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Bouchaud v Director of Land Records [2003] VUCA 4; Civil Appeal Case 05 of 2003 (9 May 2003)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No. 05 of 2003

BETWEEN:

PETER STANLEY BOUCHAUD,
trading as NASAMA of P.O. Box 156 Luganville, Santo
Appellant

AND:

DIRECTOR OF LAND RECORDS
First Respondent

AND:

THE MINISTER OF LANDS
Second Respondent

AND:

SOCIETE CIVIL IMMOBILIERE DU CANAL
of Luganville, Santo, Vanuatu
Third Respondent

Coram: Chief Justice Vincent LUNABEK
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki

Counsels: Messrs George Boar and Daniel Yahwa for the appellant
Mr. Michael Edwards and Ms Viran Molisa for the first and Second respondents
Mr. John Malcolm for the third respondent

Date of hearing: 8th May 2003
Date of judgment: 9th May 2003

JUDGMENT

This is an appeal against the judgment of Coventry J delivered on 18^th February 2003.

The proceedings concern a dispute as to which of the appellant and the third respondent were entitled to be registered as the owner of the land lease Title No. 03/1102/001. This land covers an area of about 90 hectares (ha). On 26 January 1981 an Order was made to declare that portion to be part of the Municipality of Luganville, Santo, and thus, government land.

On this appeal, the appellant seeks to overturn the Orders of Coventry J. The appellant seeks an order to the effect that the Registrar of Land Records cancel the registration of the third respondent as the proprietor of the land lease Title No. 03/1102/001 and register the appellant as the proprietor of the said lease. He also seeks for costs in this Court and the Court below.

The genesis of the dispute between the appellant and the third respondent can be summarized as follows:

The land register shows that on 31 May 2001, Societe Immobiliere du Canal (SCIC) was registered as proprietor of a 75 year lease over the 90 hectares property.

The appellant says that the registration of the first respondent lease came about as a result of fraud, mistake or omission. The appellant says a lease document in his favour was signed on 5 April 2001. It was not registered as it should have been. He placed a caution on the register. He claims rectification of the register and damages.

Coventry J found no fraud or mistake in the registration of the third defendant’s lease. He dismissed claims 1, 2, 3, 4 and 6 of the appellant’s claim against the third defendant. He ordered that the cautions lodged by the appellant on 31 May 2001 and 1 June 2001 be removed from the register forthwith. He dismissed the claim against the first and second respondents. He awarded indemnity costs in favour of the third respondent. The first and second respondents were awarded their costs on the standard basis against the plaintiff.

It is common ground that Pre-Independence land Title 432 covers on area of approximately 498 hectares at the edge of Luganville on Espiritu Santo. About 90 hectares lie on one side of a road. On 26 January 1981, an Order was made declaring that portion to be part of the Municipality of Luganville and hence it became Government land.

It is undisputed that the third respondent SCIC held Title 432, which covered 498 hectares, including the 90 hectares in dispute. A rural lease has been granted to it in respect of the 408 hectares on the other side of the road.

Coventry J accepted the evidence of Minister Sela Molisa. His Lordship found no basis to conclude from his actions that there was any fraud or mistake such as would satisfy Section 100 of Land Leases Act.

Section 100(1) states:

“Subject to subsection (2) the Court may order rectification of the register by directing that any registration be cancelled or amended where it is so empowered by this Act or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.”

It is clear from the reasons for judgment of Coventry J that His Lordship rejected the evidence led on behalf of the plaintiff (now the appellant), and in particular his explanation as to why the appellant’s lease was properly acquired.

Mr. Bouchaud, the appellant, has lived in Luganville since before Independence. He had been onto the ground after Independence in connection with timber. He had asked permission to do so. He must have known before applying for a lease that SCIC regarded themselves as being in occupation of the land as far as the obtaining of a lease was concerned.

The appellant obtained a Certificate as registered negotiator in the name of Peter Bouchaud. At some stage the application for the lease became made in the name of Nasama Co. Ltd. That was the basis on which the application proceeded. The lease itself stated the lessee is “Nasama”.

Nasama is the registered business name of Peter Bouchaud. The business was established on 18 January 2001 and registered on 31 January 2001.

