Lauto v Valuer General [2015] VUSC 95; JR 32 of 2014 (23 July 2015)

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

JUDICIAL REVIEW CASE No. 32 of 2014

BETWEEN

BERNARD ITAI LAUTO
APPLICANT

AND

THE VALUER GENERAL
RESPONDENT

AND

MANGROVES LIMITED
SECOND RESPONDENT

Before Chetwynd J
Mr Sugden for the Applicant
Hearing 9th July 2015
Decision 23rd July 2015

Decision following Rule 17.8 Conference

1. The Claimant is seeking judicial review of the decision of the Valuer General dated 11th November 2014. The Civil Procedure Rulesrequire the court to hold a conference and at that conference a decision has to be made to whether the case should proceed. This obligatory process is set out in Rule 17.8 and there are four matters which must be considered by the court. The Rules say:

17.8 (1) As soon as practicable after the defence has been filed and served, the judge must call a conference.

(2) At the conference, the judge must consider the matters in subrule (3).

(3) The judge will not hear the claim unless he or she is satisfied that:

(a) the claimant has an arguable case; and

(b) the claimant is directly affected by the enactment or decision; and

(c) there has been no undue delay in making the claim; and

(d) there is no other remedy that resolves the matter fully and directly.

(4) To be satisfied, the judge may at the conference:

(a) consider the papers filed in the proceeding; and

(b) hear argument from the parties.

(5) If the judge is not satisfied about the matters in subrule (3), the judge must decline to hear the claim and strike it out.

2. It is important to note Rule 17.8(3) is inclusive and cumulative in that it says the case must be arguable and one which directly affects the claimant who must also show he has not unduly delayed in bringing the case and that he has no other remedy available. If the Claimant fails to satisfy the Court on any one of those 4 points it must decline to hear the claim and strike it out.

3. The decision or determination which the Claimant is asking to be reviewed arises out of notices of forfeiture issued by the Claimant against Kwila Ltd ("Kwila") and Mangroves Ltd ("Mangroves"). The determination itself, by Mr Menzies Samuel the Valuer General, is annexed to the Claimant's sworn statement filed on 8th December 2014. There is no real dispute with the facts which led up to the determination being made. From the pleadings in Civil Case 22 of 2013 (a copy of the Statement of Claim in that case is annexed to the Claimant's sworn statement as well) reference is made to the several leases which were negotiated between the Claimant, his late brother Gerald and the two companies Kwila and Mangroves. That was in 2005 or 2006. The late Gerald ItaiLauto was the acknowledged custom owner of the land subject to the leases. Several of the leases were between the late Gerald ItaiLauto and the Claimant. The Claimant then transferred the leases to the two companies. When Gerald sadly passed away there was a decision by the Island Court that the Claimant was, "the inheritor of the custom ownership". The Claimant then entered into further leases with the two companies or at least one of them. The Claimant is unhappy with what the lessees are doing on the land and he issued notices before forfeiture. The notices are dated 11th July 2014.The lessees then contacted the Valuer General and the history of his involvement is set out in the sworn statement of Mr Samuel filed on 1st April 2015.

4. The provisions relating to forfeiture are set out in the Land Leases Act [Cap 163] from sections 43 to 46. In this case a notice (as set out above) was issued by the Claimant and the Respondents applied to the Valuer General for relief against forfeiture. They did that within a short time of receiving the notices and certainly within the time set out in the notices for rectifying the alleged breaches. There was correspondence between the Valuer General and the lessees. Documents were provided by the lessees and a determination made. It is dated 11th November 2014 and was sent to the Claimant, and others, on 13th November.

5. In his determination the Valuer General made findings about the nature of the leases, mentioned the Claimant's proceedings under Civil Case 22 of 2013 and a challenge by Richard ItaiLauto (Richard Pala) to the Claimant's rights in custom. Those rights were set out in the Efate Island Court decision dated 26th April 2011. After consideration of those matters he suspended the forfeiture proceedings.

