Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Ifira Trustees Ltd v Kalsakau; Kalsakau v Kalsakau Warakali [2008] VUSC 25; Civil Case 183 of 2006 & Civil Case 56 of 2006 (7 March 2008)

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

CIVIL CASE NO. 183 of 2006

BETWEEN:

IFIRA TRUSTEES LIMITED
of Port Vila, Efate
Claimant

AND:

KALPOKOR KALSAKAU and others
Defendants

___________________________

CIVIL CASE 56 of 2006

BETWEEN:

NARU KALPEAU KALSAKAU
Claimant

AND:

FAMILY KALSAKAU WARAKALI Represented by IAN KALSAKAU,
JOSEPH KALSAKAU, STEPHEN KALSAKAU, JOSHUA KALSAKAU
First Defendants

AND:

KALPOKOR KALSAKAU, EPHRAIM KALSAKAU, YOAN KALSAKAU
& SERETANGI KALSAKAU
Second Defendants

AND:

THE GOVERNMENT OF VANUATU
Third Defendant

Mr James Tari for Claimant, Ifira Trustees Limited in CC 183 of 2006
Mr Edward Nalyal for the Family Kalsakau for the Defendants in CC 183 of 2006 and for the First and Second Defendants in CC 56 of 2006
Mr Tom Joe counsel for the Third Defendant in CC 56 of 2006

Date of hearing: 14 December 2007
Date of oral judgment: 14 December 2007
Date of written reasons: 07 March 2008

REASONS FOR JUDGMENT

On 21 November 2007, the Court hold a Conference to manage the substantive cause of action in Civil Case No.183 of 2006 and CC 56 of 2006 which were consolidated by Order of this Court.

In the course of the Conference management the question was raised whether or not the Claimant, Ifira Trustees Limited as a corporate body, has an interest in the land located at Malapoa Point, Port-Vila, Efate, the subject of a Lease Title 12/0911/332, constituting the basis of a claim under Section 100 of the Land Leases Act [CAP.163].

That question was raised as a preliminary question of law to be determined. Counsel were required to make submissions on that point.

That matter was adjourned to 28 November 2007 for hearing at 3.30PM o’clock. On 28 November, it was apparent that the relevant legislations and Memorandum of Association of the Claimant Company, were not provided.

The hearing was then adjourned to 29 November 2007 at 8.30AM o’clock. The hearing progresses on the morning of the 29th November 2007.

It is noted that the Claimant Company filed a Supreme Court claim dated 9 October 2006 seeking for specific relief. The claim and particulars are set out below:

"1. An Order of rectification of the lease register by cancelling the registration of Lease Title 12/0911/332 pursuant to section 100(1) of the Land Leases Act [CAP.163].

2. The First Defendant is the Family Kalsakau who are also beneficiary of the Claimant trustee.
   
3. The Second Defendant is the Government of the Republic of Vanuatu who has overall responsibilities over the approval and registration of leas titles.
   
4. On or about 1978, there was a declaration of trust for the Claimant to have land management of various land owned by the people of Ifira Island including all those lands at Malapoa Peninsula.
   
5. The Claimant pursuant to the 1978 declaration manage the various lands on behalf of all the people of Ifira Island including the land at Malapoa Peninsula.
   
6. On or about 1996, there was a claim lodged in the Efate Island Court and registered as Land Case No.5 of 1996 over those lands at Malapoa Peninsula.
   
7. On or about May 2005, the Efate Island Court transferred Land Case No.05 of 1996 to the Land Tribunal for determination of ownership.
   
8. On or about the 2nd of March 2006, the Supreme Court in civil Case No.116 of 2005 and Supreme Court in Civil Case No.154 of 2005 confirmed that there is evidence that the land at Malapoa is still in dispute.
   
9. When Land Case No.05 of 1996 was registered in 1996, the Claimant ceased to deal with the land at Malapoa Peninsula for reason that there is a dispute over the area.
   
10. On or about 2nd of March 2006, the Supreme Court, among other orders, refused to order the Minister of Lands to sign the lease of the Second Defendant as it is premature.
    
11. On or about the 10th of March 2006, the First Defendant obtained registration of Lease Title 12/0911/332 by fraud.
    

PARTICULARS OF FRAUD

1. The First Defendant knowingly and with full knowledge that there is a dispute over the particular land, dishonestly went ahead and wrongfully informed the Second Defendant to approve and register Lease Title 12/0911/332.
2. The lease was approved and registered by the Second Defendant on false information provided by the First Defendant.
   

