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Raupepe v Raupepe [2000] VUCA 6; Civil Appeal Case 12 of 1998 (27 October 2000)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appellate Jurisdiction
CIVIL APPEAL CASE No. 12 OF 1998

BETWEEN:

ATHANAS RAUPEPE AND
DIANA ASSANOUMA
Appellants

AND:

ALFRED RAUPEPE AND OTHERS
Respondents

Coram: Acting Chief Justice Vincent Lunabek
Justice J. von Doussa
Justice D. Fatiaki
Justice R. Marum

Counsel: Mr. Julian Ala for the appellants
Mr. Mark Hurley for the respondents

Date of hearing: 25 October 2000
Date of Judgment: 25 October 2000

JUDGMENT

This appeal has been instituted against a judgment delivered on 25^th November 1998 by Saksak J in the Supreme Court sitting at Luganville. There has also been a Notice of Cross Appeal filed pursuant to the Court Appeal Rule 23. Both matters are before the Court.

The proceedings concern the ownership of two lots of land in Luganville. The land from the early 1980�s has been occupied and used by members of the Raupepe family trading through the name �Societe Raupepe�. It appears that in 1995 there was a falling out amongst the five brothers who are the senior members of the family, and the members of the family divided over the dispute. Dominique Raupepe and his family are at one extreme. Athanas Raupepe and his family are at the other extreme with at least one, and possibly up to three of the brothers sitting somewhere in the middle.

In 1995 steps were taken to have a registered negotiator appointed in respect of the land then wholly comprised in title 03/OH71/032. The land had not been registered prior to that time in the name of �Societe Raupepe�. Rather, it seems to have been under the legal control of the Minister of Land since about 1980 when the former French lessee of the land was deported.

Without going into details as to the events that have followed, in late 1998 there appeared to have been an administrative step taken within the Department of Land Records which had the effect of sub-dividing the land into two parts, each part comprising one allotment. Thereafter one allotment became registered in the name of Athanas Raupepe and his partner Diana Assanouma. That led to proceedings in the Magistrate�s Court for the eviction of certain other members of the Raupepe family who were then residing on the allotment � now covered by title 03/OH71/066.

Following those proceedings Civil Case No.6 of 1996 was commenced in the Supreme Court by Alfred Raupepe who, we are told, is the son of Dominique Raupepe on his own behalf and on behalf of a number of other people who were said to be in one way or another relatives or relative�s spouses of the interested group within the Raupepe family who were residing on the 03/OH71/066 allotment.

By amendment Mr. Dominique Raupepe and Mr. Francis Raupepe, two of the five brothers who were the original partners in the �Societe Raupepe� were joined as plaintiffs in Civil Case No.6 of 1996. The defendants were Athanas Raupepe and Diana Assanouma as first defendants, the Director of Land Records as second defendant and the former Minster of Land, Paul Telukluk, was the third defendant.

The plaintiffs sought declarations that the registration of title No.03/OH71/066 in the name of the defendants was invalid and should be set aside. Consequential orders for the rectification of the title and the registration of the plaintiffs as the registered proprietors of the land were sought.

The trial has had an unfortunate history. It started before one Judge who resigned his commission before the trial was finished, and the trial had to be heard again before another Judge. At the end of the day the second trial judge Saksak J made Orders that the Lease Title No.03/OH71/066 was a jointly owned by the plaintiffs, and the first named defendant should never had registered the property in their sole names. The Court ordered that the title be rectified, that the first defendants as the lessees be struck off the register, and that the names of all the plaintiffs mentioned in the Originating Summons be inserted as the new registered proprietors. Orders were made for costs in favour of the plaintiffs.

Against that Order the first defendants have brought this appeal. The respondents have filed a cross appeal seeking an order that Lease No.03/OH71/066 is null and void for reasons in addition to those that were given by the trial Judge.

When the argument in the matter developed before this Court it became clear that the membership of the �Societe Raupepe� was not subject to detailed evidence at the trial nor was that question investigated by the trial Judge. Furthermore the entitlement of the individual plaintiffs on whose behalf the action was brought was not investigated. The evidence does not satisfactorily explain how each of them might have obtained an interest in the propriety, and what interest that was. Accordingly the order made for the rectification of Title is not in terms that identifies each plaintiff�s entitlement.

More importantly however, it now appears that those who have claimed or are likely to claim an interest in the Title are not all before the Court, in particular Francois Raupepe and Joachin Raupepe are neither plaintiffs or defendants.

We have heard that there are a number of descendants of the people who either live on the property or might claim an interest in some way or another. They too should have notice of the proceedings. The defect in the proceedings is one that certainly could have been rectified at an early stage by ensuring that the �Society Raupepe� was joined as a party to the proceedings, and subject to the further step being taken of identifying the members at the relevant times of the society. Had that been done, the Court would have been in the position to be sure that all those who have an interest in the land, and had notice of the proceedings, could be heard if they wished and would also have been in a position to seek orders as to their respective entitlements (if any).

It is a fundamental procedural requirement in Court proceedings concerning the ownership of land that all people who claim, or are likely to claim, an interest in the land be before the Court. There were two reasons for that. The first, is the natural justice reason to ensure that those whose interest might be affected have the opportunity to be heard at the trial and to put whatever information they want to put in support of their position or against somebody else�s position. The second reason is that the judgment of the Court, because it determines for the world at large who owns the land, must be one that binds all those people who might have an interest in the land. A judgment would not bind those people unless they are before the Court as parties.

