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Kwila Ltd v Republic of Vanuatu [2016] VUSC 15; Civil Case 40 of 2014 (26 February 2016)

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

Civil Case No. 40 of 2014

BETWEEN:

KWILA LIMITED
First Claimant

AND:

TERRA HOLDINGS LIMITED
Second Claimant

AND:

REPUBLIC OF VANUATU
Defendant

Coram: Mr. Justice Oliver A. Saksak
Counsel: Justin Ngwele ( Indigene Lawyers) for the First and Second Claimants
Lennon Huri ( State Law Office) for the Defendant

Hearing Date: 21st September 2015
Judgment Date: 26th February 2016 @ 8:15am

JUDGMENT

Introduction

1. This is a claim for general, special and exemplary damages allegedly for breach of statutory duty.
   
2. The claimants alleged that the Minister of Internal Affairs (the Minister) had breached section 4 of the Foreshore Development Act [CAP.90] (the Act) by failing to consider representations made to him as a result of the advertisements of the claimant's applications.
   
3. Background Facts
   

1. In Relation to Kwila Limited ( First Claimant)-
   
   • They are the registered proprietor of leasehold title 12/0912/631 ( Lease 631)
   • On 3rd March 2008 the First Claimant made application to the Minister for a foreshore development permit in order for them to undertake reclamation and rehabilitation of Ewanesu Island at Emtem Lagoon, South Efate.
   • On 16th September 2008 the Minster approved the said application.
     
2. In relation to Terra Holdings Limited ( Second claimant)-
   
   • They are the registered proprietor of leasehold title 11/0F12/003 ( " Lease 003")
   • On 27th September 2011 the second claimant made application to the Minister pursuant to section 3(1) of the Act for reclaimation of land beyond the boundary of Lease 003 and for excavation of Kawenu Cove ( the proposed development).
   • In addition to applying the Second Claimant was also required to obtain approval for the development under the provisions of the Environmental Protection and Conservation Act [ CAP.283].
   • The Second Claimant caused an advertisement of their application and a public notification of their proposals in the Newspaper.
   • A public meeting was organised and held at the SHEFA Provincial Government office for a wider consultation on 29th October 2011.
   • Subsequently the Minister approved the Second Claimant's application on 1st December 2011.
     

Claims

4. The First and Second Claimants claim that-
   
   1. Upon reliance on the approvals granted by the Minister the First and Second Claimants undertook reclamation works on Ewanesu Island and Kawenu Cove respectively.
      
   2. During the course of the reclamation works at Kawenu Cove a group of Ifira Custom – landowners took legal proceedings seeking restraining orders against the Second Claimants. The Supreme Court granted the restraining orders. The Second Claimants appealed but were unsuccessful. The restraining orders remain in force and all works have stopped. The cases are referred to as CC 242/2011 Barak Sope & Ors .v. Terra Holdings Ltd & Ors and CAC 4/2012.Terra Holdings Limited & ors .v. Barak Sope & Ors.

Another proceeding was instituted by Kwila Ltd against Ronald Joseph CC 105/2010 whereby the Court Ordered the First Claimant to pay damages to the defendant.

100. Both proceedings emanated from the Minster's granting approvals for foreshore development on Lease 631 and 003.
     

4. They applied for permit in accordance with law and in good faith.
   
5. They expended in excess of VT 40. Million in relation to Lease 631 and in excess of VT 50 million in relation to Lease 003.
   
6. Their proposed developments on the said leases have halted and they have suffered and are continuing to suffer loss and damages.
   

Reliefs

5. The claimants the following reliefs-
   
   1. A declaration that the Minister breached section 4 of the Act.
   2. General, Special and exemplary damages
   100. Costs of the proceedings, and
   4. Such other orders as the Court deems fit.
      

Defence

6. The defendant filed a defence on 1st July 2014 which indicates that the defendant denies the pleadings in paragraphs 1, 2,3,4,5,6,13.14,15,16,17,18,19,20, 23 and the reliefs sought. They accept or admit the pleadings at paragraphs 3, 8, 9, 10, 11, 12, 21, and 22. These are factual assertions of the claimants.
   
7. The Evidence
   

1. The Claimants relied on their evidence by sworn statement filed on 11th September 2014 by Dinh Van Tu also known as Aku Dinh ( Exhibit C1). He is the shareholder and a director of both Kwila Ltd and Terra Holdings Ltd. That is the only evidence by the claimants.
   
