IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Civil Jurisdiction
CIVIL CASE No. 17 OF 2000
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ULUL ULUL WILLIE, BONGBBON TUEUE, VALUOLU KOLILIU
all of Burumba Village, Epi in the Republic of Vanuatu
Plaintiffs
AND:
LESLEY AND ROY SARGINSON
of Kalala plantation, Burumba, Epi, in the Republic of
Vanuatu
First Defendants
AND:
The Director of Land Records
of Port-Vila, Efate in the Republic of Vanuatu
Second Defendant
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Coram: Mr. Justice Vincent Lunabek, Acting Chief
Je
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Counsel:
Mr. Saling Stephen for the Plaintiffs
Mr. Edward Nalial for the First Defendants
The Second Defendant is not present and there is no legal appearance on his
behalf
Hearing date: 25 April 2000
Date of Judgment: 28 April 2000
REASONS
FOR JUDGMENT
INTRODUCTION
By Summons dated and filed on 22nd
March 2000, the Plaintiffs seek declarations and/or Orders against the First
Defendants as follows:
1.
For a declaration that the First Defendant as Lessee, has breached certain
terms and conditions contained in Agricultural
Lease No. 314 which has been
executed by the plaintiff and the First Defendant on 20th October
1982 and thereafter approved by the Minister of Lands on 22nd October
1982.
2.
For a declaration that due to the First Defendant’s failure to remedy the
breaches after reasonable notice was given,
consequently their failure to
remedy renders the Lease to become terminated and is of no force and legal
effect.
3.
That an Order be made against the Second Defendant to have or cause to have
the First Defendants’ name be struck off
the register.
4.
That an Order be made against the First Defendant their Servants and Agents,
living thereon to peacefully and quietly
to deliver up vacant possession of
the demised land including all improvements thereon to the Plaintiff with
immediate
effect.
5.
For such further or other relief as shall be deem fit.
6.
That the First Defendant be ordered to pay the cost of this suit.
ISSUES
1.
Determination of the limits and boundaries of the Agricultural Lease Title
No. 314 (“the Lease”) on the sea side from
point A to B on the Map as
attached to the affidavit evidence of Jack Tueue dated 25 February, 2000.
2.
Are the First Defendants in breach of certain terms and conditions of the
Agricultural Lease Title No. 314?
3.
If the answer to question 2 is yes, then do the breach warrant an order of
this Court to vacate and deliver up vacant
possession of the demised land
including all improvements to the plaintiffs?
THE PARTIES
The plaintiffs and the first defendants are from
Burumba village, at Epi Island in the Republic of Vanuatu.
The Plaintiffs are the custom landowners and
Lessors of the land comprising of Kalala Plantation which is currently
leased
to the first defendants for agricultural purposes.
The first defendants are the Lessees of the said
Agricultural Lease herein after called (“the lease”) and are currently
residents of Kalala Plantation, Burumba, at Epi Island. The Second Defendant
is the Director of Land Records Office, responsible
for registering all Land
Leases in the Republic of Vanuatu.
BRIEF FACTS
The plaintiffs and the first defendants have
signed the said Agricultural Lease on 12 October 1982 as Lessors and Lessees
respectively. The lease was approved by the Minister of Lands on 22nd
October 1982. It was intended for a term of thirty (30) years commencing
from the 30th July 1980.
The
Lease provides for an annual rental in the sum of Vatu 6,400 payable to the
lessors and to be paid in advance by equal
payments on the last day of
January and the last day of July. The rental is subject to review every five
(5) years.
On
or about 22 November 1999, a dispute arose out of the harvesting of the
trochus shells collected from the reefs at Kalala
plantation.
The
defendants were, then, prohibited to go to Burumba village. Jack Tueue who
is the Lessor who collected the payment of
the rents stopped to visit Kalala
plantation for that purpose.
In
1999, the defendants, then, did not and could not paid rents for that year
because it was not possible for both parties
to contact or communicate with
each other. The plaintiffs, then, apply to seek the Court’s assistance to
get the defendants
removed from the demised land Title No.314 so that they
(plaintiffs) can repossess the vacant land including all the improvements.
