Elisara v Attorney General [2004] WSSC 29 (25 June 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Taking of Land Act 1964

BETWEEN

PAULI ELISARA AND OTHERS
of Salelologa, Savaii
Plaintiffs

AND

THE ATTORNEY GENERAL
sued for and on behalf of the
HONOURABLE MINISTER OF LANDS, SURVEYS AND ENVIRONMENT
Defendant

Counsel: Mr S Toailoa for the plaintiffs
Ms B Heather-Latu and Ms L Mulitalo for Defendants

Decision: 25 June 2004

DECISION OF JUSTICE VAAI

Introduction

In 1997 the government negotiated with the chiefs and orators of the village of Salelologa the construction of a township at Salelologa on customary land covered by bush. It was agreed that 2,872 acres will be taken and to comply with the statutory requirements of the Taking of Lands Act 1964 a survey of the land was undertaken by the government surveyors with the assistance of the representatives of the Salelologa village. A certified copy of the plan showing the land to be taken was deposited and a public notice published in the Savali newspaper on the 25 November 1998 to comply with section 14A(d) stating the government’s intention to take the land for the township. As no objection was lodged in response to the publication a proclamation was prepared and executed by the Head of State on the 27th June 2000 and published in the Savali newspaper to comply with section 15. Pursuant to the proclamation the 2,872 acres of customary land originally owned by the chiefs and orators became vested in the government on the 27th June 2000; the date of the proclamation.

Salelologa village has seven foaiala or sub villages namely:

Falefia

Foua

Papaloa

Malaeta

Saletagaloa

Sapulu

Sakalafai

Each of the seven sub village had agreed to the taking of the land for the construction of the township and the quantum of compensation was left to be negotiated between the government and the chiefs and orators of Salelologa. Several meetings were held at Salelologa and at Apia commencing in February 2001 to negotiate amount of compensation and a delegation of matais appointed by the chiefs and orators of Salelologa represented the village during the meetings held at Apia. The meetings at Salelologa were held at Malaefatu, the traditional meeting place of Salelologa village.

The subject land is situated a very short distance from the Salelologa ferry wharf extending from the seashore inland. It is covered with virgin tropical bush and as such it is not only a hunting ground for native birds such as fly foxes and wild pigeons but is also home for valuable native trees like Ifilele, Kava, Malili, Magaui, Asi and others which have been depleted in other parts of the island through commercial logging and milling. It is not contested that at least two logging companies displayed interest in logging the native bush in the past; in fact one of them despite opposition from the village moved onto the land with the blessing and consent of one of the family of Salelologa with the purpose of logging. However before he commenced logging the village of Salelologa pursuant to a resolution of the village council destroyed beyond repairs the logging equipment, machineries, the family home and family graves by fire. A commission of Inquiry chaired by former Chief Justice St John was commissioned and although the findings and recommendations of the inquiry are in my view not relevant for present purposes it does show that this area of Salelologa land has a commercial and sentimental value and meaning to the village of Salelologa.

It is perhaps of and with knowledge of that particular incident in mind that the government ensured that negotiations were effected; protocols followed and the statutory provisions of the relevant statute were complied with before the land was legally taken for the township.

In fact it is not my function in these proceedings to determine whether the land has been legally taken. It is not an issue and it is therefore accepted that the statutory provisions have been complied with to the letter. The only issue for determination in these proceedings is the question of compensation.

Compensation

It is not disputed that the chiefs and orators of the village of Salelologa are the persons entitled to compensation. There were negotiations and several meetings took place between the representatives of the chief and orators of the village of Salelologa and the Minister of Lands Survey and Environment (“the Minister”) or his representative to discuss the amount of compensation. During some of these meetings large sums of monies were advanced to the chiefs and orators as part payment of compensation although the total amount was not yet agreed to.

On the 1st February 2002 a meeting between the village of Salelologa and the representatives of the government including the Prime Minister and the Minister was held at Salelologa. Government made an offer of $4 million tala which the tu’ua (chief or senior orator) as spokesperson for the village accepted. It was then also agreed that the oral acceptance of the offer of $4 million will be recorded in writing and executed by the representatives of the chiefs and orators of Salelologa and of the government. This was done on the 25th March 2002 at Salelologa.

