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Kalo v Malsungai [2008] VUSC 46; Civil Case 152 of 2007 (13 June 2008)

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

Civil Case No. 152 of 2007

BETWEEN:

JEAN BAPTISE KALO
Claimant

AND:

PETRE MALSUNGAI
LESLINE MALSUNGAI
First Defendants

AND:

MALACHAI RUSSEL
MRS. MALACHAI RUSSEL
Second Defendants

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
Third Defendant

AND:

THE DIRECTOR OF LAND RECORDS
Fourth Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Toa for Claimant
Mr. Tari Joel for First Defendants
Second Defendants in person
Ms. Williams for Third and Fourth Defendants

Date of Hearing: 10 June 2008
Date of Decision: 13 June 2008

RULING

1. At the conference on 4th April 2008 I directed that the separate strike out application of the first and second defendants would be heard at the conference to be held on 10th June 2008.

2. I also ordered that the claimants file and serve sworn statements in support of their claim (although the written order did not correctly record the order read out at the conference). I had previously made a similar order on 10th December 2007. By the time the conference on 10th June 2008 arrived, the claimants had still filed no evidence in support of their claim despite the orders of 10th December 2007 and 4th April 2008 requiring them to do so. The application to strike out, however, was heard.
   
3. I heard the application of the second defendants first and granted it, giving brief oral reasons at the conference. I now record those reasons more fully.
   
4. The second defendants are both elderly and retired. They appeared in person. Their applications are contained in letters that they wrote to the Court dated 23rd January 2008 at the time they filed their statements of defence. The grounds for Mr. Russell’s application is that he was merely a political advisor to Minister of Lands at the relevant time. His function was merely to prepare documents for the signature of the Minister, that he had no power of decision, the Minister being the sole decision maker. Mrs. Russell’s application was based on similar grounds. She pointed out that she out that she is retired, elderly and now handicapped. She was previously employed in the Lands Department as a Land Records Officer in a purely administrative capacity. She did not see that she would be any help to the Court in this case and asked for her name to be struck out.
   
5. The jurisdiction to strike out a claim on the basis that there is no reasonable cause of action is well recognized: Noel v. Champagne Beach Working Committee [2006] VUCA 18; CAC 24/06 (6 October 2007). The jurisdiction should be exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material. The claimant’s case must be so clearly untenable that it cannot possibly succeed.
   
6. It is obviously necessary to ascertain just what the claimant’s case against the second defendants is. The statement of claim is rambling and difficult to follow. It is clearly in breach of R 4.2 (1) (a) and (b) in that it is not as brief as the nature of the case permits and it sets out matters of evidence rather the merely the relevant facts on which their claim is based. Although it seeks to attack the basis upon which lease number 11/0G23/036 was granted to the first defendants, it is not a claim for rectification of the register under section 100 (1) of the Land Leases Act. Rather it is a claim for damages in an enormous sum, seemingly for fraud in the issue and registration of the lease in 1996. Although in the latter paragraphs of the claim it alleges in very general terms that "the defendants" defrauded the claimant and/or forged the claimant’s father’s signature, the claim fails to state how the second defendants were involved in that, and of course there is no evidence filed in any event. All that is specifically alleged against either of the second defendants is that they were involved in the communications between the claimant and the Ministry of Lands and the Land Records Office at that time. It is quite impossible to ascertain a clear basis for a coherent cause of action against the second defendants. The claim is therefore struck out against them.
   
7. The application by the first defendants to strike out the claim is brought on even more fundamental grounds. They rely upon a Native Court judgment No. 12 dated 14th April 1975 which is attached to the sworn statement of the first defendant Lesline Malsungai. In order to show the relevance of that, it is necessary to ascertain the basis of the claimant’s claim to the leasehold title.
   