AFFIDAVIT
EVIDENCE
Mr. Jack Tueue who is one of the custom land
owners and lessors filed 2 sworn affidavits dated 25 February 2000 and 5
April 2000 respectively in support of the plaintiffs’ case. In his
affidavit he deposes, inter alia, that:-
(8)
an>It is with grave rave dissatisfaction of the lessor to continually note
and observe since commencement of the lease
up atil te, the
lessees have breached certain conditions of the lease which are are set oset out heut here
under:-
(a)
The lessee have not been faithful in paying the rental when there are due
and payable. The rental for 1999 is still
not yet paid.
(b)
The lessee have failed to plant and maintain at least one fifth of the
demised land suitable for cultivation with crops
or pasture in a good and
husband like manner. Coconut trees on the lease are about 60 to 70 years
old.
(c)
The lessee have failed to stock the developed pasture land at a minimum rate
of one cattle or five sheep or goats per
three hectares. There are not more
than 20 heads of cattle on the property.
(d)
The lessee have failed to farm and manage the demised land in such manner as
to preserve its fertility and keep it in
good condition and good husbandry
practice. Both Lesley and Roy Sarginson are employed on full time basis by
other employers.
Lesley spent most of his time in Port-Vila and Roy used to
be working for Valesdir Plantation since commencement of the lease.
There
was no-one managing the leased property during their absence.
(e)
The lessee have failed miserably to keep the land clean. For example there
are noxious weeds known as Lantana plant
growing everywhere on the developed
part of the lease.
(f)
The lessee have failed to adequately fenced the demised land keep for
grazing which as an end result saw straying of
cattle, and pigs to adjacent
property causing nuisance and damage to food crops.
(g)
The lessee have built a church house and Women’s club both semi-permanent
on the lease without the lessor’s consent
and thus greatly alter the
purpose of the lease.
(h)
The lessee have absolutely done no improvements on the demised land in so
far as the whole purpose of the lease is concerned.
(i)
The lessee and their families have instead involved themselves in vast
harvesting of trochus shells from the reefs which
belong exclusively to the
lessors in order to subsidize their agricultural earnings since 1982 up
until todate.
Mr.
Jack Tueue attached with his affidavit a copy of the Agricultural Lease
Title No. 314, a Survey Map of Kalala Plantation,
a copy of the Notice of
Forfeiture sent to the first defendants dated 17 February 2000 specifying
certain breaches and
requiring the first defendants to remedy the breach
within one month.
In
his second affidavit, Mr. Jack Tueue deposed that to demonstrate the
plaintiffs’ intention to commence these proceedings,
the plaintiffs have
accordingly exercised their right to terminate the lease in respect of
Agricultural Lease No.314, on
21 March, 2000. He then attached a copy of the
termination of the lease sent to the First Defendant dated 21st
March 2000.
Under
cross-examination, he said he knew the first defendants for more than 20
years and they are good friends – but when
the problem of harvesting
trochus shells arose, then, their good relationship ceased. He admitted that
although he said
that the first defendants fail to pay the rent in 1999, the
Burumba village chiefs prohibited the first defendant to enter Burumba
village.
He
also admitted that the first defendants paid rents from the start of the
lease until the year 1998. He indicated that
the Map attached to his
affidavit includes the offshore reefs.
He
pointed out that start from 1982, he knew that the first defendants breached
the terms and conditions of the lease.
He said there are no coconut trees at Kalala
Plantation and there are very few fruit trees. He further said he saw very
few cattle heads but he did not count them. He denied that Roy Sarginson
used the bulldozer to cut the grass/rubbish weeds.
He denied also that there
is improvement on the demised land. There were noxious weeds known as
lantana plant growing everywhere
on the developed part of the lease.
He stated also that to his knowledge, the reefs
are for him and the trochus shells are also for him. He denied he harvested
the trochus shells and sold them. He said he did not dive for the trochus
shells.
