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Kalsakau v Kalsakau [2008] VUSC 34; Civil Case 35 of 2008 (7 April 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No.35 OF 2008

BETWEEN:

STEPHEN KALSAKAU MP, JOSHUA KALSAKAU MP, JOSEPH KALSAKAU,
IAN KALSAKAU, YOAN KALSAKAU, EPHRAIM KALSAKAU and
SERETANGI KALSAKAU authorised representatives of the majority
KALSAKAU WARAKAI FAMILY of Port-Vila, Vanuatu
Claimants

AND:

KALPOKOR KALSAKAU
First Defendant

AND:

THE DIRECTOR OF LAND RECORDS

Second Respondent

Mr Edward Nalyal for the Applicants
The First Respondent not present nor legally represented
Mr Dudley Aru, Solicitor General, for the Second Respondent

JUDGMENT

This is an Urgent Application filed by Mr Nalyal on behalf of the Applicants. It is filed on 1st April 2008. A sworn statement of one Yoan Kalsakau is filed in support of the application. The Urgent Application seeks for the following Orders:-

1. An order that the agreement and signature of the First Defendant as lessee under the leases 12/0911/332 and 12/0911/334 (the "Leases") be dispensed with on transfer of the Leases to Sarasara Tulakeraga Limited (the "Company").

2. The Claimants as lessors and lessees under the Leases act on their behalf and on behalf of the First Defendant to transfer the Leases to the Company.

3. The Second Defendant effect registration of the transfer of Leases to the Company.

4. Any proceeds from development of the land comprised in the Leases be shared equally between the Claimants and the First Defendant. If the First Defendant refuses to accept his share of the proceeds then his share of the proceeds be deposited into the trust account of the Chief Registrar of the Supreme Court and the First Defendant be at liberty to claim his share of the proceeds from the Court at any time.

5. Costs of this application be paid by the First Defendant.

6. Such further relief the Court deems fit.

The grounds of the application are that the Applicants have signed a joint venture agreement with Italian Investors for the purposes of developing the land on which 2 leasehold titles: 12/0911/332 and 12/0911/334 were created.

The Italian Investors are anxious to start development of the said land. Mr Yoan Kalsakau deposed in his statement that the First Defendant, Mr Kalpokor Kalsakau, refuses to agree to transfer leases titles 12/0911/332 and 12/0911/334 to the Family company to enable further transfer to the joint venture company. It is causing delay. The Investors are proposing to withdraw their proposed investment unless the Court can issue the Orders sought in the Urgent Application.

On 31 March 2008, the Applicants filed a Supreme Court claim claiming damages to be assessed against the First Defendant, Mr Kalpokor Kalsakau, and the Director of Land Records, as the Second Defendant.

There is no allegation made nor any remedy sought against the Second Defendant. One wonders why the Second Defendant is named as a party in this proceeding.

Not surprisingly, the Solicitor General, Mr Dudley, filed an application on behalf of the Second Defendant seeking an order to be removed as a party in this proceeding with a sworn statement of one Frederick Loughman of State Law Office in support. The application is listed for hearing on Monday 7 April 2008 in the afternoon.

During the hearing of the said Urgent Application, and upon arguments and submissions of the parties, it becomes apparently clear that most of the Orders sought in the application are beyond the powers of the Court.

As to order sought in paragraph 1, the Court has no power to make an order dispensing with the agreement and signature of the First Defendant, Mr Kalpokor Kalsakau, who is lessee on the leasehold titles in question. There is no power of the Court to dispense with the agreement and signature of a lessee on a lease for the purpose of transfer of the leases to a company.

As to order sought in paragraph 2, the Court has no power under the Land Leases Act [CAP.163] to do what is sought.

As to order sought in paragraph 3, the Court has no power to effect registration of the transfer of leases to a company. The power of the Court under Section 100 of the Land Leases Act is to order rectification of the register if registration has been obtained, made or omitted by fraud or mistake.

As to the remedy sought in paragraph 4 of the Urgent Application, it is premature. The Court cannot substitute itself to the wishes of the parties as to how they wish to share their future proceeds yet to be eventuated.

At the end of the arguments and submissions, Mr Nalyal, then applies to withdraw the Applicants’ Application and the claim. The Court makes the following Orders:-

1. The application and claim of the Claimants are withdrawn.

2. The Second Defendant are entitled to their costs awarded in VT25,000 against the Applicants.

3. The Applicants to pay such amount of VT25,000 to the Second Respondent by 14 days from 7 April 2008.

DATED at Port-Vila this 7th day of April 2008

BY THE COURT

Vincent LUNABEK
Chief Justice