Home | Databases | WorldLII | Search | Feedback Vanuatu Law Reports

Constitution, In re; application by Ganke and Brinds Ltd [1983] VULawRp 4; [1980-1994] Van LR 53 (26 March 1983)

[1980-1994] Van LR 53

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Case No. 169 of 1983

IN THE MATTER OF:

THE CONSTITUTION OF THE REPUBLIC OF VANUATU

AND:

AN APPLICATION BY BORIS ANDREW GANKE
AND BY BRINDS LIMITED

Coram: The Honourable Mr Justice F.G. Cooke
The Honourable Mr Justice J. R. Jones
The Honourable Mr Justice L. Cazendres
The Honourable Mr W Kattan, on the request of the Court.

Mr P. Coombe, Counsel for the Applicants.
Miss D. Toulet, Interpreter.
Miss J.R. Walsh, Chief Registrar

JUDGMENT

[CONSTITUTIONAL LAW - REGISTRATION OF LAND - PRACTICE AND PROCEDURE]

In this application Mr Coombe is seeking a declaration that the provisions of the Constitution have been infringed in relation to the applicants or either of them on the grounds set out in the Motion.

The first point we would like to clarify is that the proper procedure of bringing a matter of this nature before the Court is by way of petition as set out in section 218 of the Criminal Procedure Code. We do admit it is an odd place to find such but the fact remains it is there and the procedure has to be followed.

Mr Coombe has commenced these proceedings before us relying upon the specific wording of Article 51(1) of the Constitution which states:-

51(1) "Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress."

Mr Coombe then states the facts which are contained in paragraph 3(c) of the Motion which are as follows:-

(c) "On the 30th day of September 1982 the Honourable the Minister of Lands and Natural Resources acting through the Director of the Department of Rural Lands caused a notice to issue to Brinds Limited that an application for a certificate of registered negotiator made by the said Boris Andrew Ganke and the said Brinds Limited had been refused and that consequently Brinds Limited would not be registered as alienator of the said Land pursuant to the Alienated Land Act 1982."

He then states that the applicants or either of them are thereby person(s) whose interests are adversely affected by legislation allegedly made under Chapter 12 of the Constitution (relating to land).

He then quotes Articles 75 of the Constitution which states:-

"Article 75: 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" i.e. Chapter 12.

Mr Coombe then mentioned that Boris Ganke took a conveyance of the land in question on the 11th day of September 1979 for AUD$20,000 and that the conveyance was registered in the registry of land titles provided for in the Anglo-French Protocol of 1914 on the 18th September 1979.

Mr Coombe then states that the apparent result of the notice given by the said Minister and referred to in subparagraph (c) of paragraph 1, would, if constitutional which he specifically denies, be tantamount to "expropriation" of the said land without reasonable and prompt compensation or at all.

We note that under Article 75 Parliament is given the power to prescribe such criteria for assessment of compensation and the manner of its payment as it seems appropriate to persons who are affected by legislation under Chapter 12. We do not know whether any such criteria has been prescribed but we are of the opinion that if such has not been prescribed Mr Coombe can not contend such will never be prescribed and that his clients will suffer. We note from the correspondence produced before us that the Minister has not reached a final decision.

Annexure "J" refers to the application and annexure "L" refers to the refusal for the reasons set out but at the end of that refusal an opportunity has been afforded to the applicant to produce evidence in writing to show cause why the Minister should change his decision.

Annexure "M" is the reply. We have no evidence before us to the effect that the Minister has altered his decision or indeed considered the letter annexure "M".

Until the finality of this matter by the Minister, we consider this letter should not have been brought before us.

Mr Coombe then submitted that because the National Council of Chiefs were not consulted in respect of the Land Reform Regulation and the Alienated Land Act No. 12/62, such legislation is invalid.

We are of the opinion that because the Land Reform Regulation was introduced by the Resident Commissioners by resolution 29 of the 25th July 1980 and enacted by Joint Regulation 31 of the 30th July 1980, such legislation is not affected by Article 74 of the Constitution.

We are also of the opinion that the contents of Articles 71 to 73 have no relevance to the matters contained in the Alienated Land Act and therefore no consulting was necessary in respect of that Act.

We therefore do not accept Mr Coombe's submissions that the legislation mentioned is invalid.

Mr Coombe did also refer us to Article 5(1)(J) but again as we are of the opinion that as there is no finality to this matter we are unable to say whether there has been any unjust deprivation of property.

Accordingly, we dismiss the application as we do not consider any infringement of the Constitution has taken place.

Dated at Vila this 26th day of March 1983.

FREDERICK G COOKE
CHIEF JUSTICE

L. CAZENDRES
COURT OF APPEAL JUDGE

J.R. JONES
COURT OF APPEAL JUDGE