6. In brief and general terms the Claim in this case is that that determination was made in breach of the requirements of natural justice, that there was a possibility of bias or the reasonable apprehension of bias, that relief was granted without a proper application being made by the lessees, that the Valuer General erred in law, that the Valuer General took into account irrelevant matters and that he exceeded his jurisdiction. The Claimant also seeks an order requiring the Valuer General to proceed to the next step and enforce the forfeiture notices. Of course that can only happen if they are not set aside.

7. In terms of Rule 17.8(3)(a), the first question to deal with is does the Claimant have an arguable case? It is not necessary at this stage to undertake a detailed examination of the merits or otherwise of the case. All that is required is that there is seen to be an argument or some issue or issues for the Court to consider. If there are issues then the requirement of Rule 17.8(3)(a) is satisfied, even if it is obvious the case to be argued is weak one. The strength of the case is not relevant at this stage in the process. In this case some of the arguments by the Claimant are palpably weak, for example he claims the Second Respondent did not apply for relief. However, there are issues raised which possibly have merit and so the inevitable conclusion is,in this matter there is an arguable case.

8. The next question to ask is whether the Claimant is directly affected by the determination or decisions of the ValuerGeneral? As the person who issued the forfeiture notices which the Valuer General was considering and which led to the determination being challenged, the answer would have to be yes.

9. Next the question of delay arises. In this case there has been no delay because the determination was issued on 11th November 2014 and the Claim for Judicial Review was filed on 8th December 2014.

10. The final question to be answered is whether there is another remedy available to the Claimant that resolves the matter fully and directly? The answer to that question must be a resounding yes for the following reasons. First, one looks at the determination that is being challenged. In simple terms the Claimant is asking the Valuer General to confirm the notices of forfeiture. If the Valuer General does confirm forfeiture then the leases will come to an end. What the Claimant wants is for the leases to be legally determined, or put another way, for them to be brought to an end. He has already commenced proceedings in the Supreme Court to achieve that by a different route. Civil Case 22 of 2013 deals with the exact same leases as are affected by the forfeiture notices. In Civil case 22 of 2013 the Claimant claims:

1. An order that the land Leases register be rectified by the cancellation of the registration of the transfer to mangroves Limited of leases........

2. An order that the Land Leases Register be rectified by the cancellation of the registration to Kwila Limited of the lease..........

This is exactly what the notices of forfeiture are designed to achieve, an end to all the leases. That the civil claim is based on fraud and/or mistake makes no difference to that conclusion. Another way to look at the question is will the Judicial Review proceedings survive a decision granting the relief sought in Civil Case 22 of 2013. In those circumstances the leases will no longer exist, the Respondents in Civil Case 22 of 2013 will have no interest in the land and there will be nothing to forfeit.

11. Counsel for the Claimant sought to distinguish the two types of proceeding on the basis that the civil case dealt with the creation of the lease whilst the forfeiture proceedings relate to the use of the land. The distinction is irrelevant. The test is whether there is another remedy which will resolve the matter fully and directly. As set out above the forfeiture process is aimed at ending the leases and the remedy being claimed in the civil case is the ending of the leases. If the suggestion is that the forfeiture process will somehow enable the Claimant to temporarily stop the use of the land pending forfeiture that is plain wrong. Even if it were possible to ask for a temporary stop on the use of the land pending a determination on forfeiture, a similar remedy would be available in the civil proceeding as well in the form of an injunction. Nor can the claim for compensation in the forfeiture proceedings be of any relevance because Civil Case 22 of 2013 also has a claim for damages.

12. It is also to be noted that Civil Case No 22 of 2013 was filed on 20th February 2013 some 21 months before the claim for Judicial Review was filed. Why hasn't the Claimant pursued the civil claim? Quite frankly he would do better by concentrating his energies (and his money) on dealing with a claim which is already before the Court and which will accomplish all and everything he seeks through forfeiture.

13. In all the circumstances I find that there is another remedy available to the Claimant which would resolve the matter fully and directly. Accordingly as I am not satisfied about all of the matters in subrule 3 of Rule 17.8 I must decline to hear the claim and strike it out.

14. I see no reason to depart from the usual practice that costs follow the event. The Claimant shall pay the costs of the Respondents such costs to be taxed on a standard basis if not agreed.

Dated: 23rd July 2015

Chetwynd J