It is not disputed that at the meeting held on the 1st February 2002 the tu’ua of the village of Salelologa accepted the government’s offer of $4 million tala as compensation and it is not disputed that the agreement was executed on the 25th March 2002. The balance outstanding of the $4,000,000.00 was then paid pursuant to the written agreement.

The Plaintiffs

By Notice dated the 24th April 2002 the chiefs and orators of Sakalafai sub village claim against the Minister the sum of $45 million tala as compensation for all loss arising out of the taking of the land, which sum is arrived at as follows:

2872 acres : 0 roods : 28.9 perches at $30,000 per acre.

Gross residual value = $86,160,000.00

Less Block Deduction = $41,160,000.00

Net Residual Value = $45,000,000.00

Total Claim = $45,000,000.00

They claim an undivided interest as joint customary owners with all the Alii and Faipule of the village of Salelologa. They were subsequently joined by the chiefs and orators of the sub-villages of Sapulu and Foua. List of the chiefs and orators together with their signatures of the three sub-villages of Sakalafai, Sapulu and Foua were produced in evidence and a representative from each of the three sub-village gave evidence. From the evidence adduced it is blatantly clear that some of those persons whose names appear on the lists as plaintiffs are either not aware of these proceedings at the time the lists were prepared and signed or not fully aware of the nature of the proceedings. Some of those persons have either died or are residing overseas and those who reside in Samoa were not consulted before their names were inserted at the time the lists were compiled. It is very probable that some of the signatures therein have been forged but it has no relevance to the issues and no bearing on my ruling.

The Plaintiff’s Claim

The plaintiffs say they are entitled to $45 million as compensation for their land. They rely on the two valuations which they commissioned and which places the market value of the land at between $44 million and $45 million as at the date of the proclamation.

In opposing the plaintiffs’ claim the defendant contends that the plaintiffs are estopped from proceeding with its claim on the basis that the plaintiffs and the defendants agreed to the quantum of compensation of $4 million which agreement was documented and executed and all monies totalling $4 million, owing by the defendant to the plaintiffs as compensation have been paid and accepted by the plaintiffs as full and just compensation. Essentially then the defendants argue that pursuant to section 26(3) of the Taking of Land Act 1964 the amount of compensation payable to the plaintiff can only be determined by the court in the manner provided by the Act if the parties cannot agree. It follows therefore that since the parties during their meeting of the 4th February 2002 agreed to a figure of $4 million as compensation and such an agreement was reduced to writing and executed by representatives of both parties then pursuant to section 26(2) such an agreement is binding on any other person (including the plaintiff) claiming an interest in that land under Samoan custom and usage. As a consequence the claim by the plaintiffs is repugnant to the spirit of the Taking of Lands Act and should be refused.

Section 26 provides:

(1) As soon as reasonably possible after the Minister is satisfied:

(a) That compensation has become payable under this Act; and

(b) As to the person entitled to such compensation, by reason, if the land taken or affected or suffering is customary land, of the matai having the pule thereover at the relevant date having been determined by an order of the Samoan Land and Titles Court, -

The Minister shall offer such sum as he thinks fit as compensation to that person and that person may agree with the Minister as to the compensation payable by the Minister.

(2) Any such agreement between the Minister and such a matai shall be binding on any other person claiming an interest in that land under Samoan custom and usage.

(3) If the compensation payable is not agreed upon be6tween the Minister and that person, it shall be determined by the Court and in the manner hereinafter prescribed.

In relation to the Agreement relied on by the defendant as binding on the plaintiffs it is the contention of the plaintiffs that the Agreement is not binding on them for several reasons namely:

(a) The Agreement was contrary to the resolution of the village council in which the village agreed to seek compensation of $40 million;

(b) The Agreement was not sanctioned by the village council; and

(c) Members of the village who signed the Agreement did so in breach of the express wishes of the majority of the chiefs and orators of Salelologa.

Before I turn to consider the Agreement I shall as a matter of courtesy and in fairness to counsels and the parties first consider the issue of just and fair compensation not only because a substantial portion of the evidence and the submissions adduced were directed at the issue of the quantum of compensation but there has also been in the past a number of lands at Salelologa and the surrounding areas or its vicinity taken for public purposes with an obviously apparent variations in the amounts of compensations paid bearing in mind similarities in the characters of the lands taken and particularly in my view the obviously mistaken beliefs and incorrect principles employed by officers of the department of Lands Survey & Environment in the assessment of compensation for customary lands taken by government for public purpose resulting in insufficient and unjust compensation paid to the owners of customary lands taken in the past for public purpose. I make this statement based on the oral evidence given at the trial and the documentary evidence provided by the defendant’s valuer of the compensations paid within the last twenty six years to customary land owners at Salelologa and surrounding areas for their lands taken by government for public purpose.