He finally admitted that the reason why he
wanted the first defendants to vacate his land was because of the dispute
they
had with the first defendants in November 1999 about harvesting the
trochus shells on his reef and also because of the breaches
of the
conditions of the lease.
He was then re-examined. He confirmed that the
Map covers the reefs where trochus shells are collected.
He finally confirmed that there are cattle
belonging to other people from Burumba village living inside Kalala
Plantation.
The fences are not properly maintained.
Mr. Roy Sarginson of Kalala Plantation of
Burumba, Epi, as one of the lessees, filed an affidavit evidence of 28 March
2000
in support of the Defence’s case.
He was one of the lessees on Agricultural Lease
Title No. 314 of 20 October of 1982.
Kalala plantation at Burumba, Epi which is in
the Agricultural Lease No. 314 is the place where he and other members of
Sarginson family were born and live until today. It is their home and they
have no other place in Vanuatu for his family to
live on.
He did not refuse to pay rents of 1999 to the
Lessors of the Agricultural Lease No. 314. In or about November 1999, Jack
Tueue and some Chiefs from the village of Burumba, Epi, prohibited him and
his family to go to Burumba village. Since that
time, there is no contact or
communication between him and Jack Tueue and other lessors of the demised
land property.
There are about 28 or 29 heads of cattle at the
Kalala plantation. He said there are other heads of cattle belonging to the
people of Burumba village, including the two bulls of Mr Jack Tueue in
Kalala plantation. Others’ cattle get in the plantation
by breaking the
plantation’s fence.
It is not possible to increase the number of
cattle in the plantation.
He admitted he works in a plantation at
Valesdir, Epi but he appointed his children to manage Kalala plantation.
Every weekends,
he worked at Kalala plantation. He and his families, planted
fruit trees at Kalala plantation such as mandarine, orange and
avocado
trees. Lesley Roy is always at Kalala plantation.
They tried their best to get rid of noxious
weeds known as lantana plant. Twice a year, he used a tractor and a slasher
vehicles to clear the weeds, it is not possible to get rid of lantana weeds.
In the past, he used the bulldozer to clear lantana
weeds but he could not
get rid of them. He was advised by the Agriculture department to use a
poison to get rid of lantana
weeds. His next step is to use that poison
product.
Kalala plantation has a good and maintained
fence. But it was broken by the cattle of the people of Burumba village,
including
those of Jack Tueue.
He denied that their pigs are straying and
caused nuisance and damaged food crops. In fact, those pigs belong to the
people
of Burumba village. He mentioned that there are 3 pigs now in the
plantation but he did not know they belong to whom.
He admitted that they had built a Catholic
Church and a Women’s Club Centre at Kalala plantation. The lessors had
made no
complaints and even during the opening ceremony, Jack Tueue and
other lessors accepted the invitation and were there at the
opening. Since
then, people of the village use the church for worshiping.
He denied that there was no improvement on the
plantation. Since 1982, he said they cleared the plantation from the dark
bush and ropes. They planted about 2 hectares of coconuts, have cattle,
planted lots of fruit trees.
He said they have harvested trochus shells on
the reefs inside Kalala plantation other people from Burumba village also do
the same. There is a Committee at Burumba which looks after the harvesting
of the trochus shells.
He never stopped any person from harvesting
trochus shells and he denied they are the only ones to benefit from the sale
of the trochus shells.
He finally said, he worked very closely to Jack
Tueue and both are good friends until 22 November 1999 when the issue of the
harvesting of the trochus shells arose. He said Mr Tueue wanted to remove
family Sarginson from the Agricultural Lease
No. 314 because of the issue of
harvesting the trochus shells.
He was cross-examined. He said he lived there
since he was born. He is now 59 years old. He said in 1982, they signed
lease
to be in good terms and live in harmony with the people of Burumba
because at that time there were political crisis.
He confirmed he did not pay rents for 1999. He
said he used the bulldozer to cut the dark bush and he did also use poisons.
He works at Valesdir and he had 3 workmen who worked on the plantation every
week. (Jeffrey, Arnold and Patrick).
