of the fraud, mistake or omission?
    100. Whether the Second Defendant substantially contributed to the omission fraud or mistake of the First Defendant.
    4. Whether the First Defendant held Lease 004 in trust for the Third Defendant?
    5. Whether the Third Defendant substantially contributed to the omission, fraud or mistake of the First Defendant?
    6. Whether the Claimant is entitled to the reliefs he seeks?
    7. Whether the Third Defendant is entitled to judgment on his counter-claim?
       

Discussions

13. (a) The First Issue
    

Fraud is often defined as a representation made dishonestly or by deception in order to gain material advantage. Section 100 of the Act requires that the Court must be satisfied that the registration of Lease 004 in favour of the First Defendant was obtained, made or omitted by fraud or mistake. The mistake just have led to the impugned registration of Lease 004 by the Second Defendant in favour of the First Defendant. See Rogara v. Takau&ors[2005] VUCA.

1. The evidence showing fraud by First Defendant.

Jean Marc Pierre's evidence ( Exhibit SD1) shows two certificates of registered negotiator dated 14 August 2008. The First certifies that Amos Tasu, Gibson Leeman and Donald Restuetune are the registered negotiators for Lease 004 for industrial purposes. The Land size is 2.487 square meters ("see JMP 8"). The Second certifies that Donald Restuetune alone is the registered negotiator of Lease 004 (see "JMP9"). Both documents were signed by Rorosambo, the then Acting Minister of Lands on the same date. There was no evidence as to which of these two documents was issued first in time on 14th August 2008 but whichever it was does not matter. The two certificates complicated and confused the matter. The Court can infer that the certificate in favour of Amos Taso, Gibson Leeman and Donald Restuetune was issued first in time and reflected the position in favour of the Third Defendant. When however the First Defendant obtained the second certificate in his sole name, the Court infers that he was doing it on and for his own and personal benefit. Clearly he had gained material advantage by representations that were dishonest and deceptive. For those actions and/or omissions I am satisfied the First Defendant had committed fraud.

2. The evidence showing mistake by the First Defendant. The evidence of Jean Marc Pierre (Exhibit SD1, "JMP18") shows paragraphs 1 and 2 which refer specifically to Lease 004. It states in part as follows:-
   

"Dear Gordon,

Lease Title 03/0G52/004 – Donald Restuetune

I refer to the above and wish to advise you that the above lease was processed without our procedural formalities. His negotiator certificate was granted by the Acting Minister of Lands Roro Sambo without the LMPC process. The client had tried to register the lease with the assistance of one of our senior officers in the Department in Vila. The lease could not be registered as there were no proper documents submitted to the Lands Records when the lease was lodged for registration. It has always been our understanding that any leases over lands in Santo must be processed from our Santo Office, not in our Vila Office......"

Lease 004 was registered in the First Defendant's name on 27th August 2008 (see Exhibit SD1, "JMP 19"). The Director wrote his letter on 18th November 2008, that is more than two months later. Clearly mistake has been admitted. The Second Defendant acknowledged that mistake in paragraph 18 of their written submissions.

Mr Ngwele for the First Defendant argued at paragraph 15 of his written submissions that the Act does not require the First Defendant to lodge his application with the Land Management and Planning Committee ( the LMPC) and relies on section 6 (1) of the Land Reform Act [Cap. 123]. This argument is rejected as untenable. The LMPC has always existed as a common and accepted practice to screen all applications before they are presented to the Minister of Lands for action or endorsements. Where the LMPC is by-passed, we see this type of problems arising.

I am therefore satisfied there were mistakes made by the Second Defendant which mistakes, led directly to the registration of Lease 004.

3. The evidence of fraud by First and Second Defendants.

The evidence of Jean Marc Pierre (Exhibit SD1, "JMP19") shows Lease 004 registered in the name of the First Defendant. In paragraph 1 it is stated that-

"The lessor has/have received from the Lessee (s) the sum of ( amount in words and figure)... Eight Hundred and sixty-six thousand vatu (VT 866.000) for the grant of this Lease".

In paragraph 3 it states-

" the Lessee(s) shall pay to the Lessor the *yearly/*quarterly/*monthly rent of (amount in words and figures) Twenty one Thousand One Hundred and Forty Vatu (VT 21.140) reviewable in accordance with the provisions of the Act and payable on the......... dates) rent to be paid)".

In paragraph 5 it states-

"the lessees holds this Lease as * joint proprietor/* proprietors in common in the following individual shares:-...."

Findings

This purported lease is void in several respects-

1. It is incomplete. There is only one Lessor and one Lessee and so the (s) in brackets at the end of each term should have crossed out or deleted appropriately.
   
2. The First Defendant had not paid VT 866,000 to the Lessor on 27th August 2008. And he had not paid VT 21,140 as the land rent as stated in the lease.
   

100. If he was holding the lease as joint proprietor, paragraph 5 of the lease document should have been completed appropriately. There were omissions and there were dishonest statements as to the payment of premium and land rent as at 27th August 2008. It transpired therefore that the information contained also in the Advice of Registration of a Dealing dated 23rd June 2009 regarding Lease 004 were false regarding the premium of VT 866,000 and land rent of VT 21.140.
     

1. The Realities
   

First, the reality is that Donald Restuetune only paid VT 440.000 on 30th May 2013 some five years later and he still has to pay the balance of VT 426,000. This is evident in his sworn statement, Exhibit FD1, annexure "E". On 16th September 2013 he paid a further VT 100.000- annexure "F". He entered into an agreement on the same date (16th September 2013) – Annexure "G". It states-

"I, Donald Restuetune, make this promise with the Department of Lands in Port Vila to pay VT 20.000 every month to cover outstanding of VT 866.000 ( Premium).