Assessment of Compensation

Section 25 Taking of Lands Act requires the Minister to pay fair and just compensation and section 26 requires the Minister to make an offer of such sums he thinks fit as compensation which may be accepted or rejected. If accepted the agreement is binding on the matai and any other person claiming an interest in the same land under Samoan custom and usage. If the offer of compensation is not accepted then the amount of compensation shall be determined by the court. It must be emphasised that in undertaking this exercise of determining the amount of compensation payable to the plaintiffs it is not to be presumed that an Agreement was not reached or that the Agreement reached on 1st February 2002 and signed on 25th March 2002 is not binding.

In fact if I find that an Agreement was in fact reached and made between the parties then the Agreement pursuant to sections 25 and 26 is binding on the parties and the court is precluded from entertaining any claim to compensation. I shall at a later stage in my judgment turn to consider the Agreement.

Valuation Reports

Generally in cases such as this one no land agent or valuer in the private sector has any tangible interest in straining the value of the property unduly downwards whereas most have a tangible interest in the uphill direction. I do not at all imply however that the two gentlemen who undertook the two valuation reports and gave evidence for the plaintiffs have not given their opinions honestly on data which they frankly state.

Yet in this case I am face to face with valuations ranging so widely from $45 million (submitted by the plaintiffs’ valuers) to $3.2 million as submitted by the government valuer. The only common feature about the valuation reports (although irrelevant for this exercise) is that all the three valuers claim they all graduated with the same degrees from the same University; the University of the South Pacific.

Two valuations of the land were done by the plaintiffs and the two valuation reports were produced by the two valuers who testified. Mr Tuiolopona was a former chief valuer for the Lands & Survey Department in 1990 to 1992. In April 2002 he valued the land for the plaintiffs. He did a physical inspection of part of the land where he observed the vegetation cover, ground structure and a general view of the area. As of the 9th April 2002 his market value of the land is $45 million which he derived by using two approaches. The comparative sales approach is the most common technique used and the most preferred when comparable sales in the area or its vicinity are available. Using that approach the report took into consideration three recent sales in the heart of Salelologa township. In 1998 Western Samoa Trust Estates Corporation sold to the then Bank of Western Samoa a vacant section of about half acre for $40,000. In 1999 WSTEC again sold to ANZ Bank (formerly Bank of Western Samoa) an adjoining section with improvements for $200,000 and in 2000 the same section was resold by ANZ to Ah Liki Investments for $250,000. Using the two comparable sales in 1999 and 2000 of the same section of land the average price for the land in 1999 was $320,000 per acre and $400,000 per acre in 2000. From these two amounts the valuer then deducted 91% on comparable basis to accommodate for unimproved and rocky nature of the land reducing the value per acre to $28,000 in 1999 and $35,000 in 2000. He then adopted $30,000 average per acre as the price the land taken could command which for 2872 acres amounts to $80 million ($86,160,000). By adopting the hypothetical subdivision approach he made a further deduction of 48% to take into account construction costs of public roads, power, water and other facilities so that the final value for the 2872 acres amounts to $45 million or $15,668 per acre.

This approach was checked against the capitalisation of rental approach and $45 million was again concluded to be the market value of the land.

The second valuer for the plaintiffs adopted the same approaches in arriving at a residual value of $44 million ($44,329,626.00) or $15,435 per acre by first considering the same sale transactions as in the first valuation report to determine a market price of $29,000 per of a vacant acre of land and applying a block deduction of 46.78%.