2. The defendant relied on the evidence of Trinison Tari by sworn statement filed on 9th April 2015 (Exhibit D1). That is the only evidence by the defendant.
   

The Issue

8. The claimants raised only one legal issue as follows: Whether the Minster of Internal Affairs has an implied duty or discretion to consult with the custom-owners before granting approvals for foreshore developments to the claimants? There were no factual issues raised.
   

Submissions

9. The defendant filed written submissions earlier in time on 8th December 2015. The Claimants filed their written submissions on 16th December 2015.
   
10. The Claimants submitted that-
    
    1. The evidence of Dinh Van Tu is unchallenged and has not been rebutted by the defendant.
    2. Dinh Van Tu is a reliable witness and his evidence should should be preferred and given weight.
    3. The defendant's witness Trinison Tari is not a reliable witness and his evidence should not be given weight and relied upon.
    4. The defendant could have called other witnesses from the Ministry of Internal Affairs and from the Physical Planning Unit but did not.
    5. The Foreshore Development Act does not confer on the Minister a duty to consult with custom owners of land prior to the granting of approvals for foreshore developments.
    6. The duty is only an implied one and they relied on the case authority of Terra Holdings Ltd .v. Sope, Civil Appeal Case No. 4 of 2012.
    7. The Minister breached that implied duty and as a result the proposed developments of the claimants were halted, causing substantial losses.
    8. The claimants are entitled to damages by way of compensation. They relied on the case authority of Ferguson.v. Kinnoul (Earl) (1842) 9 Cl & F at 280 and on Dawson & Co.v. Bigley Urban District Council [1911] 2KB 149 at 156.
       
11. The defendants submitted that-
    
    1. Section 4 of the Foreshore Development Act does not specifically confer a duty on the Minister to consult with custom owners of land prior to granting approval for foreshore developments.
       
    2. Section 4 of the Act cannot be interpreted in isolation but together with Article 73 and Article 5 (1) ( j) of the Constitution.
       
    3. There was a public consultation meeting held whereby some members and representatives of the custom owners were present.
       
    4. No statutory duty was breached by the Minister.
       
    5. Even if there was a breach which they deny, such breach does not give the claimants a private law right of action sounding in damages. They relied on Clerk and Lindsell on Tort at paragraph 11-03 and 11-07 and the cases of R v Deputy Governor of Parkhurst Prison, exp. Hague [1990] UKHL 8; [1991] 3 ALL ER 733, and M.V Newham L.B.C [ 1991] ALL ER 602 at 625.
       
    6. On the authority of Kippon.v. Attorney General, Civil Case No.120 of 1994 the claimants have not established any civil liability for a breach of statutory duty as they have to show-
       1. The injury they sustained was within the ambit of the statute,
       2. The statutory duty imposes a liability to civil action,
       100. The statutory duty was not fulfilled, and
       4. The breach of that duty has caused injury to them.
          
    7. Even if the Minister did not exercise his powers correctly, which they denied, the proper cause of action for the claimants would be a claim for judicial review.
       

The Law

12. Section 4 of the Foreshore Development Act ( as amended) states:
    

" 4. Decision of the Minister

(1)Upon receiving an application under subsection 3(1) the Minister acting on the advice of the Director may:

1. Grant the consent, or
2. Refuse to grant the consent, or

100. Grant the consent subject to such other conditions.

4. The Minister must not grant his or her consent under this section if the prescribed file is not paid"
   

13. Article 5(1)(j) of the Constitution states:
    

"5.Fundamental rights and freedoms of the individual

(1) The Republic of Vanuatu recognises, that subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental risks and freedoms of the individual without discrimination on the grounds of race, place of origin, religions or traditional beliefs, political opiniions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interests in defence, safety, public order, welfare and health-

(j) Protection for the privacy of the home and other property and from unjust deprivation of property....."

14. Article 73 of the Constitution States:
    

"73. Land belongs to custom owners

All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants."

15. Section 1 of the Land Leases Act [CAP.163] states:
    

" 1.Interpretation

In this Act unless the context otherwise requires-

"land" includes land above the mean high watermark, all things growing on land and buildings and other things permanently affixed to land but does not includes any minerals ( including oils and gases) or any substances in or under which are of a kind ordinarily worked for removal by underground or surface working".