8. In paragraph 6 of the claim, he alleges that he and his family have through their later father Charles Kalo inherited his possessions "one of which is Leasehold title 11/0G23/036." In paragraph 7 it is alleged that in the period between 1930 and 31st December 1970, the date of the late Charles Kalo’s death the leasehold title was vested in his name as lessee. Of course that cannot be so, leasehold titles were only created after Independence pursuant to the Land Leases Act. Presumably the claimant means that the land now subject to the leasehold title was owned by the late Charles Kalo, who was the father not only of the claimant but also of the first defendant Lesline Malsungai and their brothers and sisters.
   
9. The claim then appears to allege that there was fraud in the granting and registration of the lease to Lesline and her husband Petre in 1996 because it was done without the consent or knowledge of the claimant. There also seems in paragraph 24 to be some allegation of forgery of the claimant’s father’s signature. This seems to be the basis of the claim for damages. The claimant appears to be saying that he had an interest in the land which was unlawfully taken away from him in 1996.
   
10. The evidence before the Court shows that at the date of his death, late Charles Kalo was the owner of a Pre-Independence freehold title No. 1093 in respect of the land which is now the subject of the lease. The Native Court judgment No. 12 attached to Lesline’s sworn statement records that Charles Kalo left no will and that according to custom all his children can claim their right of ownership but that all the brothers and sisters including the present claimant Jean Baptiste waived their right of ownership of the land after the death of their father to the sole benefit of the eldest brother George Kalo. Attached to the copy of the judgment is a copy of an affidavit by the then Native Advocate Vincent Boulekone declaring that on the 23rd September 1974 he received statements from all the brothers and sisters apart from George including Jean Baptiste and Lesline saying that they have under custom waived their rights to the land in title 1093, which became theirs by inheritance under custom after the death of their father and that they had done that to the benefit of their brother George Kalo.
    
11. Following that Native Court judgment, George Kalo was registered as the sole owner of title No. 1093. It is clear from the decision of the Court of Appeal in Kalotiti v. Kaltabang [2007] VUCA 25; CAC 11/07 (30 November 2007) that a decision of a Native Court of this nature remains in full force and effect both before and after Independence.
    

12 Mr. Toa stated that the claimant disputes that he waived his customary right. However, the Court cannot go behind the judgment of the Native Court. It must accept a court judgment on its face while it stands.

13 At Independence George Kalo would have become an alienator under the Alienated Land Act and entitled to obtain a lease of land in question or compensation for improvements. However, that had to be done within 3 months of 1st August 1982 or he would lose his rights as an alienator pursuant to Section 8 of the Alienated Land Act: see Chief Morris Mariwota v. Est. of Obed and Maraki Kai & Ors CC 190/06 (14 May 2008). It is apparent that George Kalo did not exercise his right as an alienator and did not then become the proprietor of a registered leasehold title. However, it also seems clear that no one challenged his ownership of the land.

14 Lesline has deposed that in 1988 her husband purchased the land from her brother George Kalo and in 1996 they obtained the grant of a registered leasehold title in respect of it. It is in respect of the grant and registration of the lease that the claimant bases his claim that he was defrauded. It is clear from the above that, whatever right the claimant might have had in the land after his father died, he waived it in favour of his brother George in 1974 and there has been a binding judgment of the Native Court accordingly. He therefore has no standing to complain of the grant of a lease to Petre and Lesline in respect of that land. Although technically George Kalo may not have been the legal owner of it in 1988 because of the cancellation of the freehold title at Independence, no one had a better right to obtain a later lease of it than him or his successors in title. That is what the first defendants are.

15 I am satisfied that the claimant has no reasonable cause of action and that his claim of fraud is untenable. His claim is struck out.

16 There will be costs in favour of the first, third and fourth defendants to be agreed or fixed by the Court on application. There is no order for costs in favour of the second defendants because they have never been represented by lawyers and cannot therefore be reimbursed for legal costs.

Dated at Port Vila, this 13th day of June, 2008

BY THE COURT

C.N. TUOHY
Judge