The government valuer did not consider necessary to do a physical inspection of the land but suffice to place a value for compensation purposes by perusing the survey plan, typographical maps and soil maps from the comfort of his office. He told the court that the value of the land in 1997 was $1.2 million. I accept from the evidence and concession of counsel for the defendant that no valuation report was done in 1997; it could not have been because the survey of the land commenced in 1997 and the survey plan was not approved until the 5th June 2000. But when he did his valuation the government valuer undoubtedly had the figure of $1.2 million firmly implanted and this inevitably influenced his valuation when told by his superior, the Director of Lands & Survey to value the land. He presented a written report dated 7th December 2000 and produced as exhibit in which he estimated the value of the land at $2.5 million based on past sales of lands and buildings in Salelologa area. In reality however the only sales that took place at Salelologa were the same ones referred to in the two valuations reports by the plaintiff and the other so called sales the government valuer took into account were the compensations paid for land taken under proclamations at Salelologa and surrounding areas for the last twenty six years. From these recorded transactions of compensations paid dating back some twenty six years to 1974 he calculated an average cost per square meter of land and applying that average to the 2,872 acres he arrived a value per acre of $1,225.40 or $3,519,642.90 for the whole land. He then deducted 5% for customary ownership; 2% for volcanic soil; 2% for low elevation contours; and 1% for undeveloped brining his final figure to $3.2 million.

Like his director the government valuer believed that the sales referred to in the plaintiffs valuation reports should not be considered as comparable sales because they were sales of fee simple in freehold whereas the subject land is customary land like all the other lands at Salelologa taken in the past by government under proclamation. And because customary land cannot be sold it has no market value.

I have very serious doubts about the integrity of the government valuer and as a consequence I must also consider his evidence with considerable suspect. In the first place he produced a so called valuation report in which he put a valuation of $2.5 million as at the 27 June 2000 but as a valuer he produced no calculation or methodology as to how he arrived at the figure of $2.5 million. He then recommended a price of not more than $3.2 million which he apparently arrived at by adopting the method I have earlier described so while he produced to the court his calculations as to how he arrived at his recommended price he produced nothing to show how he arrived at his valuation price. The simple truth is that the recommended price of $3.2 million is not his but of the township committee of which he is a member, set up within the department to recommend a price to the Minister. In the final paragraph of his so called valuation report he recommended a price of $3.2 million for the reasons that the village (of Salelologa) and the surrounding districts will benefit from the township when completed and the government’s financial and economic status must be considered. The two considerations are not only totally irrelevant but also a complete departure from reality. And when he alluded to considering the compensations paid within the last twenty odd years and calculating an average per acre it was a deliberate attempt by himself and others to justify the $3.2 million. When he admitted under cross examination that he ignored the two sales of freehold property in his estimation because it will result in a considerably high value and he might get a telling off, he was not exaggerating.

Secondly when the government valuer and his director told the court that the subject land is customary land and therefore has no market value it was a complete departure from the truth. On the 27th June 2000 by virtue of the proclamation the subject land lost all its characteristics and status as customary land and its fee simple was vested in the government. To keep referring to the subject land as customary land and should therefore fetch a lower price is in my view a deliberate ploy to avoid payment of full and just compensation. If current land value means fee simple and fee simple is inconsistent with customary status then it must be wrong to devalue fee simple for factors related to customary status.

I have already alluded to the government valuer deposing to compensations paid within the last twenty-six years to determine the value of the subject land. I cannot regard those as being of much use. None of the compensations were determined by the court. They were assessed on the basis they were customary lands when in fact at the date compensation was payable they were deemed freehold hold. Indeed there are so many factors which operate as an inducement to any particular dealing in land that it is unsafe for the court which cannot have full knowledge of all the circumstances to base its decision on those obsolete transactions. But the two transactions which have drawn my attention are the latest compensations paid in June 1995 recorded in the government’s valuer table of compensations paid for land at Salelologa and surrounding areas produced as exhibit “D4”. The first of these transactions is for about twenty seven and half (27½) acres taken at the village of Iva about three miles from the subject land. It was valued by the government at $100,000 ($3,636 per acre) and the full amount of $100,000 was paid. The second transaction concerned the taking of two and three-quarter acres (2¾ acres) at Salelologa and it was valued by government at $50,000 ($18,181 per acre). This land is by the sea and a walking distance from the subject land. But compensation of only $10,000 was paid yet this was developed land in the sense it had electricity, water and telephone services available. Despite the disparity in the valuation and compensation paid, the transaction speaks for the fact that in 1995 the government valued vacant land at Salelologa at around $18,100 per acre. Which means that by the year 2000 when the subject land was taken, the values of land at Salelologa due to its rapid growth as a township would have increased well beyond the 1995 value. And as both counsels agree the subject land being required for township will be sub-divided into smaller plots and sold or leased so that there is great potential for the uphill climb in land values bearing in mind however the deductions for costs of construction of roads, drainage, power, water and other amenities associated with construction of townships.