16. Section 1 of the Foreshore Development Act states:
    

"1 Interpretation

For the purpose of this Act:

"Foreshore" means the land below mean high water mark and the bed of the sea within the territorial waters of Vanuatu ( including the ports and harbours thereof) and includes land below mean high water mark in any lagoon having direct access to the open sea".

Discussions

17. There is no issue that the proposed developments for which permits were required on Leases 631 and 003 were to be made on "land" defined as " foreshore" in the Land Leases Act and the Foreshore Development Act.
    
18. I consider first the Kwila Limited Lease 631. The only evidence by Dinh Van Tu regarding this lease are found on paragraphs 5, 6, 7 and 8 of his sworn statement filed on 11th September 2014 ( Exhibit C1). The deponent states that he is the registered, proprietor of Lease 631. He has not disclosed a copy of the lease. In their defence the defendant plead that the leasee of Lease 631 is Bellevue Estates Ltd but unfortunately the defendant too has not disclosed a copy of that lease. Therefore the issue of proprietorship remains uncertain.
    
19. At paragraph 6 of the statement the first claimant states that on 3rd March 2008 they made application to the Minister seeking consent. The claimant did not disclose the application. However the defendant did. In the sworn statement of Trinison Tari ( Exhibit D1) the application for consent is annexed as " TT1" undercover of the letter dated 3rd March 2008. The applicant is shown as Kwila Ltd C/- of Aku Dinh. The owner and Land title is shown as 12/0912/631.
    
20. In paragraph 7 of the statement the first claimant states that on 16th December 2006 the Minister approved their application. The approval or consent is not in the sworn statement of Trinison Tari as annexure " TT2". The date shown on the letter is 16th September 2008 and it is addressed to Kwila Ltd C/- Aku Dinh.
    
21. From those evidence and in all probability it can and must be accepted that the lease and proprietor of Lease 631 is Kwila Ltd, the first claimant herein.
    
22. Finally in paragraph 8 of the statement the first claimant states that they have invested VT 40 million into the reclamation and rehabilitation development of Lease 631 and Ewanesu Island. There is however no evidence to support and substantiate that claim.
    
23. I have other difficulties with the claims of the first claimant as follows:-
    
    1. First, from the evidence I find the first claimant did not comply with the requirements of the permit or approval granted by the Minster on 16th September 2008. For ease of reference and assistance I set out the full text of the approval ( annexure " TT2") below:
       

" Ref: MIA 202/2/212/13/08/JN/js

Kwila Limited

C/- Aku Dinh

Vanuatu Stick

Port Vila

Tel: ( 678) 7742528

Re: FORESHORE DEVELOPMENT

MINISTERIAL CONSENT FOR THE RELCLAMATION BELOW HIGH MEAN WATER MARK (HMWM), LAND TITLE 12/0912/631, EWANESU ISLAND, SOUTH EFATE

In pursuance of the powers granted to me under the Foreshore Development Act (Cap.90), I am empowered to determine your application dated 03rd March 2008 for the reclamation beyond land title no. 12/0912/631, Ewansu (sic) Island, South Efate.

I have perused your application and after due consideration noted that the application is in itself made on the basis to beautify the shore line as well as develop the area for future commercial purposes. Under the Foreshore Development Act, I do not foresee any difficulties as regard the future potential development provided.

In light of the above I hereby grant you APPROVAL to the application provided that you adhere strictly to the following conditions,

1. The consent hereby granted shall lapse and be of no effect of the development has not commenced within (1) year of the date of consent or completed within two ( 2) years of the date or such extended period as I may specify.
   
2. The development must be carried out strictly and in accordance with the plan.
   
3. The project proponents to cooperatively and collaboratively work with the following authorities, namely, the physical planning Unit, the Department of Provincial Affairs, the Department of Geology and Mines, the Department of Ports and Marine, Shefa Provincial Government Council and the Environmental Unit to ensure a sustainable development.
   
4. Environmental Management of the area to be exclusively the sole responsibility of the developer and to be kept clean to the satisfaction of the Minster of Internal Affairs in line with the Foreshore Development Act as well as the Environmental Management and Conservation Act.
   

This consent is made under the Foreshore Development Act ( Cap.90) only and no other enactment, byelaw, order or regulation. Development on the shore or above the High Mean Water Mark (HMWM) will require permission either form Shefa Provincial Government Counsel under the Physical Planning Act ( Cap.193).

