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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No. 26 of 2003
BETWEEN:
GLADYS WILLIAM
First Claimant
AND:
DON WILLIAM, KENWAY WILLIAM, WILLIAM WILLIAM, KELSIN WILLIAM and TONY WILLIAM
Second Claimants
AND:
EZRA WILLIAM
First Defendant
AND:
AHC (Vanuatu) LTD
Second Defendant
AND:
MINISTER OF LANDS
Third Defendant
AND:
DIRECTOR OF LANDS
Fourth Defendant
Coram: Mr Justice Oliver A. Saksak
Counsel: Mr Saling N. Stephens for the First and Second Claimants.
Mr John Malcolm for the First and Second Defendants.
No Appearance by the Third and Fourth Defendants.
Dates of Hearing: 9th, 10th and 11th May 2005
Date of Judgment: 22nd July 2005
JUDGMENT
This case was remitted to this Court by the Court of Appeal on 4th November 2004 pursuant to its orders at paragraphs 3 and 4 which states:
“3. The claims of Gladys William, Don William and Kenway William, and the Counter-Claim are remitted to the Supreme Court for determination.
On 17th March 2005 the Claimants filed and amended claim claiming the following reliefs:
“1. A declaration that the registration of Title No. 04/2621/008 and 04/2621/009 was obtained by fraud, omission and/or mistake and is therefore null, void and of no legal effect.
2. An Order requiring the Fourth Defendant to rectify the Register by cancelling the registration of Lease Title No. 04/2621/008 and 04/2621/009 and restoring same to previous Title No. 04/2621/001 in the joint names of the Claimants.
3. In the alternative, an order requiring all the Defendants jointly and severally to compensate the First and Second Claimants the sum of (to be assessed) for improvements had on the said titles.
4. An order requiring all the Defendants jointly and severally to pay the First and Second Claimants’ costs of and incidental to this action.
5. Such further or other orders deem fit by the Court.”
At the end of the hearing of submissions on 11th May the Court made oral decision dismissing the Claimants claims for a declaration under paragraph 1 and for an order under paragraph 2 above. The Court accepted Mr Malcolm’s submissions that it was not open for the Claimants to again plead fraud or mistake as that claim was lost in this Court and no appeal was pursued. That part of the case is therefore res judicata. There remains the claims for compensation and for rights under section 17(g) of the Land Leases Act CAP 163 (the Act) to be determined.
At the hearings on 9th and 10th May the following persons from the Claimant’s side gave oral evidence: Gladys William, Don William and Kenway William. The Defendants elected not to give oral evidence but relied on the sworn statements of Ezra William, Tony William, Allan Cort and Kelsin William dated 3rd March 2005 and 4th March 2005 respectively. These were taken as read and tendered into evidence.
Mr Stephens raised objections to the statements and indicated verbally that he wished to cross-examine the deponents of the statements. The Court overruled his objections for failure to comply with the requirements of Rule 11.7(4) of the Civil Procedure Rules No. 49 of 2002.
I now deal with the issues as follows –
1. Compensation to Don and Kenway William
No evidence was led by the Claimants with respect to compensation.
The Claimants pleaded loss and damage under paragraph 13 of their amended statement of claim dated 16th March 2005. But they did not quantify the amount claimed for loss and damage. They did not produce any evidence showing their losses and/or their damage.
That part of the claim was simply not substantiated by the Claimants.
At paragraph 3 of their Amended Claim the Claimants pleaded particulars of losses they incurred in December 2002 when the police attempted to evict them. The total sum claimed by Don and Kenway William is the sum of VT9,853,110. These two Claimants did not lead any evidence proving those losses. The burden was upon them to do so and failure to do so means that they both have not substantiated their respective claims.
At paragraph 10 of their Amended Claim the Claimants pleaded that they have effected substantial development on plots of land granted to them within Titles 04/2621/008 and 04/2621/009 by growing cash crops and building houses the value of which has been assessed and valued at more than VT5,853,110. Don William produced a map marked “A” to his statement of 3rd May 2005 showing that cash crops are planted within 04/2621/008. However they did not produce any evidence showing the assessment and/or valuation as claimed.
Evidence of Don William and Benuel Tabi were confirmed when the Court visited the site. At that visit on 11th May 2005 the Court was shown as follows: -
(a) Gladys William – Her gardens are situated at the top-most end of Title 04/2621/008. Her houses (basically consisting of 2 old dilapidated buildings are situated on an offshore island on the front of Title 04/2621/008.