Using the government’s valuation of $18,000 per acre in 1995 for vacant land at Salelologa tends to support the valuation by the plaintiff of about $15,600 per acre rather than the defendant’s valuation of $1,114 per acre. I would have made a further deduction of about 15% from the plaintiff’s valuation on the basis that some plots of land from the resulting subdivision will be interior to others in terms of their locations and structure and will therefore be inferior in value but I am also mindful that the value of the commercial native timbers on the land was never determined or even considered when the defendant considered compensation.

I did earlier refer to unjust and insufficient compensation paid in the past to customary landowners and I shall now refer to one instance to make my point. I refer specifically to the two sales of land by WSTEC to the Bank of New Zealand in 1998 and to ANZ in 1999. The half (½) acre sold by WSTEC in 1998 for $40,000 and another half (½) acre sold in 1999 for $200,000 were part of ten (10) acres of customary land taken compulsorily by government in December 1979 for a public purpose. The two landowners were paid a total of $15,000 for the 10 acres or $1,500 per acre. (This transaction is recorded in the government’s valuer table of compensations produced as exhibit “D4”). So while the landowners received $15,000 for the 10 acres, WSTEC by reselling one tenth (1/10th) of the same ten (10) acres pocketed ten times more than what the original land owners received for their ten acres.

The subject land was customary land surrendered to government not for leasing but compulsorily taken for a public purpose and our constitution and legislation provides for full and just compensation. It is really the exchange value of the land which in reality is its market value. It is fundamental that the land must be valued in its state and status at the time of the taking. Under section 37 of the Taking of Land Act which corresponds to section 29 of the NZ Finance Act 1944 the value of the land is to be assessed at the amount which a willing seller might be expected to realise if the land was sold at the open market at the date of the taking. This is not necessarily the price which it would fetch because the costs of realisation will have to be taken into account. See Maori Trustee v Minister of Works (1958) 3 All ER 336.

The two comparable sales in 1999 and 2000 of the same section of land relied on by the plaintiffs valuers should not be regarded as the best and conclusive transactions to ascertain the fair value of the subject land. As there are so many factors which operate as an inducement to any particular deal in land it would be dangerous for the court without the benefit of all the surrounding relevant circumstances to base its decision on those two transactions. However, taking into account the deductions of 91% which the government valuer himself agreed were substantial deductions from the price of the transactions; and further deductions of 48% for the subdivision costs; and as well as taking into account the valuation by the government of nearby land in 1995 at $18,000 per acre and the potential increase in the land values resulting from the construction of the township I am of the view the valuations by the plaintiffs represents a fair market value of the subject land.

The Agreement

Before the meeting on the 1st February 2002 between the Alii and Faipule of Salelologa and the representatives of government there were several meetings between the two parties held at Apia and Salelologa. Varying amounts were offered and counter offered ranging from $1 billion and including free supply of electricity and water for the village residents.

Before the meeting on the 1st February 2002 at Salelologa the plaintiffs say the village met and agreed to offer to the government $40 million. This was done at the meeting through their chief orator (tu’ua) and spokesperson. But the Prime Minister as spokesperson for the government delegation counter offered with $4 million which the tu’ua as spokesperson for the village finally accepted after brief exchanges. It was then agreed that a formal written agreement shall be executed and the balance of the monies then owing shall be paid to the village. On the 25th March 2002 representatives of the government travelled to Salelologa to execute the agreement. It was executed by several matais of Salelologa. In June 2002 $500,000 was paid as part payment of arrears and in August 2002 the final payment of $500,000 was made. It is not disputed that $4 million has been paid to the village of Salelologa but the payment of the last two instalments of $500,000 each were made not to the seven foaialas of the village of Salelologa but to nine on the instructions and the influence of the then Minister of Justice who was a matai as well as the member of Parliament for Salelologa. I have not had the benefit of being informed by the evidence given why the two extra payees were added when the last two instalment payments were made and whether the recipients were in fact members of the Alii and Faipule of Salelologa. In any event the plaintiffs are not complaining to the court about the manner in which the last two instalment payments were made, although it was a cause of resentment within the village.