Please acknowledge receipt of this decision within 14 days.

-------------------------------------------------------------------------------------------------------

IMPORTANT NOTICE

Section 2 of the Foreshore Development Act [ Cap.90] stipulates that,

" NO PERSON SHALL UNDERTAKE OR CAUSE A PERMIT TO BE UNDERTAKEN ON THE FORESHORE OF THE COAST OF ANY ISLAND IN VANUATU WITHOUT HAVING FIRST OBTAINED THE WRITTEN CONSENT OF THE MINISTER TO SUCH DEVELOPMENT."

Yours Faithfully,

(Signed) Hon. Joe NATUMAN

Minister of Internal Affairs."

(Underlining for emphasis, ...)

2. One of the requirements under the Approval is that the claimant should have acknowledged receipt within 14 days. There is no evidence by the first claimant showing such acknowledgement.
   

100. Further the Important Notice given at the end of the Approval was made pursuant to section 2 of the Act. It clearly states that no person shall undertake any foreshore development without first having obtained the Minister's written consent.
     

The letter of application dated 3rd March 2008 contains a clear admission on the part of the first claimant that "work had already occurred on site."

Paragraph 2 of the letter States:

" the project is located on a lease Title: 12/0912/631 and in fact work has already occurred on the site"

(emphasis added).

4. If therefore the first claimant had commenced reclamation and rehabilitation works prior to 3rd March 2008 when they formally applied for a consent, they were acting unlawfully and therefore they cannot be claiming compensation or damages for their unlawful activities or actions at the time.
   
5. Further, if they had started works on development in March 2008, the condition of the approval is that they should have completed in either March or September 2010 or seek an extension. There is no evidence showing any extension sought by them.
   
6. Further, if the first claimant had been having issues with custom-owners of the land in 2008 or 2009, first there is no evidence of it. Second, why wait until 2014 to file the claims?
   
7. That brings me to the re judicata point. In paragraph 17 of Dinh Van Tu's evidence by sworn statement ( Exhibit C1) he makes mention of the case of Kwila Ltd.v. Ronald Joseph, CC 105/2010 and states that it was this case that affected the reclamation work. The deponent does not give any evidence of the exact month the work stopped or at all.
   
8. Counsel for the first claimant did not assist the Court with a copy of the case. But in any event if the first claimant had any issues against the custom-landowners and/or the Republic, it was encumbent upon them to take necessary steps then to ensure their grievances were put before the Court at the time for consideration and determination. There is no evidence of any appeals made against that decision of the Court in the proceedings.
   
9. It appears therefore that the first claimant's claims in this proceeding is an appeal in disguise and as such, it is an abuse of process, even if it is not res judicata.
   

24. For the foregoing reasons the claims by the first claimant in this proceeding fail in their entirety. Accordingly I dismiss them with costs to the defendant awarded on the standard basis as agreed or taxed.
    

Terra Holdings Limited- Lease 003

25. I turn now to consider the issue raised by both the claimant and the defendant which is:

" Whether the Minister of Internal Affairs has an implied duty or discretion to consult with the custom-owners before the granting of an application of foreshore development?".

26. The claimant submitted that section 4 of the Act should be read in light of the orbiter dictum of the Court of Appeal in the case of Terra Holdings Ltd.v. Sope, Civil Appeal Case No. 4 of 2012 at [ 50], [51], [52], and [53].
    
27. Counsel for the defendant conceded that reading section 4 of the Act by itself, no such duty exists but however, Counsel submitted that when section 4 is read together with Article 5 (1) ( j) of the Constitution and Article 73, such implication or discretion exists. The State submitted further that even if that duty exists, the Minister had complied with his implied duty anyway.
    
28. The Court accepts submissions of both the claimant and the defendant. The answer to the issue is in the affirmative. This raises the further issue of whether or not the Minister breached that implied duty?
    
29. The Court answers this further issue in the negative. The Court accepts the submissions by the State that the Minister had consulted the custom-owners prior to granting approval for development on Lease 003.
    
30. The evidence in support of this finding is contained in the sworn statement of Trinison Tari (Exhibit D1). Annexure "TT8" is the Enviroment Impact Assessment ( EIA) Report. The acknowledgements on page 8 acknowledged the presence of Mr Joshua Kalsakau as lessee of the land comprised in Lease 003 and of Pakoa Kaltonga, Executive Director of Ifira Trustees Ltd. On page 63 of the EIA Report is a list of people and authorities consulted, which includes Mr Kalsakau and Mr Kaltonga.
    

