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Supreme Court of Vanuatu |
IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No. 186 of 2003
BETWEEN:
TOM VIOLET, JIMMY VIOLET, HELEN VIOLET
AND AUGUST VIOLET
First Claimants
AND:
FAMILY KALMASE
Second Claimants
AND:
MICHAEL HOCTENE AND LINA HOCTENE
First Defendants
AND:
DIRECTOR OF LAND RECORDS
Second Defendant
AND:
MINISTER OF LANDS
Third Defendant
Coram: Justice P. I. Treston
Mr. Kabini for Claimants
Mr. Yawah for First Defendants
Mr. Gilu for Second and Third Defendants
Dates of Hearing: 18, 19 & 20 May & 17 June 2005
Date of Judgment: 4 July 2005
RESERVED JUDGMENT
CLAIM
In an amended claim, the First Claimants alleged that they acquired the land in title 12/091/404 from the Second Claimant through custom.
The Second Claimant alleged that he is the undisputed custom owner of the land. The First Defendants are leaseholders of the land pursuant to a lease issued by the Second and Third Defendants and registered in June 2003.
The Claimants alleged that the lease was obtained by mistake or fraud and sought rectification of the lease register.
In the particulars of claim, it was alleged that Second Claimants gave permission for the First Claimants to live on the land since 1980. In 1983 and 1987, the First Claimants alleged that they lawfully through custom acquired the land from the Second Claimants. In May 2001, the lease was approved by Minister of Lands and it was registered in 2003. However, it was alleged that the lease being issued for 75 years at VT50, 000 per annum was so issued without discussion, negotiation, consultation or agreement with the Claimants and that the amount of lease rental of VT50, 000 per annum was on its face a fraud or mistake.
The Claimants alleged that the lease was given to the First Defendants at the costs of the Claimants and that the Third Defendant either was mistaken or deceived into registering the lease and that the Second Defendant was bribed by the First Defendants and the First Defendants deceived or fraudulently forced the Second Claimants into signing the lease.
By way of defence, the First Defendants claimed that they did not know who the true custom owner of the land was and they denied obtaining the lease by mistake and denied that the First and Second Claimants were entitled to the relief sought.
The Second and Third Defendants admitted that the lease was registered but denied that it was obtained by fraud and that any particulars alleged, if proved be true, were outside their responsibility.
The Second and Third Defendants effectively were prepared to abide by the decision of the Court and indicated that they would rectify the registered lease if the Court so ordered.
FACTS.
Although much of the evidence produced by the Claimants was technically hearsay, it seems that the father of the Claimants and of the First Defendant Lina Hoctene, who are in fact all brothers and sisters, had entered into a custom arrangement with the father of the Second Claimant, Andre Ben, for the right to use the land. Although there was some divergence in the evidence as to whether or not the particular piece of land was the original land concerned, it seems that it was. The Violet family came to live on Efate, and in particular on the land, from Tanna in the early 80's and gradually the whole family came to reside on the land.
The witness for the Second Claimant Mr. Andre Ben, who is now the senior member of the Kalmase family, being the last surviving male, confirmed that he was the custom owner of the land on behalf of his family. He confirmed that when his father was young he worked as a policeman on Tanna and knew the Violet family and, as his eldest son had been looked after by the Violet family on Tanna, his father had said that the Violet family could come over to Efate and that he would give them land to live on by a custom settlement.
Mr. Andre Ben confirmed that the only variation to that custom arrangement for the Violet family to live on the land was that his older brother, before he died, arranged with the family to pay VT50, 000 per annum to his family because they were partly using the land for commercial purposes in renting out accommodation.
That amount of VT50, 000 was paid in 1998 and 1999 by the First Defendant Michael Hoctene but then his payments ceased.