He said Jack Tueue has 2 bulls in the
plantation. When they maintain and repair the fence, Jack’s bulls and
others damaged
and broke the fence. He said he went to see Agricultural
officers and asked for advice.
He admitted he built a church because they need
one and also a women’s club. He planted fruit trees after the lease was
signed.
Further, this witness said that he did not pay
1999 rent. The plaintiffs wanted to assault them because of the harvesting
of trochus shells. They were prohibited to go to Burumba village. He no
longer went to the village and Jack Tueue stopped
to visit him in the
plantation. He was ready to pay rents for 1999. He mentioned that there are
26 cattle heads in the
Kalala Plantation and Jack Tueue has 2 bulls. They
broke Kalala plantation’s fence. As to the church, lots of people came to
the church including elders of the village.
I have had the opportunity to read and consider
the affidavit evidence of Mr. Jack Tueue and Mr. Roy Sarginson and consider
their evidence and demeanour into the witness box. There are
inconsistencies/contradictions in the evidence of Mr. Jack
Tueue, although,
some part of his evidence are truthful. This can be shown as follows: In his
affidavit evidence (para.
8(b)) he stated that coconut trees on the lease
are about 60 to 70 years old – where as in his cross-examination, he said
there are no coconut trees. Further he said in his affidavit evidence (para.
8(c)) that the lessees have failed to stock
the developed pasture land at a
minimum rate of one of the cattle or five sheep or goats three hectares.
There are not
more than 20 heads of cattle on the property. But when
cross-examined, he said he saw very few heads of cattle but he did not
count. If he did not count them, how he could say that there are not more
than 20 heads of cattle when witness Roy Sarginson
testified that they have
26 heads of cattle plus Jack’s two (2) bulls which he did not deny their
presence inside the Plantation
of Kalala.
Mr. Roy Sarginson is an honest credit worthy
witness.
FINDING OF FACTS BY THE COURT
Upon considering and assessing the evidence of
both parties, the following facts have been established:-
The
first defendants pay rents from 1982 until 1998 except for the year 1999
after the dispute about harvesting of trochus
shells arose. As a result, the
first defendants were prohibited to go to Burumba village, Jack ceased to go
to Kalala Plantation,
the plaintiff and first defendants have ceased to
communicate. Therefore, it is impossible for the first defendants to pay
1999 rents to the plaintiffs (Jack Tueue) as he should pay rents personally
to him.
The
real reason for the notice of forfeiture is that the first defendants
harvested trochus shells on the reef and this
culminated in the year 1999 as
mentioned above. The trochus shells were harvested by diving on the reefs
under water. The
plaintiffs contributed to some of the breaches of the terms
and conditions of the Agricultural Lease by allowing cattle and
pigs
breaking the fences of the plantation (Kalala). It is a fact that the
plaintiffs knew about the breaches since the
beginning but they never refuse
to collect rents paid since the beginning until 1998. It is also not
disputed that the
first defendants built a semi-temporary church and a
women’s club in the demised land without the consent of the plaintiff.
However, it is also clear that the plaintiffs knew about this and Jack never
complained and he and other plaintiffs accepted
the invitation for the
opening of the Church as an approval for the defendants to so act.
THE
LAW
· p;
s span>Definition
of land under the Land Reform Act 123].
pan><The
Interpretation section provides:
“land”
includes improvements thereon or affixed thereto and land under water
including land extending to the sea side of any offshore reef but no further.
(Emphasis added).
· &nbbsp;&
sp; Definition
of land under the Land Leact [C3].
The
Interpretation section says:
“land” includes
land above the mean high water mark, all things growing on land and
buildings and other things permanently affixed to land but does not include
any minerals
(including oils and gases) or any substances in or under land
which are of a kind ordinarily worked for removal by underground
or surface
working. (Emphasis added).
Section
43 of the Land Leases Act provides:
“43(1) Subject to the provisions of section 45 and to any provision to
the contrary in the lease, the lessor shall have the right
to forfeit the
lease if the lessee commits any breach of, or omits to perform any agreement
or condition on his part expressed
or implied in the lease.
