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Jacques Naturel & Societe Naturel Freres v Nicolas [1969] VUNHJC 6; Civil (A) 13 of 1969 (19 September 1969)

JOINT COURT OF THE NEW HEBRIDES.
JUDGMENT No. (A) 13/69
of the 19th. September, 1969.

PUBLIC HEARING on the 19th September, 1969.

THE JOINT COURT OF THE NEW HEBRIDES sitting at the Courthouse, VILA and composed of:

Georges GUESDON, French Judge, President
Janes P. TRAINOR, British Judge,
assisted by Mr. E. BUTERI , Registrar.

delivered the following Judgment:-

JUDGMENT.

BETWEEN:

Mr. Jacques NATUREL, Planter, at present residing at NOUMEA, New Caledonia and the Society NATUREL FRERES, represented by their Manager residing at his Offices.

APPLICANTS,

for the rectification of Land Title No. 458 relating to L'ILE AISSE by the substitution of them to the SOCIETE FRANCAISE DES NOUVELLES-HEBRIDES declared to be the owner by an order of registration of the said property and to the Consorts PETERSON-STUART inscribed on the Title as Assignees or the SOCIETE FRANCAISE DES NOUVELLES-HEBRIDES,

PLAINTIFFS

represented by Mr. LEDER, Counsel

of the Court of Appeal at NOUMEA.

OF THE ONE PART,

AND:

1. Mrs. Gabrielle NICOLAS, widow of Paul PETERSON-STUART, Plantation Manageress, residing at SANTO,

2. Mr. Raymond COULON, residing at SANTO,

3. Mrs. Rose-Marie PETERSON-STUART, wife of Emile PONTET, residing at LAVERGNE (Lot & Garonne) having as her Attorney Mrs. Paul PETERSON-STUART, widow, residing at SANTO,

4. Mr. Maxime Robert Elie COULON, residing at ORSONVILLE (Seine & Oise) having as his Attorney Mrs. Paul PETERSON-STUART, widow, residing at SANTO,

5. Mr. Robert Denis COULON, residing at SANTO,

6. Mrs. Noëlle Marie Odette PETERSON-STUART, Typist, wife of Georges CRONSTEADT, residing at SANTO,

7. Mr. Robert Paul Roger PETERSON-STUART, Culture Employee, residing at SANTO.

Summoned by Verdon Germain, Bailiff at SANTO on the 9th. October, 1968.

8. Miss Simone PETERSON-STUART, Business Employee, residing at NOUMEA,

9. Miss France PETERSON-STUART, Business Employee, residing at NOUMEA.

Summoned by PENE Marcel, Bailiff of the Courts at NOUMEA on the 10th. October, 1968.

10. Mr. Camille Raymond COULON, employed at the Mesaageries Automobiles, residing at NOUMEA.

Summoned by PENE Marcel, Bailiff at the Courts of NOUMEA on the 6th. November, 1968.

11. The Director of the SOCIETE FRANCAISE DES NOUVELLES-HEBRIDES, residing at his Offices at VILA,

Summoned by MAURAIT Rene, Bailiff at VILA on the 22nd. October, 1968.

DEFENDANTS,

represented by Mr. Armand de PREVILLE,

Counsel at the JOINT COURT OF THE NEW HEBRIDES.

OF THE OTHER PART.

Having heard what was offered at the hearing of the 3rd. December, 1968, and having considered the pleadings of Counsels Mr. LEDER and Mr. Armand de PREVILLE:

PURSUANT to a decision of the Court of Appeal of NOUMEA dated the 30th. July 1968 Jacques NATUREL and the SOCIETE NATUREL FRERES have cited the Director of the SOCIETE FRANCAISE DES NOUVELLES-HEBRIDES (hereinafter called S.F.N.H.) of the one part, and the Consorts PETERSON-STUART here-above more fully described, of the other part, to have the register of land titles in the New Hebrides amended in so far as it concerns the property ILE AISSE situated at SANTO and the object of a registered title No. 458, established in the name of the S.F.N.H. by an order of registration of the ILE AISSE in favour of the S.F.N.H., made, it is alleged, in ignorance of the rights in the property of the SOCIETE NATUREL FRERES who had acquired the ILE AISSE before the order for registration by a transfer on sale dated the 23rd. March, 1929. The plaintiffs claim to be entitled as owners to request the substitution of the SOCIETE NATUREL FRERES to the S.F.N.H. and those who claim to be their successors in title by reason of an instrument of sale dated the 3rd. August, 1966, and who are entered on the title as the Consorts PETERSON-STUART. They say that by reason of the difficulties of communication at the particular time the SOCIETE NATUREL FRERES could not bring to the attention of the Joint Court the instrument of purchase of the 23rd. March, 1929 before it ordered registration, and the SOCIETE NATUREL FRERES finds that it must now fulfill the conditions imposed, both by the decision of the Joint Court of the 27th. September, 1927 and Article 27 (1) of the Anglo-French Protocol of the 6th. August, 1914, to have established its rights in the property which were unrecognised for the reason referred to. They state their claim to the property L'ILE AISSE to be well founded on the basis of French law, applicable in this case, and unanswerable on two grounds: on the one hand, that the property was validly sold on the 23rd. March, 1929 to the SOCIETE NATUREL FRERES by the SOCIETE ROBERT STUART & CIE. which, according to its constitution of the 24th. March, 1927, had received it as capital from ROBERT PETERSON-STUART. Robert PETERSON-STUART had acquired the property himself on the 31st. January, 1926 from the COMPAGNIE FRANCAISE IMMOBILIEE DES NOUVELLES-HEBRIDES, at the time the exclusive Agent for land matters of the S.F.N.H. On the other hand, that the sale of the 23rd. March, 1929 having been confirmed by a judgment of the Cour d'Appel of NOUMEA of the 19th. July, 1966 in a matter between the parties is now final on the principle that the matter being res judicata, all further discussion as to its validity is barred.