(b) Don William – His gardens, consisting mostly of coconuts, cocoa, bananas, fruit trees etc are found at the top-most part of Title 04/2621/008. His houses which consist of 2 – 3 buildings made of local materials are found near the coast of Title 04/2621/008.
(c) Kenway William – His gardens are adjacent to Don Williams at the top-most end of Title 04/2621/008 consisting of coconuts, cocoa, fruit trees, bananas etc. His houses are found adjacent to the river at the south-eastern side of Title 04/2621/008 consisting of up to 4 houses made mostly of local materials.
The sizes of Don and Kenway Williams plots on which their gardens and cash crops are grown including those on which their houses stand were not determined or shown by them. But according to their previous evidence at the first trial they both established that each of the sons of Ezra William was allocated 2 ½ hectares of land at the top of the old title, now Title 04/2621/008. This evidence was accepted by the Defendants to be correct.
As regards the other plots of land on which the houses of the Second Claimants stand, the Court is prepared to accept the Defendants submissions that they both occupied those areas only on licence by their father, Ezra William. During the visit by the Court on 11th May 2005 it was confirmed that all the Claimants are in actual occupation of part of the land within Title 04/2621/008.
During the Court visit to the site, Ezra William was not in the party. Don and Kenway William showed to the party the survey beg and the fence which separates the two Titles 04/2621/008 and 04/2621/009 (old Title 04/2621/001) from Title 04/2621/002.
2 A. Loss of Rights under Section 17(g)
The Claimants pleaded breaches of Section 17(g) under paragraph 11(c) of their Amended Claim. As it is understood by the Court their claims for compensation under paragraph 3 are made in connection with or in furtherance of those rights. The submissions by the Defendants that the Claimants did not claim section 17(g) rights are therefore rejected.
I deal first with Don and Kenway Williams claims under section 17(g) of the Act. They both gave evidence. They claim section 17(g) rights over the whole Title 04/2621/008 and 009. According to their evidence both claimants said their rights were in bloodline through their mother, Gladys William, the First Claimant. They both accepted that their father Ezra William, First Defendant has allocated 2 ½ hectares to each of them to farm and plant cash crops in July 1985. That right included the right to build houses anywhere on the land within Title 04/2621/008 and 009. The Defendants accepted that the Second Defendants’ rights under section 17(g) are only in relation to the 2 ½ hectares.
Conclusion in Regard to Second Defendants’ Rights Under Section 17(g)
From the evidence produced and due to the Defendants acceptance, the Court reaches the conclusion that Don and Kenway William, and the other brothers namely: William William, Tony William and Kelsin William are entitled to section 17(g) rights over the 2 ½ hectares allocated to them by their father. The Court is satisfied that the 2 ½ hectares are located at the top of Title 04/2621/008 and 009. As such the Second Claimants are entitled to be compensated for developments carried out by them in each of their respective plots within Title 04/2621/008. These may be subject to each of these brothers making Assessment Reports and submitting to the Court for Assessment of damages. The alternative course of action is for the Defendants to allow the Second claimants to have sub-leases. But that is a matter entirely on the Defendants and the Second Claimants to have further dialogues and to reach settlement over.
2B. Second Claimant’s Rights Under Section 17(g) as Licensees
The evidence by Gladys William, Don William and Kenway William show clearly that they are in actual occupation of the land in issue. From the Court visit to the site this was clearly apparent. From the driveway which is the only access road to the property from the main road, driving to the coast or back to the main road, Don William’s and Kenway William’s houses were clearly visible from a distance of about 30 to 50 metres. The Court party was not shown houses belonging to William William, Tony William and Kelsin William and there was no indication as to where they are. They could not be seen from the main road or the drive way into the property leading to the coast.
The Second Claimants gave conflicting evidence regarding constructive or actual notice. Don and Kenway’s evidence was that the Defendants did not make inquiries as to their occupation prior to executing the lease. William, Tony and Kelsin on the other hand said in their affidavit evidence that their father had called a meeting with them and informed them about his intentions to sell the land and that they would at some point have to vacate the land. Allan Cort’s evidence was that he negotiated the lease over some months and that he and Ezra William had actually walked the land and that he had spoken to some of the people living on the land. He did not specify if the people he spoke to were Don and Kenway William. There was no evidence by the Defendants to show that Ezra William and Allan Cort had sat down at any time with Don and Kenway to enquire of them what rights if any they had to the lands on which their houses now stand. There was no evidence by the Defendants that they wrote letters to Don and Kenway calling for explanations.