12. On or about the 10th of March 2006, the First Defendant obtained the registration of Lease Title 12/0911/332 by mistake.
    

PARTICULARS OF MISTAKE

1. There is a registered dispute over Lease Title 12/0911/332.
2. The Minister of Lands did not sign the lease on behalf of the disputing owners in Land Case No.5 of 1996.

100. Lease Title 12/0911/332 was signed in breach of Section 8 of the Land Reform Act [CAP.23].

4. The lease is between the Kalsakau family as lessors and Kalpokor Kalsakau, Ephraim Kalsakau, Yoan Kalsakau and Seretagni Kalsakauas Lessee".
   

I have the benefit of hearing and reading submissions of counsel. All parties agree that the land the subject of leasehold Title No.12/0911/332 is a custom land. A lease had been issued to the First Defendants (Family Kalsakau) on the said land on 13 March 2006. On 9 October, the Claimant Trustee issue a Supreme Court claim seeking to invoke Section 100 of the Land Leases Act [CAP.163] ("the Act").

Is the Claimant Trustee having an interest to invoke Section 100 of the Act?

Depending on the nature of the relief the Claimant Trustee is seeking, the Claimant Trustees, as a corporate body, will in general have a locus standi when the company can show actual or apprehended injury or damage to its property or proprietary right, to its business or economic interest.

In Naflak Teufi Ltd & Kalman Kiri Manlangai; VUCA 15; CAC 07 of 2004 (18 November 2005), the Court of Appeal is satisfied that the object of Section 100 of the Land Leases Act [CAP.163] is to ensure that the land register and the process leading up to the registration of any instrument or interest is free of any mistakes, fraud or possible fraudulent activities. In other words, its purpose is to secure the integrity of the Register and the internal processes culminating in registration (p.4).

The Court of Appeal further says that a person seeking to invoke Section 100 must include a person who has an interest in the register entry sought to be rectified and which it claimed was registered through mistake or fraud. There must be proof of the mistake or fraud and also that such a mistake or fraud caused the entry to be registered.

I have perused the Memorandum of Association of the Claimant Trustee dated 13th April 1978 and a Declaration of 1978 of Ifira Island Community acting through the Chief and his Council and the Land Committee of Ifira Island that in accordance with the custom of their community, they have decided to vest the legal ownership of the lands described in the schedule hereto in Ifira Trustees Limited so that the said lands shall be held by Ifira Trustees Limited beneficially for all the members of their community.

In making the Declaration, they state they are aware of Articles 71, 72 and 73 of the Constitution of the Republic of Vanuatu and they further say that they is no inconsistency between the Declaration and the said Articles because:

1. The said lands belong beneficially to the respective indigenous custom owners and their descendants.
2. They have applied their own rules of custom in deciding the basis of ownership and use of the said land.
3. They have adopted and therefore recognise the concept of trust as being "a recognised system of land tenure" for the purpose of this custom in regard to Article 73 of the Constitution.
   

The lands in question include Malapoa Peninsula, in which location land title 12/091/332 is.

From the pleadings, the Claimant Trustees in this case has a legitimate interest to seek rectification of the register pursuant to s.100 of the Land Leases Act [CAP.163]. Not only the Claimant Trustee the holder of a registered negotiation’s certificate in respect to the land which was found by the Supreme Court on 2 March 2006 to be in dispute, but also, they were Applicant at time to seek a lease over the subject land.

Plainly the Claimant Trustees was a competing Applicant for the land in question and on any sensible test, has a sufficient interest to seek rectification of the First Defendant’s registration.

This is so confirmed by the 1978 Declaration of the each of Families of Ifira including Family Kalsakau represented by the then Chief Graham Kalsakau and the Memorandum of Association of Ifira Trustees Limited (Article 5(d)(ii) "As trustee for the said people of Ifira Island,... (ii) to acquire by purchase lease or exchange land...".

Whatever the merit of the substantive action, the Claimant Ifira Trustees Limited has standing to pursue s.100(1) of the Land Leases Act [CAP.163].

ORDER

I order accordingly.

DATED at Port Vila this 7th March 2008

BY THE COURT

Vincent LUNABEK
Chief Justice