A business name is not a legal person for the purposes of issue and registration for the purposes of a lease. It is not clear why Mr. Bouchaud apparently told the Minister and his lawyer that the applicant was a registered company when it was not.

The speed with which the appellant’s application was processed was abnormally fast. It was at this stage that officials in the Department of Land became deeply concerned about what was happening. On 4 April 2001 Mr. Korman informed the Director of the Department of Lands that the Prime Minister had instructed him to reverse the instructions of 9 February and to grant the Nasama Co. Ltd the full 90 hectares of land as requested by the Company. Mr. Korman advised Nasama to redo another lease. On 4 April 2001, a new lease was signed on 5 April 2001 at 3.00PM. It was not registered.

Normal procedures were by passed in the issuing of the appellant’s lease.

The primary Judge accepted the evidence of George Tambe and Ben Garae. He found that they had made a principle and courageous stand on this matter when they expressed their concerns about the irregularity in the process for issue of the plaintiff’s lease.

The premium paid by the appellant was grossly inadequate. The appellant paid VT.6,875,000 for 90 hectares of land zoned commercial and residential, being part of the township of Luganville.

However, the plaintiff, in his cross examination, valued this land at almost double what he paid for it. On the evidence before him, Coventry J found there was sufficient evidence to show the inadequacy of VT6.8 million.

As to the manner in which Reginald Stanley and Maxime Korman dealt with the third defendant His Lordship rejected the evidence of Mr. Stanley. Although, he did not reject the evidence of Maxime Korman, he pointed out that Mr. Korman was aware of more circumstances surrounding this case than he has told the Court. The Judge preferred the evidence of Peter Colmar about the occupation and condition of the land.

In his reasons for judgment, Coventry J held that the plaintiff’s lease was not “a properly acquired lease”. He could not find evidence that there was interference by which it was not registered.

He held further that Minister Molisa upon coming into office in mid April, was entitled to review the circumstances of the plaintiff’s lease and make a decision to revoke it. Mr. Molisa set out his reasons in his letter of 13 August to Nasama.

The primary Judge held that the third defendant was entitled to issue a lease and that was the one that was registered. Fraud was not established.

The primary Judge found that SCIC became a registered alienator. SCIS has remained on the land throughout. There were improvements and development of the land, although, the improvements were not of great magnitude and the maintenance of the land in recent times was lacking to some degree.

Whether or not SCIC has a negotiator Certificate, the Judge, found there has been no mistake on the part of the Minister as to the state of affairs concerning SCIC. His Lordship, then, held that he could not find any other circumstances on the evidence which could arguably constitute a “mistake” within Section 100 of the Land Leases Act.

The respondent purchased the land before Independence. He has been in occupation since and has made the improvements and maintained its conditions. Coventry J held that the Minister was entitled to issue the lease on the terms that he did.

The appeal is advanced on eight (8) grounds. They will be dealt with in turn. First, the appellant says that the trial Judge erred by failing to find that the appellant had on 5 April 2001, a registered lease, which was indefeasible.

The evidence before the Court is that the appellant obtained a lease which was signed on 5 April 2001. That lease was issued in the name of Nasama Co. Ltd. It was issued to no more than a registered business name. It was not issued to a “person” as required under Section 1 of the Land Leases Act. The appellant’s lease was never registered.

The first ground is baseless and must fail.

Secondly, the appellant says, the trial Judge erred by finding that the Minister of Land could by his own volition declared void the appellant’s registered lease or registrable lease and accordingly rectified same when in no way in the Land Leases Act [CAP. 163] does the Minister have such a power to declare a registered lease and/or registrable lease void and accordingly ordered rectification.

The issue of the Minister’s power to cancel the appellant’s lease was not raised before the trial Judge. It was never challenged. The appellant never claimed an order to set aside the Minister’s decision. Before the Court below, the appellant, sought orders for rectification of the land registry records, to register the appellant as the lessee, damages for late registration and order as to costs. The appellant should have challenged the Minister’s decision prior to raising the same in this Court. The appellant is now estopped in this proceeding from doing so.

The second ground must also fail.