Conclusions by the Court
The Court is aware of the danger of accepting evidence by Tony, William and Kelsin who are part of the Second Claimants and yet who it appears, have taken sides with the First and Second Defendants. Therefore the Court accepts the Defendants evidence that they did make inquiries prior to executing the lease. However that evidence must be restricted only to enquiries made by AHC on Tony, William and Kelsin. Further the Court accepts that at the time of making inquiries that there were no objections raised in relation to the sale of property by Ezra William to Allan Cort. However, again that evidence must be restricted only to raising no objections by Tony, William and Kelsin.
The Court is satisfied on the evidence on the balance of probability that Mr Cort had constructive notice that Gladys William, Don and Kenway William were also in actual occupation of the land. He had talked with Ezra William and with Tony, Kelsin and William and it is in all probability likely they would have informed him about Gladys, Don and Kenway being on the land as well. That being so, it was incumbent on Ezra William and Mr Cort to have set down with Gladys, Don and Kenway and inquire of them about their rights to be on the land. That, they did not do.
When this matter went on Appeal as Civil Appeal Case No. 21 of 2004, the Court of Appeal said at paragraph 3 on page 14 of its judgment that:
“The onus of proof as to the making of due inquiry is on the proprietor of the registered lease. To discharge that onus the proprietor would have to establish that a sufficient enquiry was made before the proprietor because the registered proprietor of the lease.”
Further at paragraph 4 on page 16 of the judgment the Court said:
“That would be the situation unless AHC (Vanuatu) Ltd is able to prove that before registration of the transfers it made due enquiry of the appellants as to their rights to occupancy, and those rights were not disclosed.”
I am satisfied from the evidence that the enquiry by the Second Defendant fell short of proving that they had enquired about the rights to be on the land from Gladys, Don and Kenway William.
That being so, I am satisfied that Don and Kenway William’s rights to be on the land on which their houses stand are overriding rights under section 17(g) of the Act. These overriding interests subsist indefinitely into the future over Title No. 04/2621/002 and over their 2 ½ hectares specifically allocated to them by their father within Title 04/2621/001 which is now Titles 04/2621/008 and 04/2621/009.
The Court of Appeal held in Civil Appeal Case No. 21 of 2004 in relation to section 17(g) of the Act that the section operates in respect of rights which are recognized by the law of Vanuatu, and that a person in actual occupation who is a trespasser will have no rights which are protected by these provisions. Don and Kenway William are not trespassers on those parts of Title 04/2621/008 and 009 on which their houses now stand. Their right did not arise under custom law because the land is not customary land. Their rights derived from Ezra William when he was the registered proprietor of the lease.
As to the duration of the rights subsisting the Court of Appeal has held that:
“..... if the person in actual occupation of land is there pursuant to an equitable proprietary interest, the protection will subsist as long as the equitable interest continues. In such a case, the nature and duration of the equity will have to be determined. Where the interest is one acquired through or under a previous proprietor of a registered lease, the interest may continue for as long as the term of the lease.”
In the instant case it is the view of the Court that Ezra William’s rights to the lease ended on the date of transfer of the said leasehold titles to AHC Ltd. That being so, it is also the Court’s view that the rights of Don and Kenway as licensees also ended on the same date. It follows therefore that any development done to those parts of the land, including the planting of any cash crops or fruit trees of value therein during the time of their occupation, and including the costs of putting up houses would have to be done or assessed, and compensated by the Second Defendants.
It is however clear that Don and Kenway and their other brothers have equitable interests over their 2 ½ hectares of farm land at the top of Title 04/2621/008 and 009. Those rights constitute overriding interests within section 17 of the Act and continue to subsist not-withstanding the registration of AHC Ltd as proprietor.
3. Claims by Gladys William, First Claimant
At paragraph 7 of the Amended Claim she pleads her right to remain and work the whole property which includes the old Title 04/2621/001 (now 04/2621/008 and 009) and old Title 04/2621/002 pursuant to an order of the Magistrate’s Court when she sued Ezra William for Maintenance after 30th July 1980.
At paragraph 11(a) of the Amended Claim she pleads breach of promise and Agreement by the First Defendant, Ezra William when he failed to pay VT40,000 per month as ordered, and agreed to give her the right to remain on and work the land to satisfy the terms of the court order.