After payment first payment of VT 440.000 and now VT 100.000 the balance to settle until the full outstanding stands at VT 326.000.

I swear and make promise that I will fully comply with this agreement but if I fail to pay as agreed, the Department of Lands will have no further choice but to cancel the said agreement forthwith and proceed with forfeiture proceeding".

The First Defendant did not produce any evidence showing consistent payments made from October 2013 of VT 20.000. This indicates that he has failed seriously to perform and the lease should have been cancelled and hasn't.

2. Second, the Third Defendant purportedly claiming as LATI has paid-
   
   1. VT 122.800 on 29th August 2008 ( see Exhibit TD1, annexure 10)
   2. VT 511.015 (aggregate payment) on 28th August 2009, ( Annexure 16, Exhibit TD1)
   3. VT 18.500 on 23rd February 2009
   4. VT 433.000 on 19th March 2008 as premium

Total = VT 1.085.315

100. Third, the Claimant paid the VT 1.023.755 required of him as follows albeit outside of the 12 months period-
     
     1. VT 433.000 as premium on 11th November 2008
     2. Registration Fee of VT 76.300 on 11th December 2008
     3. Stamp Duty of VT 18.440 on 11th December 2008
     4. Lease Preparation fee of VT 25.000 on 11th December 2008
     5. Checklist Fees of VT 16.875 on 11th December 2008
     6. Land Rental of VT 21.140 on 11th December 2008
     7. Land Premium of VT 373.000 on 11th December 2008

Total Paid = VT 963.755

Balance to pay = VT 60.000

2. The Second Issue

From the evidence it is apparent the First Defendant's name appears on the first certificate of registered negotiator with Amos Taso and Gibson Leeman. This is consistent with his admission that he acted as agent for LATI. However when it transpired that on the same date being 14th August 2008, he purported to obtain a Second certificate in his sole name for the same title. I am satisfied that he had knowledge that his action at the time was dishonest.

This issue is answered in the affirmative.

100. The Third Issue

From the evidence it is apparent there were two separate payments or transactions going on at the same time for the same land. Elie John the claimant applied through the normal process and received written confirmations that Lease 004 had been " allocated" to him and having been permitted to pay VT 963.755 of the VT 1.023.755 required with a mere balance of VT 60.000. Yet he was not successful. On the other hand Donald Restuetune did not apply through the normal processes and paid only VT 652.315 some five (5) years later after the lease was registered with a balance of VT 371, 440 and got on the register, I am satisfied the government substantially contributed to the omission, fraud or mistake of the First Defendant, or caused the omission, fraud or mistake to occur. I therefore answer this issue in the affirmative.

4. The Fourth Issue.

On the First Defendant's own admission it is apparent he acted as the agent of LATI but it was his evidence that it was subject to a further sawmilling agreement. That aspect must be subject to a separate proceeding and the Court prefers not to determine it due to insufficient evidence before it. The Court expresses its concern at the way the Third Defendant purports to act for and on behalf of LATI which ought to have a committee registered, which is able to sue and be sued. There is simply no evidence as to who are the members of the committee and whether the committee has authorised the Third named Defendant to so act on its behalf. For that reason, it is not necessary to answer this issue.

5. The Fifth Issue
   

I find there is insufficient evidence or at all that the Third Defendant substantially contributed to the omission, fraud or mistake performed by the First Defendant.

6. The Sixth Issue
   

From the foregoing findings I accept the claimant's claims and enter judgment in his favour.

7. The Seventh Issue
   

The Third Defendant is only partly successful in his cross-claim.. For reasons stated earlier in the judgment, the first two reliefs he seeks are rejected and are dismissed. By way of alternative the Third Defendant is entitled to judgment against the First and Second Defendant as follows:-

1. From First Defendant- VT 1,100,000 – These are the amounts specified in paragraph 5 (c ), (d), (e ), (f) and ( g) of the judgment.
   
2. From the Second Defendant – VT 625,315

The First Defendant received VT 1.650.000 from the third Defendant but paid only VT 540.000 to the Second Defendant in respect of Lease 004. The VT 1.625.315 are the sums in paragraph 13 (b) at page 12 of this judgment plus the VT 550.000 paid to the Lands Department by the First Defendant ( see paragraph 13(a) at page 12).

14. Conclusion
    
    1. Judgment is hereby entered in favour of the claimant. He is entitled to the following orders that-
       
       1. Subject to the Claimant paying the outstanding sum of VT 60.000 within 14 days from the date hereof-
          
       2. An Order that the Director of Lands be required to cancel the registration of Lease 03/0G52/004 in the First Defendant's name and rectify the register by registering the said Lease in the Claimant's name: namely Elie John.
          
       3. The First and Second Defendants pay the Claimant's costs and incidental to this proceeding on the standard basis as agreed or be taxed by the Court. Costs shall be shared equally on a 50/50 percent among the First and Second Defendants.
          
    2. The Third Defendant is entitled to judgment on his cross-claim for the alternative relief sought against-
       
       1. The First Defendant for the repayment of the sum advanced being VT 1.100.000.
       2. The Second Defendant as indemnity for moneys paid in respect to Lease 004 being VT 1.625.315.
          
    100. The Third Defendant is entitled to half (50%) his costs on his counter-claim against the Second Defendant on the standard basis as agreed or determined by the Court.
         

DATED at Port Vila this 8th day of April 2015
BY THE COURT

OLIVER.A.SAKSAK
Judge