(2) The right of forfeiture may be-
(a) exercised, where neither the lessee nor any person claiming through
or under him is in occupation of the land, by entering
upon and remaining in
possession of the land; or
(b) enforced by a reference to the Referee.
(3) The right of forfeiture shall be taken to have been waived if-
(a) the lessor accepts rent which has become due since the breach of the
agreement or condition which entitled the lessor to
forfeit the lease or has
by any other positive act shown an intention to treat the lease as
subsisting; and
(b) the lessor is, or should by reasonable diligence have become, aware
of the commission of the breach:
Provided that the acceptance of rent after the lessor has commenced a
reference to the Referee under subsection (2) shall not
operate as a
waiver.”
Section
45 of the same Act says:
“45. Notwithstanding anything to the contrary contained in the lease,
no lessor shall be entitled to exercise the right of forfeiture
for the
breach of any agreement or condition in the lease, whether expressed or
implied, until the lessor has served on
the lessee and every other person
shown by the register to have an interest a notice in writing which-
(a) shall specify the particular breach complained of; and
(b) if the breach is capable of remedy, shall require the lessee to
remedy the breach within such reasonable period as is specified
in the
notice; and
(c) in any case other than non-payment of rent may require the lessee to
make compensation in money for the breach;
and the lessee has failed to remedy the breach within a reasonable time
thereafter, if it is capable of remedy, and to make reasonable
compensation
in money if so required.”
Section
46 of the same provides:
“46(1)A lessee or other person upon whom a notice has been served under
section 45, or against whom the lessor is proceeding,
by reference to the
Referee or by re-entry, to enforce his right of forfeiture, may apply to the
Referee for relief; and
the Referee may grant or refuse relief, as the
Referee having regard to the proceedings and the conduct of the parties and
the circumstances of the case, thinks fit, and, if he grants relief, may
grant it on such terms as he thinks fit.
(2) The Referee, on application by any person claiming as sublessee or
mortgagee of the land or part of the land comprised in
the lease forfeited
or sought to be forfeited, may make an order vesting the leased land or such
part in such sublessee
or mortgagee for the remainder of the term of the
lease or any less period, upon such conditions as the Referee in the
circumstances thinks fit:
Provided that nothing in this subsection shall apply in the case of a
forfeiture arising from a breach to which the sublessee
is a party, or from
the breach of an express agreement or condition against subleasing, parting
with the possession of
or disposing of the land leased.
(3) This section shall have effect notwithstanding any stipulation or
agreement to the contrary and whether the lease is registered
or not.”
APPLICATION OF THE
LAW
The
Notice of 1 month for the defendants to vacate the Agricultural Lease
property is not reasonable. A reasonable notice
would be between 6 to 12
months to give the defendants appropriate and enough time to vacate the
demised land.
What
are then the limits and boundaries of the Agricultural Lease No. 314 (“the
lease”) on the sea side from point A to
point B as exhibited on the Map
annexed to Mr. Jack Tueue’s affidavit of 25 February, 2000?
It
is to be noted that under the Land Reform Act [CAP 123], the “land”
includes …land under water including land extending to the seaside of any
offshore reef but no further.
The
object of the Land Reform Act is to make interim provision for the
implementation of Chapter 12 of the Constitution which provides under
Article 73 that:
“All land in the Republic of Vanuatu belongs to the indigenous custom
owners and their descendants.”
The
Land Reform Act [CAP 123] provides, among other things, for the limits and
the boundaries of any land which is bounded by the sea.
Under
the Land Reform Act, the land includes land under water which includes land
extending to the sea side of any offshore reef and no further. The relevant
limits and boundaries of the land must be, therefore, the offshore reef.
Further,
under the Land Leases Act [CAP 163], “land” includes land above the high
water mark.
As
I understand it, the definition of land under the Land Leases Act includes
land (or reefs) above the mean high water mark.
“High water”,
is the line marked by the periodical flow of the tide, excluding the advance
of waters above that line by winds or storms
or freshets or floods [see
Stroud’s Judicial Dictionary, Fourth Edition, Vol. 2].
