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Tobias v Attorney General [1988] VULawRp 8; [1980-1994] Van LR 337 (3 June 1988)

[1980-1994] Van LR 337

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Civil Case No. 89 of 1988

IN THE MATTER OF:
The Constitution of the Republic of Vanuatu

AND

IN THE MATTER OF:
The Land Reform Regulation 1980 and the Alienated Land Act 1982

BETWEEN:

JOSEPHINE ANNETTE TOBIAS
Petitioner

AND:

ATTORNEY GENERAL
First Respondent

AND:

HENRI OUCHIDA and
HELME MARIE CLAUDE LOUISE SIMONE MAEVA
Second Respondent

AND:

DIRECTOR OF LAND RECORDS
Third Respondent

Coram: Chief Justice Cooke

Counsel: Mr P Coombe for petitioner
Attorney General
Mr D Hudson for second respondent

JUDGMENT

[INJUNCTIONS - REGISTRATION OF LAND - JUDGMENTS AND ORDERS]

On the 26th May 1988 Mr Coombe applied to the Court by an Ex Parte Summons for an interim injunction restraining the third named Respondent from registering a document purporting to be a lease dated 5th April 1988 (or bearing any other date) between the first named Respondent, acting through its agent VULCAN as lessor of the one part and the second named Respondent as lessee of the other part, affecting the land comprised in Survey Plan No. 11/0D41/005 until further Order.

Mr Coombe who appeared for the Petitioner stated to me that the fear was that the Director of Land Records, unless restrained, will in the course of his duties register the lease and that if such happens, the second Respondent will acquire an indefeasible title. Having accepted Mr Coombe's statement that the lease had not yet been registered and the matters contained in the petition, I granted an Interim Injunction.

The Attorney General who is the first Respondent now applies to the Court for the discharge of the said interim injunction, stating categorically that the lease had been registered when Mr Coombe made his application to the Court. The Attorney General filed an affidavit by Tamata Reuben, the third Respondent, stating that on the 11th May 1988 Mr Coombe, Counsel for the Petitioner, applied for permission to search the Register in relation to land comprised in Title No. 11/OD41/005 and that on the same day permission was granted. That on the 11th May 1988 Mr Coombe lodged a caution in respect of the said title. The third Respondent further stated in the affidavit that the lease in respect of the said Title No. 11/OD41/005 signed between VULCAN as lessor and Ouchida Henri Takechi and Helme Marie Claude Louise Simone Maeva was signed in Port Vila on 5th April 1988 and that the registration of the lease in respect of the said Title No. 11/OD41/005 was completed on the 11th May 1988.

The Attorney General stated that the lease was registered on the 7th April 1988 and produced the lease to show such was the case and that stamp duty was paid in the sum of 213,250VT on the 6th April 1988.

The Attorney General submitted that the Petitioner knew and should have known that the registration in respect of the said title was completed on the 11th May 1988. The Attorney General submitted that the Order was irregular and should not have been made as registration as completed.

Mr Hudson, Counsel for the second Respondent supported the motion of the Attorney General and referred to Section 5 of the Stamp Duties Regulation that an instrument impressed with the stamp duty shall be duly stamped for all purposes and he therefore supported the application as it has no operation as the land was properly registered at the time of the application.

Mr Hudson further referred me to Section 9 (1) of the Land Leases Act whereby the Court may order rectification of the register where it is satisfied that any registration has been obtained or omitted by fraud or mistake but as no suggestion has been made to this effect in this matter and therefore the second Respondent should not be affected by these proceedings. Mr Hudson handed to the Court a receipt for 84,000VT dated 25th April 1988 requested of the second Respondent by the third Respondent.

Mr Coombe's first submission was that if the lease was registered before the Ex Parte Order there was no need for the Attorney General's application. I disagree with this contention as the Attorney General has brought to the notice of the Court a matter which the Court views with great concern.

Mr Coombe made various submissions to me regarding this matter which I reject as I am more than satisfied that the deed was properly registered and an indefeasible title in the Land Title No. 11/OD41/005 has passed to the second Respondent as the lease has, in my opinion, been correctly registered.

I should like to make it clear that Counsel involved in these matters should make certain that the searches they carry out in future are exhaustive and even require some written document from the Director of Land Records that a particular title has not been registered before any application is made to the Court for an interim injunction.

The interim injunction is discharged. Costs in this application shall be paid by the Petitioner.

3 June 1988

FREDERICK G COOKE
CHIEF JUSTICE