IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 08 of 2006

BETWEEN:

HAROLD KENNETH
Appellant

AND:

THE SECRETARY GENERAL OF MALAMPA PROVINCE
First Respondent

AND:

THE HON. MINISTER OF LANDS
Second Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu

Counsels: Mr. Saling Stephens for the Appellant
Mr. Nigel Morrison for the First Respondent
Mr. Dudley Aru, Acting Attorney General for the Second Respondent

Date of Hearing: 23 May 2006
Date of Decision: 1 June 2006

JUDGMENT

Introduction

1.	This is an appeal against the decision of Justice Saksak in the Supreme Court at Luganville on 16 December 2005.

2.	The appellant’s claim was filed in September 2004 and sought damages for trespass on alleged custom owned land at Lakatoro, Malekula, and secondly for compensation for adjoining land that had vested in the State at Independence as Public Land under Part VI of the Land Reform Act [CAP.123]. The appellant had been declared custom owner together with two other claimants in Land Appeal Case No. 45 of 1984 on 5th July 1988.

3.	The main issues before the Supreme Court were first, whether construction of the new Market House and the MDC premises was taking place on the State Land which had vested in the State at Independence, or on custom land of which the appellant was one of the declared owners and second, whether the appellant had approached the issue of compensation for the loss of his land to the State through the proper process.

4.	In its decision of 16 December 2004 the Supreme Court held:-

(a)	that the land in question (land on the eastern part of the State land at Lakatoro, Malekula) is not custom owned land. His Lordship in his decision said the "Court walked that area of state land with the parties and the Director of Land Surveys. The Court saw the survey pegs and was satisfied that the Market House and the MDC premises and lease are situated within and are part of State land.";

(b)	that the claim for compensation must fail. The entitlement of the appellant to compensation is not an issue but the proceeding before the Supreme Court was not the proper process to seek payment of compensation by the Minister of Lands.

5.	It is against that decision of 16 December 2005 that the appellant has appealed. Altogether, the appellant advanced 14 grounds in support of his appeal. The grounds can be condensed into the following:-

(a)	The trial Judge erred in finding that the land in question on which the MDC store and the Market house are situated was State land; and

(b)	The trial Judge erred in holding that the entitlement to compensation was not an issue in the Supreme Court proceeding which was a claim for trespass, eviction and compensation.

Compensation

6.	This appeal raises a very important issue of compensation to owners of customary land that had been acquired by the Condominium Government and then by virtue of legislation (Land Reform Act) became public land the ownership of which was vested in the State at Independence Day in 1980.

7.	In the decision below the Court held that " the proper course would have been to bring a claim for judicial review seeking mandatory orders pressing the Government for payment" of compensation pursuant to the Supreme Court decision in Land Appeal Case No. 45 of 1984 which declared the appellant and two other claimants as custom owners of the public land at Lakatoro.

8.	We do not agree with the conclusions reached by the primary judge on the compensation issue. The starting point has to be the relevant law that prescribes the process to be followed to enable the State to compensate those who have lost their land to the State.

9.	We are grateful to counsel for information on the relevant statutes including the Constitution. Clearly, the starting point is the Constitution. Articles 73, 74, 76, 77 and 80 are set out fully below:-

"LAND BELONGS TO CUSTOM OWNERS

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

BASIS OF OWNERSHIP AND USE

74. 	The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu.

NATIONAL LAND LAW

76. 	Parliament, after consultation with the National Council of Chiefs, shall provide for the implementation of Articles 73, 74 and 75 in a national land law and may make different provision for different categories of land, one of which shall be urban land.

COMPENSATION

77. 	Parliament shall prescribe such criteria for the assessment of compensation and the manner of its payment as it deems appropriate to persons whose interests are adversely affected by legislation under this Chapter.

GOVERNMENT MAY OWN LAND

80.	Notwithstanding Articles 73 and 74 the Government may own land acquired by it in the public interest."

10.	Article 77 is the relevant provision that provides for Parliament to "prescribe such criteria for the assessment of compensation and the manner of its payment … to persons whose interests are adversely affected by legislation …" Pursuant to this article Parliament enacted the Land Reform Act [CAP. 123]. Section 9 (1) declared that "On the Day of Independence all State land shall vest in the Government and be public land …" Section 1 of that Act defines "State land" to be "all land in Vanuatu which on the 1st day of January 1980 was owned in freehold or perpetual ownership by the British Government, the French Government, the Condominium or a Municipality."

11.	Part VI A of the Land Reform Act as inserted by the amendments contained in the Land Reform (Amendment) Act No. 35 of 2000 sets out further provisions concerning the criteria for the determination of compensation. This part requires the Government through the Government Valuer to determine the amount of compensation having due regard to the market value and any other matters it considers relevant. 

12.	The proper process in pursuing compensation for land acquired or declared to be public land as in this case is pursuant to the Land Reform Act. The Supreme Court Decision of 5th July 1988 in Land Appeal Case No. 25 of 1984 identified who are the custom owners of the public land at Lakatoro, on Malekula. The Minister of Lands admitted in Court that the Government has commenced the process to value the land at Lakatoro but was prevented from completing the valuation by this appeal. 

13.	The most sensible thing to do now is to get the process going again to its completion. At the end of the process the appellant and the other custom owners and the Government will be in a position to be able to agree an amount of proper compensation for the custom owners. If an agreement cannot be reached then, of course, there is recourse to the Courts for a determination as to whether the Government valuer has correctly valued the land. This point in time has not yet arrived, and the claim for compensation in the present proceedings is premature. 