Thirdly, the appellant says the trial Judge erred by finding that the third respondent was still an alienator under the Land Reform Act [CAP.123] when Minister Korman, then, Minister of Land has declared that the third respondent status as alienator has lapsed.

SCIC held Title 432, which covered 498 hectares, including the 90 hectares in dispute. SCIC became the alienator upon Independence.

Section 1 of the Land Reform Act [CAP. 123] states:

“alienator” means a legal or natural person or persons who immediately prior to the day of Independence...

(a) has freehold or perpetual ownership of land whether alone or jointly with another person or persons;...”

On 26 January 1981 the land was declared public land. This was effected under Section 12 of the Land Reform Act [CAP. 123].

By Section 13:

“Every alienator occupying public land shall have a right to remain in occupation of that land from the time it becomes public land until he enters into a lease of the land or a part thereof with the Government or he receives payment for improvements to or on the land.”

In 1981, the 90 hectares was Government land. SCIC had a right to remain in occupation until they entered into a lease with the Government or received payments for improvements to the land.

On 1 August 1982 the Alienated Land Act [Cap. 145] came into force. By Section 3(1) anyone claiming to be an alienator had to apply to the Minister to be registered as an alienator within three months of the Act coming into force. By Section 8 a person who did make an application in accordance with Section 3 “shall not have any rights as an alienator in respect of the land”.

The evidence which was accepted by the trial Judge was that a notice under this Act was produced. It refers to “title No. 432”. It is dated 29 September 1982 and is addressed to “SOC. CIVIL GOLDEN DU CANAL (Stephen Leeman) P.O. Box 174, SANTO”.

There was a point taken about the word “GOLDEN” and whether this referred to a different company to the third respondent. The evidence however does not show that this is other than an inconsequential misdescription.

The notice states:

“The Minister has approved your application for registration as an alienator and instructed that you be registered, under Section 17(3) of the Act to negotiate for a Lease on the developed portion. A Certificate to that effect will be forwarded to you in due course.”

Although, the third respondent did not produce a Certificate, the trial Judged was satisfied that SCIC was registered as alienator of the land comprised in the Title 432. As such SCIC had to be compensated for improvements to the land or be granted a lease.

There is no contrary evidence shown. There is no basis to interfere with the finding of the trial Judge to this effect.

The third ground of the appeal must also fail.

Fourthly, the appellant says that the trial Judge erred in failing to find that actual possession of the land was determinative of whether an alienator should enter a lease with the Government and/or get compensation thereof.

The third respondent as the alienator was entitled to remain on the land until such time as he entered into a lease or is compensated for the improvements on the land. The third respondent has exercised his right to enter into a lease. This ground cannot stand.

The fifth ground is that the third respondent was an alienator and it needed to apply for the negotiator Certificate and pay the premium in order to get the lease registered in its name.

This ground cannot stand on the basis of the evidence before the Court below.

The sixth ground of the appeal is that the trial Judge erred in awarding costs of the action against the first and second respondents since it was the first and second respondents representation which led the appellant to apply.

This ground is misconceived. The principle of costs applied by the Judge is that costs follow the events. The losing party will pay the costs of the wining party.

This ground also must fail.

The seventh ground of appeal is that the appellant registered lease would be void in any event on the basis of procedural irregularities.

This ground cannot stand on the basis of the evidence before the trial Judge. The appellant’s lease was issued in the name of a trading business name. It is not a person as required by the law.

The last ground of the appeal is that there is no proper discovery by the first and second respondent.

During the course of hearing this appeal, the appellant filed an affidavit containing survey plans the appellant says if brought to the attention of the trial Judge would lead to a different conclusion by the trial Judge.

We have perused the material, we are not persuaded that the material if drawn to the attention of Coventry J would help the appellant’s case.

This last ground of the appeal must fail.

We accordingly are of the opinion that the appeal must be dismissed with costs.

The Orders of Coventry J of 18 February 2003 are upheld.

Dated at Port-Vila this 8^th day of May 2003

BY THE COURT

Vincent LUNABEK CJ
J. Bruce Robertson J
John von DOUSSA J
Daniel FATIAKI J