Mr. Ben confirmed that as the leader of the Kalmase family he was still prepared to honour the custom agreement between his family and the Violet family as to their use of the land and that he had signed the lease in question without knowing what he was signing and that he had had no prior negotiation with the First Defendants before signing the lease. He said there had been no discussions about payment of the VT50, 000 and that after signing of the documents, he was expecting to get a copy of the papers but had received no payment of VT50, 000 after the signing of it because on the one occasion that the First Defendant Michael Hoctene came around to pay for the lease, Mr. Hoctene was drunk and he declined to accept payment of the money.
Mr. Ben then said that he owns other land, which has been subdivided into 18 blocks and that he had had previous dealings with the Second Defendant and his officers concerning those blocks and had paid money from time to time to Mr. Simeon. He denied having any prior negotiations with the Hoctenes as to the terms of the lease and said that he signed the papers without knowing what was in them and without having them explained to him.
Mr. Paul Simeon was previously employed by the Land Department as a lands officer for a period of 10 years between 1994 and 2004 and was the officer involved in the lease concerned. As the land was not in dispute, he drafted up the lease and explained the content of it to Mr. Andre Ben and there had been an earlier meeting between Mr. Ben and the First Defendants to discuss and negotiate the content of the lease. That was when the annual rent was agreed. He said that had he known about the custom settlement, he would not have drafted up the lease and that he was mistaken in preparing the lease. He was also adamant that Mr. Ben had accepted the document and was not forced to sign it. He said that there was a negotiator's certificate and at first Mr. Ben was confused between that and the actual lease but he was given an explanation.
VT50, 000 was brought in to the Department by Mr. Michael Hoctene on the day after the signing of the lease and Mr. Simeon arranged for Mr. Ben to come in and collect it. The money was for rental and was not a premium.
Mr. Michael Hoctene, although he had been associated with the Violet family since 1981 when they first came to Vila and in fact had married the eldest daughter Lina Hoctene the other First Defendant, said that he had heard stories about the custom arrangement but said "could not see it". He married Lina when she arrived in 1981.
Lina Hoctene denied that her father had ever told her about the custom agreement as to the land and she said she did not know why the Violet family was allowed to stay there. She said that the custom agreement may have happened but she did not know about it and that when they had come to Efate in 1981 her father had already been living on the land when she arrived. She and her husband had applied for the lease of the land as far back as 1997 and VT50, 000 was to be the yearly payment for the lease.
SUBMISSIONS
A date was set for the making of closing addresses but counsel for the Claimants and the First Defendants saw me in chambers to indicate that they had settled the proceeding. The settlement was one with which I agreed but nevertheless counsel asked the Court to deliver a full decision with reasons for their future reference which I now do.
LAW
This is a civil case and the Claimants have the burden of proving their allegations on the balance of probabilities.
Rectification by the Court of any lease is provided for by section 100 of the Land Leases Act [CAP 163]. That provides as follows: -
"RECTIFICATION BY THE COURT
FINDINGS
Having seen and heard the witnesses, I am sorry to report that there has been much prevarication and obfuscation by a number of the witnesses for both sides in this trial.
In addition, the Claimants were odds with each other, to the extent that it was alleged and submitted by the Claimants that the First Claimant, the Violet family, became the custom owners of the land. That was clearly not the case, and even the Second Claimant's witness Mr. Andre Ben confirmed that he remained the custom owner of the land. Even Mr. Tom Violet, one of the First Claimants, said that he believed that the Second Claimants had the right to issue a lease. I am certainly satisfied that that was the case. The Violet families were never the custom owners of the land.
Having heard the evidence, I am also satisfied on the balance of probabilities that there was a custom agreement between the elder members of the First and Second Claimants prior to the early 80's under which the Kalmase Family agreed that the Violet Family could have the right of use the land. Mr. Andre Ben confirmed that custom agreement and was prepared to uphold it and I do not accept the evidence of the First Defendants that they did not very well know about that custom agreement. Mr. Michael Hoctene, to his credit, conceded that he had heard of the agreement, however, I do not accept the evidence of Lina Hoctene that she had never heard of it. The existence of the agreement was confirmed by the evidence for the First Claimants, by the unequivocal evidence of the Second Claimants and by the independent evidence of Johnny Kapalu.