I
bear in mind of the almost universally variable character of such a boundary
as that described viz., by the sea side or
sea coast from a point (A) on the
coast at high-water mark to another point (B) on the coast at high water
mark.
Both
points (A) and (B) are themselves necessarily liable to obliteration, either
by accretion or encroachment of the sea
or other causes, and the
intermediate line of coast being in its nature alterable from similar
causes.
It,
therefore, appears to me that it cannot have been the intention of
Parliament to create a boundary which should have
the effect of requiring a
fresh Act/legislation to bring within a lease any land which from time to
time might from any
cause become within the continuous high water line on
the seaward side.
The
Map as Exhibited in Mr. Jack’s affidavit establishes the material evidence
of the boundary of the Agricultural Lease
No. 314. The land bounded by the
sea side of the Agricultural Lease No. 314 from point A to point B on the
Exhibited Map
includes land above the mean high water mark as provided under
the Land Leases Act [CAP 163]. The line from point A to point B must
intended to be within the line of high water mark, and so within the limits
and boundaries of the Agricultural lease No. 314.
But
land/reefs recovered by the water at the high water flow of the tide or the
land permanently under the water (i.e. offshore
reef) are excluded under the
Land Leases Act [CAP 163].
The
defendants harvest the trochus shells on the reefs at Kalala plantation.
There is no evidence that the defendants collected
trochus shells on the
land/reef above the mean high water mark upon which the first defendants are
entitled/have the right
to do so. The evidence before the Court establishes
on the contrary that the defendants harvested trochus shells by diving on
the reefs under the sea at Kalala plantation. As such, it is more probable
than not that the defendants dive on the reefs
which are permanently under
water or recovered by water at the high water flow of the tide for the
purpose of harvesting
the trochus shells. This is outside the limits and
boundaries of the lease by the seaside/sea coast from point A to point B
as
evidenced on the Map at high water mark as defined under the Land Lease Act
[CAP 163].
The
land under water or recovered by water at the high water flow of the tide
belongs to the plaintiffs as custom land owners
and does not form part of
the demised Agricultural Land Lease Title No. 314. The defendants have no
right to harvest trochus
shells on the reef under water or land recovered by
water on the high flow of the tide, unless the plaintiffs give them
permission to do so.
As
to other breaches by the defendants, the plaintiffs knew about them from the
beginning. Despite this knowledge of the
breach, the plaintiffs accept rents
from the beginning, (1982) until 1998 and if there were no dispute about
harvesting
of trochus, then, the plaintiffs would never complain.
Further,
it is also established that Jack and other plaintiffs did not complain about
the building of a Church and a Women’s
Club Centre. They acquiesced to
them by taking part in the opening. This is a positive act which shows the
intention of
the Plaintiffs to treat the lease as subsisting. [See section
43(3)(b) [CAP 163].
By
operation of sections 43(3) and 46 of the Land Leases Act [CAP 163], I am of
opinion that these facts amounted to the situation that the right of
forfeiture may be taken to have
been waived and I so order.
ORDER
1.
I make a declaration that the first defendants as Lessees had breached
certain terms and conditions contained in Agricultural
Lease No. 314 but the
plaintiffs or some of them have also contributed to the breach.
2.
The Order sought in point 2 of the prayers is refused.
3.
The Order sought in point 3 of the prayers is refused.
4.
The Order sought in point 4 of the prayers is refused.
5.
The first defendants are ordered to pay outstanding rents of the year 1999
still owing and due to the plaintiffs which
are in the sum of Vatu 6,400
with immediate effect.
6.
I make a declaration that the first defendants, their agents and the members
of their immediate families have no right
to harvest trochus shells by
diving on the reefs surrounding Kalala plantation, without prior
consent/authorisation of
the plaintiffs.
7.
Each party to pay their own costs.
DATED AT PORT-VILA,
this 28th DAY of APRIL, 2000
BY THE COURT
VINCENT LUNABEK J
Acting Chief Justice
