That the lessee pays to the lessor or into hnto his bank account for the first 40
years the amount of VT1,658,000 as yearly
rent payable by 10th
June 1995. This amount will be reducing by VT142,000 for surveyor fees.
Agreement 3
The lessor agrees with lessee that the lessee pay the survey fee, the lessor
owes to the Lands Department the amount of
VT142,000.
The amount of VT142,000 was to be deducted from the first payment of
VT1,658,000. However, if the lease was not to be
executed for other reasons,
the lessor will repay the VT142,000 back to lessee.
Statement of claim >
It was a commercial lease, for 75 years. The lease obtained for the
defendant to build a tourist resort on the lease land.
The defendant was in
breach of such agreement by not building a tourist resort.
Further, that the defendant was in s in breach of the agreement in:-
a) span
ot pa ng ainual nual rent of VT145,000;
b) tn no
yinpafor for surveyor fee;
c) & span>Fail to
pay the required premium for 5 hectares;
d) p; an that
he tried to sell the lease land to Caillard Kaddour without seeking the
plaintiff’s consent.
Defence
<
The defendant admitted paragraph 1aph 1 and 2 that the plaintiff is a ni-Vanuatu
and the defendant is an expatriate. Also
that the lease was for 75 years.
The lessee and lessor signed that lease agreement. And for the defendant to
pay rent
for the first 40 years and that the defendant will pay all the
rates, taxes and outgoing on the lease in the life of the lease.
Further,
the defendant permitted the plaintiff to enter and inspect the land. And
that the first defendant will not use
the lease land for usage for other
purposes or part of it without the written consent of the plaintiff. And as
long as
such consent cannot be unreasonably withheld.
<
1. Was
there an oral agreement between the plaintiff and defendant for the
defendant to build bungalows and tourist restaurant;
2. ;&nbsspan>Is
s
whe whether the defendant breached the lease agreement by not paying VT145,000
per annum to the
plaintiff;
man">
3. &nnbsp; span>Is
t whether the defendant, pursuant to the agreement fail to give access to the
plaintiff;
">
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1">
4. &nnbsp;; span>Is
s
whether the defendant fail to pay the required premium for the 5 hectares;
5. s
he wr the defe defendant was in breach of the lease agreement by selling the
lease land to Caillard Kaddour without obtaining
written consent of the
plaintiff?
Issue No. 1:
Was there an oral agreement between the plaintiff and the defendant for the
defendant to build bungalows and a restaurant
on the leased land.
The lease title 12/0913/022 was granted to the defendant as the Registered
Proprietor. The purpose of the lease was for
commercial nature.
In thie the defendant did not givt give any evidence to explain any other
agreement between the plaintiff and himself
a part from the lease agreement.
The basis of his argument was that, the lease agreement did not specify or
include other
agreements except the lease agreement. If this is so then only
the evidence of the plaintiff stood alone for consideration
to prove on the
balance of probability, that there was an agreement prior to obtaining the
lease for the defendant to
build bungalows and a tourist restaurant on the
lease land.
In their arrangement, and prior to any lease agreement, the defendant went
and saw the plaintiff in his house to ask him
for a piece of land. The
plaintiff inquired why the defendant wanted land. The defendant told him
that he will build
bungalows for tourist, he will connect electricity cable,
water pipe, make bitumen road and will build a restaurant, by this
improvement people will work there, he will pay for their garden food for
the tourist to eat.
Daniel Tenene also referred to the defe defendant seeing him to take the land.
Daniel informed him that it was his land,
his father gave it to him. The
purpose of getting the land was to make business on it and that was for
building bungalows
for tourists. Daniel then took him to the piece of land.
And he informed the defendant that the land was already surveyed and
it
costs VT142,000 and not paid as yet. Also George Kimbey, a lands officer
within the Lands Department gave evidence
that the plaintiff and defendant
came and saw him for assistance over the lease agreement. The lease
agreement he referred
to was a standard lease agreement form. The lease as
referred to as Rural Commercial Lease and the lease granted to the defendant
was upon the proposal made by the defendant for engineering and building of
bungalows, but that lease allows the defendant
to build a resident unit. The
copy of the application for lease for commercial lease by the defendant
stated, in Type
of Development, refer to Home/Site and
Engineering/Installation business and later Bungalows/Motel.
The three witnesses came to one point, and that was over the said lease
granted for building of bungalows for tourism.
The written proposal was
evidence of fact, in confirming the verbal agreement the defendant made with
the plaintiff and
his son, Daniel. This cannot be taken as just some form of
commercial negotiation between the parties, but that was the primary
reason
reached between them in obtaining the land, including the connection of
water, electricity, and bitumen road and
fundamental, when breached, render
the contract void and will continue to affect the lease agreement signed
between the
parties. However, those for employment opportunity for
plaintiff’s people, and for paying for plaintiff’s people foods from
their
garden were not fundamental and if breached does not render the contract
end.
I
find that there was a verbal coal contract entered to between the lessor and
lessee before entering into the lease agreement,
for the defendant to build
bungalows/restaurant, connect electricity, water, and build bitumen road and
all were fundamental.
