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

Civil Case No. 14 of 2013

BETWEEN :

ISAAC WORWOR
Claimant

AND:

THE ESTATE OF PETER LONON MANSOP
First Defendant

AND:

JIMMY LONON
Second Defendant

AND:

THE REPUBLIC OF VANUATU
Third Defendant

Coram: Justice Aru
Counsel: Ms. P. Kalwatman for the Claimant
Mr. S. Stephen for the Second Defendant 
Mr. F. Gilu and Jennifer Warren for the Third Defendant

JUDGMENT

Introduction

1.	The claimant Issac Worwor brings this claim in a representative capacity on behalf of family Worwor, family Gemgem, and family Makelili and family Sak. He was authorized by letter dated 3 December 2012 (Annexure ‘IW1’ of his sworn statement) before the claim was filed on 6 February 2013. He seeks rectification of two leases under section 100 of the Land Leases Act [CAP 163]. First agriculture lease title 08/0141/001 (001 lease) and secondly residential lease title 08/0134/022 (002 lease). The two leases were registered with Peter Lonon Mansop (deceased) as lessor and Jimmy Lonon as the lessee.

Background

2.	The following chronology of events are not disputed:-

•	On 4 November 1996 the senior magistrate sitting with three assessors as the island court in Land Case No 3 of 1994 held at Ranon, Ambrym declkared family Sak (in cluding Aro and Peter Mansop; family Worworkon; family Thomas Gemgem and family Makelili to be the perpetual custom owners of the land between Tolawelvantoa creek and Liptaviu creek;

•	On 3 December 1996 Peter Mansop appealed the decision to the Supreme Court;

•	On 20 April 1998 the Kastom Ona Blong Kraon Form was sent to North Ambrym Area Council of Chiefs who confirmed on the form that there was no dispute over custom ownership of land subject to titles 508, 509 and 610 and returned the Form to the department of Lands on 18 May 1998. The date of their meeting was noted on the Form to be 2 June 1994;

•	On 10 August 1998 a certificate of Registered Negotiator was issued to Peter Mansop; 

•	On 28 October 1998 the 001 lease and 002 lease were registered by the Director of Lands with Peter Mansop as lessor and Jimmy Lonon as lessee;

•	On 12 May 1999 the claimant applied for and lodged a caution at the Department of Lands on the 001 and 002 lease titles;

•	On 12 May 1999 the Department of Lands received a copy of the 1996 Island Court judgment;

•	On 11 June 1999 a caution was registered in favour of the claimant Isaac Worwor against the 001 and 002 leases; 

•	On 15 May 2003 the appeal against the 1996 Island Court judgment was withdrawn.

Evidence 

3.	The evidence for the claimants was given by Issac Worwor in his sworn statement filed on 22 February 2014. The sworn statement was tendered as exhibit ‘C1’. He was cross examined on his evidence. The second defendants relied on the evidence of Jimmy Lonon and Sollie Mansop whose sworn statements were both filed on 5 May 2014. Their evidence was tendered as exhibit ‘D1’ and ‘D2’ respectively. They were also both cross examined. The third defendant relied on the evidence of Paul Gambetta. He filed his sworn statement on 21 May 2014. It was tendered as exhibit ‘3D1’.He was also cross examined.

Issues 

4.	The primary issue is whether the 001 and 002 leases were obtained by fraud or mistake. If the claimant is successful on this issue, then the next question is whether he would be entitled to any damages.

Law

5.	Section 100 of the Land Leases Act provides:-

“100.	Rectification by the Court
(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 or 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.”

Discussion 

Fraud or Mistake 

6.	Section 100 provides that rectification of the register can only be made by the court if it is satisfied that that any registration was obtained, made or omitted by fraud or mistake. The Court of Appeal in their observations in relation to section 100 in Naflak Teufi v Kalsakau [2005] VUCA 15 said:-

“We are satisfied that the object of the section is to ensure that the land register and the processes leading up to the registration of any instrument or interest is free of any  mistakes, fraud  or possible fraudulent activities. In other words, its purpose is to secure the integrity of the register and the internal processes culminating in registration. The section, in its terms, is one which empowers the Supreme Court where it is satisfied that any registration has been obtained, made, or omitted by fraud or mistake, to order rectification of the register by directing that any registration may be cancelled or amended.”

7.	The Court went further to endorse what it said in Jone Roqara & Ors v Noel Takau & Ors [2005] VUCA 5 that:-

“For a party seeking rectification under s. 100 of the Land Leases Act, it is not sufficient to prove that a mistake occurred in the course of a transaction which ultimately concluded in registration of the interest which is sought to have removed from the register. In terms of s. 100, the Court must be satisfied that the "registration has been obtained, made or omitted by fraud or mistake ". The section imposes a causal requirement. The mistake must lead to the impugned registration being made. The onus is on the party seeking rectification not only to establish a mistake, but also to satisfy the Court that it caused the registration to occur.."

Island Court Judgment

8.	A preliminary point raised by the second defendant is that the declaration of custom ownership was made by the Senior Magistrate Court and not the Island Court and secondly that the judgment has no validity as it was not signed. Both these arguments are rejected for the following reasons. First, the Island Court Rules (Powers of Magistrates) order No 1 of 1990 sets out the powers, functions and duties of a Magistrate when presiding over an Island Court dealing with disputes over custom ownership of land. The Magistrate has the same powers as a Senior Magistrate (Order 1 (1) (e)) and he can summon justices to assist him hear the case (Order 1 (1) (h)). It is evident that Magistrate Bruce Kalotiti sat with three assessors namely Talimban August, Luc Johnny and John Job.