At paragraph 10 she pleads effecting substantial development in terms of growing cash crops on Titles 04/2621/008 and 009.
Mrs William gave oral evidence. She is separated though not legally, from Ezra William the First Defendant who is the father of Don, Kenway, Tony, William and Kelsin. She has not instituted any separate matrimonial proceedings and has made no claims in respect of matrimonial property and the determination and division thereof.
She gave evidence in regard to the court order in or after 30th July 1980. She could not recall the exact date and could not produce a copy of the order. She said the presiding Magistrate was Mr Norris.
In any event Ezra William in his affidavit evidence accepts that there was a Court Order to pay her VT40,000 per month as maintenance. He admits that he could not pay that sum as he had no money to do so. He accepts that because he had failed to pay, that he was recalled to appear before the Court where he states that “...... the judge said that instead of paying the money, my wife could live on the land encompassed by registered leasehold title Nos. 04/2621/001 and 04/2621/002” (old Titles).
It is common ground that the Court could not have said or ordered such unless and until the First Defendant himself had agreed to do that.
As to the issue of actual occupation, Mrs William said she lives on the offshore island within Title 04/2621/008 and 009. At the visit to the site this was confirmed. She has 2 old houses. Her gardens of yams, bananas, etc are found at the top of titles 008 and 009 (old Title 04/2621/001).
The Defendants did not produce any oral evidence. Their evidence by affidavits do not show to the contrary. The Defendants have accepted however that Mrs Gladys William is entitled to a house and surrounding land on Ezra William’s property. And the Defendants have made offers to Mrs William in that regard.
Conclusions by the Court on the Issues As Regards Gladys William
The answer is yes. The findings made in respect to Don and Kenway William apply.
The answer is yes. The findings made in respect to Don and Kenway William also apply.
The answer is no. The findings made in respect to Don and Kenway William also apply.
The answer is yes but that licensee is recognized and protected by law. She has equitable rights to be on the land. Those rights derived from the agreement implied by the Court Order to which Ezra William has acknowledged and accepted was made. Equity imposes a trust on Ezra William to fulfill his promise under the Court Order.
The answer is yes. She is protected under Section 17(g) of the Act over the whole property namely Titles 04/2621/008 and 009 and also over Title 04/2621/002 (Old Title).
From the evidence, the Court is satisfied that it was not a definite right intended to have value month by month to offset the periodic maintenance payable under the Court Order. Rather the Court is satisfied that it was an ongoing right or equity to occupy the house and the surrounding land in exchange for her permanently foregoing the benefit of the Maintenance Order. That being so, the Court is satisfied that the agreement was made subject to an implied condition that it would apply for the life of Gladys William, and therefore it could not operate beyond the term of the lease.
The answer is yes. She is entitled to be compensated for cash crops in her gardens at the top of Title 04/2621/008 and 009, and for her houses and the Island on which she lives. She is also entitled to compensation for any other developments that she effected on the whole land in her equitable interest as tenant in common within Ezra William.
Judgment is therefore now entered in favour of the First and Second Claimants.
There will be no order as to costs. Each party are to pay their own costs.
Parties are encouraged to adopt sensible steps to ensure that this case is amicably settled and laid to rest. It has gone on for long enough. There are some proposed courses of action open to the Parties as follows:-
(1) Don and Kenway may obtain valuations of their houses and cash crops including fruit trees on the land on which their houses now stand including its immediate surroundings and submit their claims for compensation to the Defendants for payment. In the event of a disagreement, the matter be brought before the Court for Assessment at the costs of the disagreeing party.
(2) Don and Kenway may accept the Defendants offer to meet all relocation costs to the top of their respective 2 ½ hectare plots at the top of Titles 04/2621/008 and 009.
This should be separate but in addition to compensation for property as in paragraph 1 above.
(3) Gladys William may obtain valuations on her 2 houses and her Island and all the valuable cash crops on the island, including the reefs and the crops in her gardens at the top of Titles 04/2621/008 and 009 and submit for payment by the Defendants, failing which the matter be assessed by the Court.
(4) Alternatively but in addition to the above compensation, Gladys William may accept the Defendant’s offer to meet all relocation costs, including transport costs etc to the top of Titles 04/2621/008 and 009.
(5) The Second Defendant may do and maintain a proper access road for the benefit of the Claimants to their 2 ½ hectares plots at the top of the Titles in issue.
DATED at Luganville this 22nd day of July, 2005.
BY THE COURT
OLIVER A. SAKSAK
Judge
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