Malcolm advances that the building of bungalows for tourist was not part of
the lease contract signed by the defendant,
and in this case instead of
Tenene Waya sign, Daniel signed.
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Firstly, the piece of land belongs to Teno Tenene Waya and he gave it to his son
Daniel Tenene, and a matter entirely
between them, and makes no difference
at all who signed. And Daniel Tenene was accorded that right by his father
and
rightfully he can sign, unless there is a dispute between them over the
piece of land.
In evidence thse was a standard lease, hoe, however, the three additional
agreements affecting the standard lease was
prepared by the defendant, and
the duty was upon him to include their verbal agreement. In not including
their verbal
agreement to build bungalows and restaurant, makes the
agreement remain on foot as fundamental, and the lease agreement can
not be
used to waived this agreement, unless it clearly expresses it so in the
lease, understood and accepted by the
plaintiff, which was not the case. The
lease agreement only referred to a commercial lease but does not refer to
any
building of the bungalows for tourists and the verbal agreement took
care of that. If the defendant was concern about the verbal
agreement to be
waived, than there was no reasons at all to draft another agreement as he
did to agreement No. 1,2 and
3 for the plaintiff’s consent. As there was
none, the signed lease agreements operate to govern the right of the parties
in achieving the purpose of the leased, including the building of bungalows
and restaurant.
Section 38 of the Lanses Act CAP 163 authorize tize the purpose of the lease
which must be specified which states:
“Eve lease shall specify–
(a) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;&
The purpose anse and use for which the land is lease; and
>
(b) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp;
Tpan>The development conditions, if there is any.
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The leasefor commercial purpose and and the kind of commercial development
that to take place was specified in the application
form, paragraph 4, under
the heading; Type of development, and those were for;
Home site, plus engineering/installation, business, later bungalows/motel
plus recreation park. By s.38 (b), the duty was imposed by law upon the
defendant to include in the lease agreement the type of development as
proposed in his application form. As the nature of the rural
commercial lease, was specified clearly under paragraph 4 of the
application. The plaintiff remembered
very well why he allowed his land to
the defendant and only him to consent first for any changes as to the
purpose of
the commercial lease in clear and understandable language
expressly provided to him. It is his land, and has all the right
to grant
his land for what development purpose he wants on his land. This is similar
to other government leases where
the purpose of the lease specifies the kind
of lease with the kind of development on the property leased. The duty was
on the defendant to honour and respect their verbal agreement.
However, it was open to the defendant to call evidence to refute the
plaintiff’s evidence on their verbal agreement, which
he elected not to give
evidence, and the evidence from the plaintiff and his witnesses, including
paragraph 4 of the
application form remain on foot as evidence of truth in
proving their verbal agreement. If this was the agreement between the
parties then let it be performed by the defendant.
Under the verbal agreement the defendant was to s to build the bungalows and a
restaurant and no one else.
Agreement No. 1 was an additional agreement tent to the lease agreement where the
plaintiff waved his right of consent
in assignment, sublease, underlet,
mortgage where his written consent was no longer required. Agreement No. 1
completely
remove the plaintiff’s right of dealing with the land in anyway
for 75 years and waived that right under paragraph 36 of the
lease
agreement. Waya Tenene signed this additional agreement on 22nd December
1994 and his signature was deleted and
Daniel Tenene, and the defendant sign
and George Kimbey as witness signed.
I
find that the whole term of contract did not not alter their verbal agreement
and for the type of development in paragraph
4 to take place. Amended
agreement No. 1 (b) that is “to set up and build moorings in adjacent
under the lease land use the water as a start and landing base for water
operated
aircraft” neither change the purpose of the contract but rather
additional. In their verbal agreement, the defendant was the person
to
develop that land in accordance with paragraph 4 and no one else. If there
was any assignment that will affect their
verbal agreement than the
plaintiff must agree to it. The important of this is because, if a new
developer comes in to
develop the land, as advertised for sale of the
property, than that new developer has a right to refuse to perform those
contractual duties, unless, that type of development was assigned to him by
the defendant to perform in maintaining their
verbal agreement. If not, than
the whole purpose of the agreement to develop in accordance with verbal
agreement to build
bungalows and restaurant, would be thrown away, and the
new developer can choose to conduct other form of development in addition
to
the amended agreement No.1.
Therefore, any assignment on development to take place in accordance with
their verbal agreement, as in paragraph 4 of
the type of development, the
plaintiff must agree to it or otherwise by agreement No.1 the defendant must
assign to the
new developer to perform the collateral agreement to build
bungalows and restaurant for tourist in maintaining their verbal
agreement.
Issue No. 2:
Is whether the defendant breaches the agreement by not paying VT45,000 per
annum.
The commercial lease agreement ment paragraph 1 allows for yearly rent and
agreement No. 2 allows for VT45,000 per annum
of which the parties by
agreement No. 2 totalling VT1,658,000. This amount was paid to Daniel Tenene
account with West
Pac Vila on the 5th May 1996. This was in
accordance with new agreement No.2. By agreement No.2, VT142,000 will be
deducted from the VT1,658,000.