Annexure " TT9" attaches the Public Notice published in the Daily Post Newspaper by Mr Kalsakau informing the general public of a public meeting scheduled for 29th October 2011 at the Shefa Provincial Council Conference Room at 0900 hours. Annexure " TT10" shows the Attendance sheet at that meeting. The list of attendance shows Barak Sope Mautamate of Ifira at No.14 and along with others from Ifira No.9, 10, 13, 15, 16, 35, 39. The Director, Albert William ( No.3) was an attendant at that meeting as the Minister's authorised representative.

31. Section 4 of the Act states that upon receiving an application the Minister acting on the advice of the Director may grant consent, refuse consent or grant consent subject ot other conditions.
    
32. On 1st December 2011 the Minster acting on the Director's advice granted consent. This approval is annexed " TT17" in the sworn statement of Trinison Tari. The conditions imposed are contained in paragraphs 1-4. There are strict conditions. Conditions 3 required cooperative and collaborative actions by the claimant with relevant government departments listed. There is no evidence by the claimant showing the step-by step actions they took immediately after 1st December 2011 until the date they claim works were halted due to Barak Sope and others instituting Civil Case No.242 of 2011 against them. Reference is made to paragraphs 15 and 16 of the sworn statement of Dinh Van Tu ( Exhibit C1).
    
33. Further the Approval required acknowledgement by the claimant within 14 days. It states:

" Please acknowledge receipt of this decision within 14 days."

The claimant has no evidence showing such an acknowledgement.

34. Whilst parties and Counsel have not identified these additional issues, it is worth pointing these out to reveal on whose side the faults really lie. This further assists the Court in arriving at a conclusion on whether the claims of the claimant have any basis or foundation for which they can validly claim damages or compensation .
    
35. The claimant claims at paragraph 13 of their claims that they have expended in excess of VT 50 million by reason of the approval. They provide particulars as (a) acquisition of the lease, (b) land reclamation undertaken on the lease and (c) costs associated with the EIA process.
    
36. I find some problems with these pleadings namely (a) lack of dates, (b) lack of expenditure (c) reclamation were being done on the lease ( 003) before consent or approval was obtained. For (a) and (b) evidence in support by the claimant was required. There is no such evidence. For (c) it is a legal requirement or condition. The Approval dated 1st December 2011 at its very end included an important notice. It states:
    

" IMPORTANT NOTICE"

Section 2 of the Foreshore Development Act [ Cap.90] stipulated that:

"NO PERSON SHALL UNDERTAKE OR CAUSE A PERMIT TO BE UNDERTAKEN ON THE FORESHORE OF THE COAST OF ANY ISLAND IN VANUATU WITHOUT HAVING FIRST OBTAINED THE WRITTEN CONSENT OF THE MINISTER TO SUCH DEVELOPMENT"

( Underlining for emphasis).

37. If indeed reclamation was being done by the Claimant on Lease 003 without first obtaining a Consent from the Minister, such activity was illegal and the claimant cannot expect to be compensated for their illegal actions.
    
38. From the evidence presented to me, I am not satisfied that the Minster breached his implied duty or discretion. He issued his consent or approval acting on the Director's advice. The Minister acted in good faith and belief that with the presence of Barak Sope, Joshua Kalsakau and the Ifira Trustees Limited in the consultancy meeting of 29th October 2011, the custom-owners had adequately been consulted on the matter. When the Minster then exercised his discretion to grant the approval on 1st December 2011, it was a proper exercise of discretion to grant such approval with strict conditions. The onus is therefore on the claimant to show that they had fulfilled all conditions within the period of the specified. And they have no evidence to show that they have so fulfilled.
    
39. All the case authorities referred to by Mr Ngwele whilst they contain good principles of law, they do not assist the claimants in this case as the Court has found there was no breach of a statutory duty by the Minster. And the Court rejects the submissions of the claimants.
    

Conclusion

40. The claims of the second claimant also fail in their entirety and are accordingly dismissed. The defendant is entitled to their costs of and incidental to this action. The Court orders the first and second claimants to pay the defendant's costs on the standard basis as agreed or taxed.
    

DATED at Port Vila this 26th day of February 2016

BY THE COURT

OLIVER.A.SAKSAK
Judge