14.	The appeal concerning the compensation claim must therefore be dismissed.

Is the land in question public land or custom owned land? 

15.	To fully appreciate the matter it is important to start at the very beginning. We commend Mr. Bani of counsel for the detailed analysis in his written submission of the documents which evidence the historical claim of title to the subject land.

16.	The Appellant has maintained that the land in question where the MDC and the Market House is situated is not within State land. 

17.	In the judgment below his Lordship Saksak J stated that the "Court, including counsel and the parties … walked the boundary of the State land…." The Court saw the survey pegs and was satisfied that the Market house and MDC premises are within the State land.

18.	The affidavit evidence of Jean Marc Pierre for the Minister of Lands was not contested and this relates to the pre-Independence Title. Mr. Pierre stated in paragraphs 3, 4 and 5 as follows:- 

"3.	The Office holds a pre-Independence land file on registration or immatriculation No. 1993 ("title No. 1993"). The file contains survey plan No. 402 showing the boundary and area of the land the subject of title No. 1993. The net area of the land is 34 hectares 35 acres and 70 centiacres. The plan was approved by the Chef du Service Topographique on 2 December 1969. On the original of plan No. 402, the boundary of the land subject to title No. 1993 is coloured green and the sea coloured blue. Marked " JMP1" and attached is a true copy of plan No. 402 on which I have also coloured the boundary green and the sea blue. 

4. 	The pre-Independence land file on title No. 1993 also contains a New Hebrides Registry of Land Titles form No. 2 entitled " Land Title" for title No. 1993. This document is in both French, on its left hand side, and English, on its right hand side. Marked "JMP2" and attached is a true copy of the " Land Title" document. 

5.	In English, the " Land Title" document, attachment "JMP2" provides a "Description of the property" which identifies the titles that surround title No. 1993 and then sets out who owns the title to the property. It sets out that:- 

The owner registered by virtue of the Joint Court judgment of 2 December 1969, of which a copy precedes, is NEW HEBRIDES CONDOMINIUM. 

Also registered were benefits in favour of Société Française des Nouvelles-Hébrides ("SFNH"). The file does not contain a copy of the Joint Court judgment."

19.	The affidavit evidence of Paul Gambeta for the Minister of Lands again is not contested. He stated at paragraphs 2 and 3 as follows:-

"2.	The Department has within its records the plan of the public land at Lakatoro, Malekula. It is plan No. 402 which is of pre-Independence title No. 1993. A true copy of this plan is marked "JMP1" and attached to the sworn statement of Jean-Marc Pierre filed 21 July 2005.

3.	The "points" that the surveyor has surveyed are all drawn onto plan No. 402 around the boundary of title No. 1993. They show that this is the boundary of the land subject to that title and are correspondingly marked physically on the land by the location of concrete survey pegs at the coordinates or points noted on the plan. The land the subject of title No. 1993 is in the rectangular shape separated from a further piece north of the road running from Norsup through Lakatoro to Litzlitz. All of this can be seen on the attachment marked "JMP1". The total area of the land subject to title No. 1993 is 34 hectares 35 acres and 70 centiacres."

20.	In its judgment No. 988 of 2 December 1969 the Joint Court of the New Hebrides stated:-

"The ownership of Eugène Gabriel Lamoureux of the land Tennemiel situated at Malekula was established by Judgment No. 693 of this Court delivered on the 25 April, 1962 when dealing with the application for registration No. 363 Northern Islands, of Société Française des Nouvelle Hébrides. 

The Administration of the Condominium of the New Hebrides had applied to be substituted to Mr. Lamoureux and in support of its application has filed a deed of sale dated 28th March, 1964 whereby it acquired all the land Tennemiel. The original applicant does not contest this application, which is subject to the change of name of the property.

The Judgment No. 693 also directed the Chief Surveyor to make the surveys necessary to enable registration ordered. In fulfilment of that direction the Chief Surveyor lodged in the Registry a plan, No. 402, and a description of boundaries of the property now under the name of Teneliel – Locatoro for confirmation.

The Court:

confirms the said plan and description of boundaries and 

ON THESE GROUNDS

and those given in Judgment No. 693 excluding, however, the public roads shown on the said plan:

ORDERS THE REGISTRATION OF THE ADMINISTRATION OF THE CONDOMINIUM OF THE NEW HEBRIDES as owners of the parcel of land known as Teneliel – Locatoro situated in the region of Locatoro on the Island of Malekula of an area of thirty four hectares thirty five ares seventy centiares, such as the said parcel of land is shown on the said plan No. 402 and described in the said description of boundaries annexed to this judgment of which they form an integral part."

21.	The plan No. 402 attached to the Joint Court judgment covers the area of the subject land in this Appeal. The Joint Court decision vesting the land in the State has not been varied to date.

22.	We are satisfied that the evidence clearly establishes that the land being claimed by the appellant as custom land is actually public land. We see no reason to disturb the decision of the Court below.

23.	The Appeal concerning the claim for damages for trespass must also be dismissed.

24.	The formal orders of the Court are:-

1.	Appeal dismissed.

2.	The Appellant to pay the cost of the First Respondent and the Second Respondent.

DATED at Port Vila, this 1st day of June 2006.

Hon. Vincent Lunabek, CJ
Hon. John W. von Doussa J
Hon. Daniel Fatiaki, J
Hon. Patrick I. Treston, J
Hon. Hamlison Bulu J