However, Section 39 of the Land Lease Act
allows for review after 5 years by either party. Agreement No. 2 did not
take
away the right of the plaintiff under s.39 of the Leases Act to apply
to review the rent after 5 years of the life of the lease.
The agreement for
payment for 40 years did not alter the five years period for review.
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Issue No. 3:
Failure to give access to the plaintiff.
ection 41 (5) of the Land Land Lease Act allows lessee to enter premises. Tenene
in his evidence he said the defendant put
up a fence. And defendant told one
boy to come and tell Tenene that, the defendant did not like to see him
again, and
from there on Tenene did not go there. That boy was not called to
give evidence and his evidence is hearsay and inadmissible.
Also Daniel refers to Titoman Kalwas. Again Kalwas lwas was not called to give
evidence and such evidence is inadmissible.
I
find no evidence that the defendant prevented tted the plaintiff to enter premise
and dismissed.
p class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
Issue No. 4:>
Whether the defendant paid the required premium.
This was raised in the evidence of Daniel that that the amount or premium was not
included in the pleading, which Hilary
agreed to, apart from land rent
payment and no longer an issue, and dismiss.
Issue No. 5:
Is whether the defendant was in breach of the lease agreement by selling the
lease land to Caillard Kaddour without obtaining
the consent of the
plaintiff.
The property was advertised for sale for two diwo different prices at
AUD$630,000; and the other at AUD$850,000.
Malcolm advances that no time limitation given for buil building of bungalows. I
agree as the defendant has 75 years to
perform that in accordance with their
agreement. However, for the defendant to sell the leased property without
building
bungalows for tourists and a restaurant or motel and those other
development as prescribed in paragraph 4 of the application,
the defendant
will be in breach of their verbal agreement and he is at liberty to enforce
it against the defendant.
I
find that to advertised the leased property wrty without performing his
obligations under their verbal agreement was
the beginning of the breach and
gave right to the plaintiff to protect the substance of the contract for the
defendant
to honour and to performed.
6. Rectification
p class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
The plaf applies for rectificationation of the lease.
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Rectification under Section 100 of the Leas Leases Act states:-
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Fraud under Section 100 is some something more then mere disregard of the right
of other person but it is more then a
right that goes further to the nature
of personal dishonesty.
re is no evidence of dishonishonesty by the defendant in obtaining the land.
Normal agreement by the plaintiff for the defendant
to lease part of his
land. Agreement reached. Application by the defendant made. Amended
agreement entered into by the
parties. Lease agreement signed. Rental paid.
Development took place. What remains was for the defendant to perform in
accordance with their agreement.
I
find no dishonest act by the defendant in t in obtaining the lease.
Agreement No. 2 is for the deduction of VT142,000 fr00 from the total amount of
rent for the first 40 years. This agreement
represents the amount of
VT1,658,000 as land rent after deduction of VT142,000. As Daniel refer to
the rent for the first
40 years was VT1,800,000. I see nothing wrong with
such deduction and was proper in accordance with agreement No. 2.
8.
Sets off and/or Counterclaim
1">
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Counterclaim normally made by a defendantndant, as a right to do so, who alleges
that he has a claim, or is entitle to
any relief or remedy against a
plaintiff, instead of bringing a separate action. In the matter, both the
plaintiff in
the action and the defendant as plaintiff in the
counterclaim/claim separately, and to prove their respective claims, and if
possible two separate judgments can be given or together in the same
judgment.
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In this action, the defendant as plaintiff tiff in the set off counterclaim fails
to give evidence, both for the case
against him and the counter/claim. Under
Order 38 of the Civil Procedure Rules the defendant as the plaintiff in the
counter/claim is required to give evidence to prove his claim, failing to,
his counter/claim is dismiss for wants of prosecution.
Therefore his
statement of claim in the counterclaim is struck out.
I
therefore make the following findings:-
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1">
1. &nnbsp;; span>There here
was a verbal agreement between the plaintiff and the defendant for the
defendant to buungalor tourists
and a restaurant and fundamental;
2. &nbssp;&nspan>The
he
defendant can not sell the property until he has build bungalows for
tourists and a restaurant;
3. & span>Claims
for cancellation of lease title No. 12/0912/022 is dismissed;
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1">
4. & p; span>Claim laim
for rectification is dismissed;
man">
5. &nnbsp; span>Claim
f amr damages by the plaintiff is dismissed;
6.  pan>s Defendant’s nt’s counterclaim is dismissed;
7. osts o
the lainplaintiff to be taxed if not agreed. Taxation adjourned to 1st
June 2001.
clasoBody aligft" s"text-align: left; margin-top: 1; margin-bottom: 1"m: 1">
>
Dated at Port Vila, this 9th day of April 2001.
an lang="EN-GB" style="font-size: 12.0pt; font-family: Times New Roman">
R. MARUM MBE
JUDGE