I also do not accept the evidence Mr. Andre Ben on behalf of Second Claimants that he was not aware that the document that he was signing was a lease of the land to the First Defendants. I find as a fact that, as Mr. Simeon said, there was a negotiator's certificate for the land and that there had been a meeting between the parties including Mr. Ben and the First Defendants prior to the signing of the lease on 30 April 2001. Certainly, the First Defendants and Mr. Andre Ben attended the Land Records Office at different times on that date but I find that there had been an earlier meeting when the lease and its terms had been discussed.
However, I accept the evidence of Mr. Simeon that he had not been told of the rights of the First Claimants to occupation of the land and of course coincidentally that right extended to Lina Hoctene as well. Clearly, on the evidence of Mr. Simeon if he had known about that he would not have prepared the lease and arranged for its execution. That was a mistake in terms of section 100 (1) above and the registration of the lease was made by the Third Defendant as a result of that mistake.
I am of the view that the First Defendants cannot take advantage of section 100 (2) where the register shall not be rectified to defeat their title because, although the First Defendants are in possession and acquired the interest for valuable consideration, I am satisfied on the evidence that they had knowledge of the mistake in consequence of which a rectification is sought and that they at least substantially contributed to that mistake by their actions. As I have said I do not accept the evidence of First Defendants that they did not know about the custom arrangement. Clearly they tried to defeat the rights of the First Claimants by their actions.
As to the Second Claimants' contention that the lease was a fraud on its face because of the purchase price, that simply does not accord with the evidence. Mr. Andre Ben on behalf of the Second Claimants acknowledged the custom arrangement and said that the only variation to it was the one made by his late brother when it was arranged with the First Claimants that they would pay VT50, 000 each year by way of rental because of the commercial elements of their occupation and the lease and its terms simply records that arrangement. It is not unfair either to the First Claimants or the Second Claimants in the circumstances of the custom settlement and it is my view that the interests and rights of the First Claimants are best protected by the lease being rectified to include the direct descendants of the late Iauko Violet who was the initial beneficiary of the custom arrangement with the late Ben Kalmase.
Effectively the mistake was not including the First Claimants on the lease and in including Mr. Michael Hoctene, one of the First Defendants therein.
I do not find on the evidence that Second Defendants were bribed by the First Defendant nor that the First Defendants fraudulently forced the Second Claimants into signing the lease. That is simply not borne out by the evidence.
Much of the evidence at trial was directed towards the question of who had paid for the erection of the building on the land. The First Claimants said that monies had been sent from Noumea by Jimmy Violet to his mother to finance the erection of the building. The First Defendants on the other hand produced receipts through Line Hoctene to indicate that it was she and her husband, Michael Hoctene, who had paid for the erection of that building. Actual findings in relation to that are not necessary for the determination of the issues in this case. It is clear that both of the First Defendants looked after and cared for the siblings of Mrs. Hoctene when they were younger but that does not give them any additional rights over the land that they claim under the lease. The custom arrangement was between the Violet family and the Kalmase family.
CONCLUSION
I am satisfied, therefore, on the balance of probabilities, that the First Claimants have made out their case and that there should be an order rectifying the lease register. I direct that the existing registration be amended to show that the lessees are Lina Hoctene (nee Violet), Tom Violet, Jimmy Violet, Helen Violet and August Violet. The First Defendant Mr. Michael Hoctene must be removed from the lease but of course can rely upon and have the benefit of the rights of the other First Defendant, his wife, Lina Hoctene.
COSTS
The parties agree that costs should lie where they fall.
Dated AT PORT VILA, this 04 day of July 2005
BY THE COURT
P. I. TRESTON
Judge
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