What the plaintiffs are complaining about is that the Agreement signed on the 25th March 2002 is not binding on the plaintiffs firstly because the village had resolved that it will take $40 million as compensation and their tu’ua as spokesperson had no authority to accept $4 million offered by the government. And secondly the tu’ua and ten other matais who signed the agreement on the 25th March did so in breach of the express wishes of the matais council of Salelologa.

Traditionally the Alii and Faipule of a village express their views or request through a spokesperson usually a senior matai or chief orator (tu’ua). In fact it is not in issue in this case that since February 2001 the Alii and Faipule of Salelologa on several occasion chose small groups of matais to travel to Apia to negotiate compensation with the government. The leader of these delegations was their spokesperson. There were offers and counter offers. When the representatives of the government travelled to Salelologa it met with representatives of all the seven foaialas of Salelologa and again the village spoke through its spokesperson. Such was the meeting of the 1st February 2002 when the chief orator as spokesperson for Salelologa accepted the government offer of $4 million and agreed to enter into a written agreement to be prepared by the government. That agreement was executed on the 25th March 2002.

One of the plaintiffs Pauli Apelu told the court that after the government left the meeting of the 1st February 2002 he and his foaiala of Satalafai then left the meeting because they were unhappy with the tu’ua accepting the government offer of $4 million. No one from his foaiala signed the Agreement executed on the 25th March. This same foaiala instituted these proceedings and were subsequently joined by two other foaialas of Sapulu and Foua.

Seumanu Tupea a senior orator from the foaiala of Sapulu was present at the meeting with government on the 1st February when the tu’ua accepted the government offer of $4 million. He conceded the tu’ua accepted the government offer of $4 million and although the village were unhappy they do respect their elders. A representative of his foaiala, the then
Minister of Justice did sign the Agreement.

Luamanu Poe is a chief from the foaiala of Foua who was present at the meeting with the government when the tu’ua accepted the offer of $4 million against the wishes of the village. He did not agree and his foaiala did not agree. But this same witness did sign the agreement because he said he happened to be around when the government representatives came to Salelologa with the Agreement; he signed the agreement without authorisation by his foaiala and without reading all of the Agreement. His foaiala was one of the recipients of the two instalment payments of $500,000 made by the government in June and August 2002. After the execution of the Agreement Luamanu Poe and his foaiala did not return the money to register their opposition to the Agreement but he and eighty other matais of his foaiala had no hesitation in joining these proceedings to seek more monies as compensation from the government. Luamanu Poe and others of his foaiala have obviously jumped on the bandwagon in an attempt to get more money.

Traditionally the tu’ua was the spokesperson for the village of Salelologa at the meeting with government when the $4 million was offered. In law he was the agent for the village and when the agent accepted the offer of $4 million he did so in the presence of his principals who did not intervene up to the time the Agreement was signed. And when the two instalment payments of $500,000 were subsequently made pursuant to the Agreement the village of Salelologa (including the foaiala of Satulafai who initiated these proceedings) did not reject the payments. It is in these circumstances I have difficulty in accepting the submission by counsel for the plaintiffs that the tu’ua had no authority to accept the $4 million offer and the execution of the Agreement was without village authorisation and the Agreement should therefore be set aside as it would be unconscionable to treat it as a binding agreement. It is very apparent that the disagreement concerning the Agreement is not with the government but amongst the chiefs and orators of Salelologa.

Indeed for the doctrine of unconscionability to be successfully argued the plaintiff must produce evidence to show defective negotiations; that is something happened during the negotiating period which makes it unconscionable for the defendant to insist on the Agreement. Regrettably there is not the slightest suggestion in the evidence that the representatives of the defendant took advantage of the plaintiffs’ particular vulnerability or lack of understanding such that it would be unconscionable to take the benefit of the contract. The plaintiffs were certainly not under a serious disadvantage during the negotiations.

As a result of my findings it is my conclusion that the Agreement is a binding agreement. Pursuant to sections 26(1) and (2) the Agreement binds the Chiefs and Orators of Salelologa and any other person claiming an interest in the land under Samoan Custom and usage. The plaintiffs claim must accordingly fail.

On the question of costs, it is normally the practice that the unsuccessful party pay the costs of the other party. In the circumstances however bearing in mind the history and nature of these proceedings I will not make any order as to costs.

JUSTICE VAAI