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Raupepe v Raupepe [1998] VUSC 81; Civil Case 006 of 1996 (1 November 1998)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT LUGANVILLE/SANTO

(Civil Jurisdiction)

Civil Case No.6 of 1996

BETWEEN:

ALFRED RAUPEPE and others

Plaintiffs

AND:

ATHANAS RAUPEPE and DIANA ASSANOUMA

First Defendants

AND:

DIRECTOR OF LAND RECORDS

Second Defendant

AND:

PAUL TELUKLUK

Third Defendant.

Coram: Mr Justice Oliver A Saksak

Mr William Falau - Clerk

Counsel: Mr Saling N. Stephen for the Plaintiffs

Mr Reynold Liu for the First and Second Defendants

JUDGMENT

History of Proceedings

This Action commenced in or about August 1996 and had been adjourned on a number of occasions due to in attendance of counsel and the parties. Hearing actually took place on 21st July 1997 and the trial was adjourned part-heard. There was a direction hearing on 8th June 1998

On 21st August 1998 the Plaintiffs witnesses were reconfirmed under Oath in regard to their evidence given on 21-25 July 1997 respectively. On 18th November 1998 the Court heard evidence from one witness for the Plaintiffs and one witness for the First and Second Defendants. During this trial the third Defendant was not present before the Court nor was he represented. Affidavit of service has been sworn, filed and served. Similarly Diana Assanouma was not in attendance although she was also served and an affidavit to that effect is in evidence.

Facts

Prior to independence in 1980 the Plaintiffs had formed an association called Societe Raupepe. The Societe was not registered. It was comprised of mainly brothers of the Raupepe Family namely Dominique Raupepe, Francis Raupepe, Joachin Raupepe and others.

The Title in issue is No. 032(old Title) situate at Side River. Prior to independence the property was owned by one Roberto Decillia who later was deported by the Government in 1980 due to his part in the 1980 Rebellion. One of the Plaintiffs namely Dominique Raupepe worked for Decillia who later sold the land to the Plaintiffs. The Plaintiffs occupied the property until 1995 when the First Defendants obtained eviction orders against the Plaintiffs who enquired and found out that the First Defendants had subdivided the Title into two parts and he had caused a part to be transferred to them (being the First Defendant and his wife). The Old Title No was changed to a new Title No. 03/0471/066. The Plaintiffs made several attempts to stop the transfer but did not succeed.

Claims

The Plaintiffs come before this Court seeking declarations that Lease Hold Title No 03/0471/066 is a property jointly purchased by the Plaintiffs and the named Defendants should never have registered the property in their Sole names. Secondly the Plaintiffs seek a declaration that Lease Hold Title No. 03/0471/066 was granted as a result of fraudulent dealing between the First Defendants and Third Defendant and therefore it is void and of no legal effect. Thirdly the Plaintiffs claim for an order rectifying the Register and fourthly that the Lessees be struck off the register and substituted with the Plaintiffs names in the Lease and Register.

Decision

The will be Judgment in favour of the Plaintiffs.

The Law

The relevant Law for consideration by the Court is Section 100 of the Land Leases Act CAP [163] which reads:-

1. 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.

2. The register shall not be rectified so as to affect the Title of a proprietor who is in possession and acquired the interest for valuable consideration, unless such proprietor had knowledge of the omission, fraud as mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default."

Finding

On the evidence both Oral and by affidavits it is shown that the Lease in the name of the First Defendants was obtained by fraud and by mistake for the following reasons:-

(1) When the Plaintiffs formed Societe Raupepe, the First Defendant were in Vila and were not part of it.

(2) When the Plaintiffs contributed funds towards the purchase of land and materials to the amount of VT 477.000, the First Defendants made no financial contribution (see Exhibit P-5.)

(3) That being so, the first Defendants made no valuable consideration required under subsection (2) of Section 100 of the Act.

(4) On February 9th 1995 the first Defendant had agreed and recorded their agreement that Title No 03/0471/032 held in the name of Raupepe Company be maintained in that name (see Exhibit P-8).

(5) From February 15th 1992 Francis Raupepe on behalf of Societe Raupepe was paying for the Municipal property tax (see Exhibit P1A- 1D(1). The inference drawn by this is that the property belongs to Societe Raupepe. If it was not, then it would follow that no payment of property tax would have been necessary.

(6) It is clear to me that Athanas Raupepe knew about the property being jointly owned in the name of Societe Raupepe and further that property taxes were being paid. When he therefore negotiated the Lease without advising the then Minister (now third Defendant )about these factors, he was fraudulent in so acting in breach of Section 100 (1) of the Act.

(7) On 17th August 1995 the third Defendant issued Certificates of Registered Negotiator in respect of Title No 03/0471/032 (3353) to Francis Raupepe (Exhibit P-2), Joachin Raupepe (Exhibit P-3), and to Athanas Raupepe (Exhibit P-4). When the third Defendant amended the Title No by crossing out No 03/0471/032 and substituting No 03/0471/066 without doing the same for certificates of Francis and Joachin, there was a mistake. Indeed it can also be inferred that such was a result of a fraudulent dealing.

(8) There is evidence that the First Defendant had promised to supply the Third Defendant with free bricks and two sinks. One of the two sinks was seen in the First Defendant 's dock by Peter Nwele, Plaintiffs witness.

For the forgoing reasons I am satisfied that Lease Hold Title number 03/0471/066 was obtained by the First Defendant as a result of fraudulent dealings and mistake.

Declarations

The Court now declares as follows:-

(1) That Lease Title No 03/0471/066 is a property jointly purchased by the Plaintiffs and that the First named Defendants should never have registered the property in their sole names.

(2) That Lease Title No 03/0471/066 was granted as a result of fraudulent dealing and mistake between the First named Defendants and Third Defendant It is therefore declared Null and Void and of no legal effect.

Orders

The Court now orders that:-

(1) The second named Defendant do cause without delay rectification of the Register

(2) The Lessees be struck off the Register and the names of all the Plaintiffs mentioned in the Originating Summons dated 4th October 1996 be inserted and included in Lease Title No 03/0471/066 in the lease and Register.

(3) The Defendants will pay the Plaintiff's costs of and incidental to these proceedings to be taxed if not agreed.

DATED at Luganville this th day of November, 1998.

BY THE COURT

OLIVER A SAKSAK

Judge of the Supreme Court