In a result, these proceedings have at no stage been properly constituted. The Court at trial, and this Court, are without power to make Orders which resolve the property interests of all those who might have interests in the land. The most regrettable consequence is that the judgment at trial cannot stand. Further this Court is without power now to impose some ultimate solution on the parties. The existing judgment will have to be set aside. The matter will have to go back to the first stage. The proceedings if they are to go forward will have to be put in order by the joinder at the least, of �Societe Raupepe�.

We anticipate that there is likely to be some dispute about the owners of allotment 03/OH71/065, the other subdivided position of the land. The evidence seems fairly clear that originally all the land belonged to �Society Raupepe�. If there has been a family dispute it is probably in the interest of everybody that, sooner rather than later, there be an agreement which divides the property.

The result of the judgement given by Saksak J would have been to put all the land into the name of Dominique Raupepe and his side of the family as in the meantime, we are told, Dominique has had title 03/OH71/065 registered in his name. If the judgment were allowed to remain, one side of the family would finish up with all the land. That hardly seems to be in accordance with the evidence that we have been taken to today.

Once it is realised that there is still a dispute over the Title 03/OH71/066, it is not unlikely that some of the other family members will realise that the dispute also involves the ultimate division and ownership of the land in Title 03/OH71/065 as well. There will have to a division of all the land in a way that achieves overall fairness between the parties. For that reason it seems to us likely that the parties, if they go ahead with this action, will need, by cross claim or otherwise, to raise the question of the entitlement particular members of the family to title 03/OH71/065.

As the judgment is to be set aside probably the less said about the merits beyond what has already been said, the better. However, the judgment of the trial Judge made findings of fraud in two respects and findings of administrative error in another respect. Each of those findings adversely impact upon the reputation of those involved. It is important therefore, beyond merely setting aside the judgment, that the Court make some comment on each of those matters. The comment that we make is simply and shortly this. We are not satisfied by the information to which we have been taken in the papers that any of those findings are justified on the evidence. It may be that a trial in due course with further and other evidence, may make findings on these topics, but the point we make at this stage is that the evidence before the trial Judge did not support the three findings that were made.

One finding was that Athanas Raupepe acted fraudulently while negotiating with the Minister because the Minister�s attention was not drawn to the interests of �Societe Raupepe� in the land. That finding seems to us to be contrary to Exh. P8 which was a letter written early in 1995 to the Department of Land Records advising of the interests of �Societe Raupepe� in the land. It cannot be said thereafter that the Department and the Minister in charge were dishonestly kept in the dark about �Societe Raupepe��s interests.

There is also a finding of fraud about a relationship between the Minister of Lands and the first defendants. In our view the evidence does not even raise a suggestion of fraud. There were some domestic negotiations or discussion about the supply of building materials between two relatives. The evidence suggests no more than dealings in the course of an ordinary domestic relationship.

The third matter is a finding of mistake by the Department of Land Records Office. The papers that we have been given suggest that the alteration to the registered negotiator certificate which lies behind this finding were not in any sense a mistake. The alteration was very deliberate to bring about a subdivision of the land. How or why the administrative decision to subdivide the land was made is not the subject of evidence, and no inferences can be drawn as to what happened. What is clear is that it was not a mistake. The decision to subdivide the land into two titles was then followed by alterations to the registered negotiator certificate that had earlier been registered in relation to the whole of the land.

We draw to the parties� attention that there is likely to be more than one deficiency in the parties presently joined in the action. It is not improbable that some of those who are presently named as plaintiffs do not have any proprietary entitlement to claim an interest in the propriety, and are not proper parties. It also seems likely that there may be other people who are members of �Societe Raupepe� that have or are likely to claim interests in the land who should be parties.

We draw the parties� attention generally to Order 17 Rule 2 of the Rules of the High Court (Civil Procedure) Rules 1964 which permits necessary amendment to be made. We will direct that �Societe Raupepe� be joined as a party but everyone involved must still consider whether other parties should be joined.

Order 51 permits an incorporated body like �Societe Raupepe� to be sued. We draw attention to the fact that Order 51 Rule 1 entitles any party at any time to apply to the Court for directions that people in charge of the incorporated body file a statement or affidavit setting out who were the members at any particular time.

If the parties at any stage in the continuation of the civil proceedings consider that they would be assisted by having a Judge of the Supreme Court case-manage the matter or assist in bringing the parties to the negotiating table, that facility will be made available by the Acting Chief Justice through one of the Judges of the Court.

The Court makes the following orders:-

1. The appeal is allowed.

2. The cross appeal is dismissed.

3. Order that there be an injunction restraining all parties and those claiming through them and any further parties who might be joined in the action from dealing in any way whatsoever with either Title 03/OH71/065 or 03/OH71/066 except with the leave of a Judge of the Supreme Court pending the resolution of Civil Case 12 of 1998 by either settlement or trial.

4. That Societe Raupepe be joined as a defendant in Civil Case No. 12 of 1998 with liberty to any party at any time to apply for directions under O.51 r.1 of the High Court (Civil Procedure) Rules 1964.

5. Liberty to all parties to apply on 3 days notice.

6. Copy of this Order to be served by the Sheriff on the Director of Land Records.

7. Order that the appellant recover its costs of this appeal from the first respondents.

8. Order the costs of the trial to date in Civil Case 12 of 1998 be costs in the cause.

9. Order that there be an injunction restraining each party in Civil Case 12 of 1998 from taking proceedings to eject any other party from possession of any part of the land in the said two titles unless otherwise ordered by a Judge of the Supreme Court.

DATED at PORT-VILA, this 27^th DAY of OCTOBER, 2000

ON BEHALF OF THE COURT

V. LUNABEK ACJ