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Johnny v Polo [2016] VUSC 139; Civil Case 83 of 2015 (18 October 2016)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU Civil Case No. 83 of 2015
(Civil Jurisdiction)

BETWEEN: SEL JOHNNY, TOM SAUTE, JOEL SEL, IOLU

TONG, JOE IAUTIM, TOM NALAUAS,

ARMSTRONG NIMISA, PETER NAMAK

representing 400 natives of the MANIK TRIBE

Claimants

AND: IAUILU POLO, NAKOU ERNEST & NAKOU

IAUREL SAKARMI

First Defendants

AND: IAUILU POLO, NAKOU ERNEST & NAKOU

IAUREL SAKARMI

Second Defendants

AND: REPUBLIC OF VANUATU
Third Defendant

Coram: Mr. Justice Oliver A. Saksak

Counsel: Daniel Yawha for the Claimants
Justin Ngwele and Gregory Takaufor First and Second Defendants
Sammy Aron for Third Defendant.

Date of Hearing : 30^th March 2016 and 14 June 2014
Date of Judgment: 18^th October 2016

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JUDGMENT

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Introduction

1. This is a claim filed by the Claimants pursuant to Section 100 of the Land Leases Act [CAP.163] (the Act).
   
2. The Claimants claim that the alteration of Leasehold title 14/2231/001(Lease 001) into a new Leasehold title 14/2231/014 (Lease 014) by the defendants amounted to fraud and/or mistake.
   
3. The Claimants seek orders that-
   1. Lease 014 be cancelled for mistake or fraud, or
   2. In the alternative, a declaration that the defendant’s proper lease is Lease 001 and not Lease 014,
   100. Costs, and
   4. Any other orders deemed just.
      

Facts

4. The facts can be understood from the following chronology of event helpfully set out in the Claimant’s submissions-

These facts do not appear to me to be in dispute.

The Issues

5. The issues as raised by the Claimants are-
   
   1. Whether the Director of Lands, Survey and Registry wrongly invoked his power under section 99 of the Act to alter Lease 001 for 2 hectares in favour of the First and Second Defendants by substituting the figure “ 014”?
      
   2. Whether the wrongful actions of the Director in doing so constituted fraud and/or mistake?
      

Discussions

6. From the facts deduced from the evidence, it is apparent there were 2 separate leases. Lease 001 covering a specific area of 2 hectares and Lease 014 which covers a larger area of 72 hectares.
   
7. The First and Second Defendants properly applied for a negotiator certificate which was properly granted by the Third Defendant.
   
8. Evidence also shows that on 8^th December 2011 when Lease 001 was presented for registration, the figure “001” was crossed out and substituted with “014” and registered on the same date. However the new survey plan was now for an area of 72 hectares.
   
9. Was there a mistake made? The answer in my view is “ yes’. It was a substantive mistake. The size of the land being 72 hectares was such that it should have given rise to suspicion and questions. It should have given rise to the need to advise the First and Second Defendants to apply for a new certificate of registered negotiator. Section 6(1) of the Land Reform Act Cap 123 requires an application to the Minster. Subsection (3) provides that the Minster may refuse to approve any agreements where negotiations are made without a certificate of registered negotiator. The First and Second Defendants rely on the case of Bernard ItaiLauto.v. TimaimaLauto& others CC 152 of 2012.
10. In my view this case does not assist the First and Second Defendants and even the Third Defendant.
    
11. Mr Peter Pata, the only witness of the Third Defendant made clear admissions of mistake at paragraphs 12 and 13 of his sworn statement dated 5^th November 2014 tendered as Exhibit TD1. That is sufficient for the Court to find in favour of the Claimants.
    
12. Both issues are therefore answered in the affirmative.
    
13. Judgment is therefore entered in favour of the Claimants.
    
14. The Claimants are entitled to the first relief sought. The second relief sought is declined.
    
15. The orders of the Court are-
    
    1. The Director of Lands, Survey and Registry is hereby Ordered to cancel the registration of Lease Title No. 14/2231/014 forthwith.
       
    2. The Claimants be entitled to their costs of and incidental to this action on the standard basis as agreed or be taxed by the Master.
       

DATED at Port Vila this 18^th day of October, 2016

BY THE COURT

OLIVER.A.SAKSAK

Judge