9.	Regarding the validity of the judgment, there is no question that it was pronounced in open court on 4 November 1996. This is confirmed by Jimmy Lonon at paragraph 3 of his sworn statement. The fact that it was delivered by a another magistrate and signed at a later date does not change the fact that it is a valid judgment and it can only be set aside on appeal.

10.	At paragraph 19 of the judgment under the heading Declarations, at paragraph (d) and (e), the Island Court declared the perpetual owners of land between Tolawelvanto creek and Liptaviu creek as follows:-

"d) The court is satisfied that family Jimmy Sak, (including Aro and Peter Mansop); Family Worworkon; Family Thomas Gem Gem and family Magalili are perpetual custom owners of the land between Tolawelvantocreek and Liptaviu creek. 

e) Their rights include the right to grow crops, make gardens, build houses and live on the land."

11.	Peter Mansop then appealed the judgment to the Supreme Court within the 30 days appeal period by filing his appeal on 3 December 1996. Whilst the appeal was still pending determination in the Supreme Court, Peter Mansop obtained registration of the 001 and 002 leases. Issac Worwor at paragraph 5, 7 and 9 of his sworn statement confirms that they did not consent or authorize Peter Mansop to obtain and register the leases in his own name. Jimmy Lonon under cross examination confirmed that Peter Mansop was not the sole declared custom owner of the land in dispute but that he was declared with the others as custom owners. Given the evidence, I am satisfied and accept that Peter Mansop did not get authorization from the other declared custom owners of land between Tolawelvanto creek and Liptaviu creek before registering the two leases. 

12.	The second defendants submit that as Peter Mansop (deceased),never gave evidence in court or was never cross examined on the kastom Ona Form and the Application for Ministerial consent, it would be incorrect to suggest that he knew the land was in dispute but withheld such information from the Department of Lands. It was further submitted that there was no mistake by the Department of Lands as the Kastom Ona Form which they relied on to effect registration clearly stated that there was no dispute. 

13.	The third defendants on the other hand submit that the 001 and 002 leases were registered in accordance with the information provided to them and it is not for the Director of Lands to check the validity or verify any information supplied in support of an application to register. Therefore no mistake could be attributed to the Director as he acted in good faith and is therefore indemnified by section 9 of the Land leases Act. 

14.	The submissions of the defendants are rejected for the following reasons. 

Kastom Ona Form 

15.	The Kastom Ona Fom (Annexure 'PG2' of Paul Gambetta's sworn statement) which was sent to the North Ambrym Area Council of Chiefs by the Department of Lands on 20 April 1998 was returned to the Department on 18 May 1998. The North Ambrym Area Council of Chiefs relying on a decision in their meeting of 2 June 1994 declared Peter Mansop as custom owner of the area concerned and stated on the Form that there was no dispute.

16.	The judgment of the Island Court to which Peter Mansop was declared with the other parties as custom owners was issued on 4 November 1996 some two years after the decision of the North Ambrym Area Council of Chiefs. The Island Court judgment takes precedence over the North Ambrym Area Council of Chiefs decision but the Island Court judgment was not disclosed to the Department of Lands by Peter Mansop before registration of the two leases.

Ministerial consent 

17.	Following the grant of Ministerial consent, the negotiator certificate which was approved on 10 August 1998 (Annexure 'PG 4' of Paul Gambetta's sworn statement) was issued to Lonun Peter as a registered negotiator. Paragraph 3 identifies the custom owner also as Lonun Peter and paragraph 4 of the negotiator certificate states that:-

"The above person is the authorized representative of the custom owners for the purposes of negotiations under the Land Reform regulation Cap 123."

18.	Issac worwor in his sworn statement referred to at paragraph 11 above confirmed that the other custom owners did not authorize Peter Lonon Mansop to obtain registration of the two leases in his own name.

Appeal

19.	Following the judgment of the Island Court, Peter Mansop appealed and filed his Notice and Grounds of Appeal on 3 December 1996. Whilst the appeal was still pending before the Supreme Court, Peter Mansop applied and registered the 001 and 002 leases with him as the lessor and Jimmy lonon Mansop as the lessee. The pending appeal was not brought to the attention of the Department of Lands before registration of the two leases.

20.	As the appeal was withdrawn, the judgment gives finality to the dispute over custom ownership of the land in question.

Conclusion 

21.	Despite the fact that Peter Mansop did not give evidence as he is now deceased, the evidence adduced leads me to the conclusion that on the balance of probabilities, Peter Mansop fraudulently held back information from the Department of Lands which led to their mistaken belief that the information they had was correct in order to register the two leases. Peter Mansop omitted to inform the Department of lands of the Island Court declaration of custom ownership of land between Tolawelvanto creek and Liptaviu creek and the fact that he had appealed the Island Court judgment and the appeal was still pending before the Supreme Court.

22.	 I am satisfied that had this information been made available to the Department of Lands the 001 and 002 leases would not have been registered. The omission amounts to a fraudulent act perpetrated by Peter Mansop to obtain registration in his favour as he became the lessor and his son became the lesee. 

23.	Regarding the claim for damages the claimant has not proved or shown in his evidence that he suffered any damage. I therefore make the following orders:-

ORDERS

1.	The Director of the Department of Lands shall rectify the Land Leases Register by cancelling residential leases title 08/0141/001 and 08/0134/002 forthwith;
2.	The claim for damages is dismissed;
3.	The claimant is entitled costs on a standard basis to be taxed or agreed.

DATED at Port Vila, this 25 day of May, 2015.

BY THE COURT

…………………
D. Aru
Judge