S.F.N.H. appeared in the case, but left the matter to the decision of the Court, pointing out that the sale by it to the Consorts PETERSON-STUART-COULON of the 3rd. August, 1966 was nothing more than the fulfilment of an obligation to which it considered itself bound as the Vendor in 1926 of L'ILE AISSE to Robert STUART, to enable his heirs, the Consorts PETERSON-STUART-COULON to exercise the rights conferred in 1926 on their predecessor in title or fulfill the obligations which he had previously contracted with regard to L'ILE AISSE.

The Consorts PETERSON-STUART-COULON have pleaded and argued, that if they did not intend to discuss the appropriateness of a possible application of Article 27 (C) of the Protocol of the 6th. August, 1914, they did nevertheless ask the Court to say that the Plaintiffs never complied with the conditions necessary to obtain their substitution to S.F.N.H. in the proceedings for registration of L'ILE AISSE and contested, straightaway, the existence and, as a result, the regularity of the alleged sale of L'ILE AISSE on the 23rd. March, 1929 by the SOCIETE ROBERT STUART & CIE. to the SOCIETE NATUREL FRERES which is fundamental to the claim for rectification. According to the Consorts PETERSON-STUART-COULON the proof of the existence and the regularity of the said sale ought to be established by the Plaintiffs other than by the production of the decisions of the Cour d'Appel of NOUMEA of the 19th. July, 1966 and 30th. July, 1968 which would not have the authority of a res judicata so far as the validity of the alleged sale is concerned, the grounds of the decisions in this respect being no more than a recapitulation of the outline of the facts as they seemed to appear from the documents on the file, being in no way connected with the operative portion of the Judgments.

They further set out that if on the 23rd. March, 1929, after the death of Robert PETERSON-STUART, the principal partner in the SOCIETE CIVILE ROBERT STUART & CIE. which he had formed with Messrs. BONNEAU, DEBECHADE, CHAPUIS and WRIGHT on the 24th. March, 1927 to exploit L'ILE AISSE brought into the Société by him, the four surviving partners sold L'ILE AISSE to the SOCIETE NATUREL FRERES, they made the sale the subject to an undertaking whereby the said four vendors undertook to obtain the ratification of the sale by the fifth partner, that is to say, the heirs of Robert PETERSON-STUART - of the ten recognised NATUREL children, only one was adult - who received as inheritance from the latter the 96% of the capital created at the formation of the Société which belonged to him; but this sale would be ineffective without being ratified by the heirs of ROBERT PETERSON-STUART, at least without being lawfully ratified.

The Consorts PETERSON-STUART-COULON have contested the validity of the documents produced at the hearing by the Plaintiffs to establsih this ratification, contending that they are simply photostats and that no signature appears on the photostats of the Minutes of the General Meetings of the SOCIETE ROBERT STUART CIE. (containing, according to the Plaintiffs, the proof of the disputed ratification) in particular on the Minutes of the General Meeting of the 14th. February, 1930 (according to which a Monsieur Jean NOELLAT, purporting to represent all the Stuart heirs, both major and minor, gave his approval to the sale of the 23rd. March, 1929) or on the Minutes of the 2nd. May, 1930 (at which the same Jean NOELLAT approved the presentation of the reports and, thus the grant to the successors of Robert PETERSON-STUART of the nett capital belonging to him, and voted with the other surviving shareholders for the dissolution of the Société).

This lack of signature gives rise to the conjecture, in the absence of the production of the originals, that nothing was established but simple drafts for consideration. They plead, in addition, that the production of the originals (promised at the hearing by Counsel for the Plaintiffs) would show their error in that:

1. Jean NOELLAT had not the right to represent the heirs of Robert PETERSON-STUART at the General Meeting of the SOCIETE ROBERT PETERSON-STUART & CIE. not being an heir of Robert PETERSON-STUART, because Article 16 of the Articles of Association provided that the heirs of each deceased partner should be represented by one of the heirs appointed by all;

2. No proof was produced that he had properly the power of guardian of the minor STUART heirs or of those other heirs of STUART who had then attained majority;

3. None of the formalities required by French Law for the sale of immovables of which minors are the owners or co-owners had been fulfilled.

After the lodgement of original documents by the Plaintiffs in the Registry of the Joint Court when the matter was en délibéré (particularly of the signed Minutes of the General Meeting of the 14th. February and the 2nd. May, 1930) the Consorts PETERSON-STUART-COULON have by a note "en délibéré" of the 14th. April, 1969 submitted that it results from the documents produced:

1) that the partner CHAPUIS had been represented at the said General Meetings by a so-called Attorney the authority of whom was not established, although the Articles of Association do not provide for the possibilty of a partner being represented at General Meetings by a third party, a stranger to the Société;