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

Civil Case No.124 of 2006

BETWEEN:

MAURICE LOULERGUE
First Claimant

AND:

ALICK MISSIWARAN
Second Claimant

AND:

REMI USUA KUANUAN
First Defendant

AND:

NASSE KURANGKIRI
Second Defendant

AND:

MINISTER OF LANDS
Third Defendant

AND:

LANDS DEPARTMENT
Fourth Defendant

Coram: Justice H. Bulu

Counsels: Mrs. MNF Patterson for the Applicants
Mr. Edward Nalyal for the First and Second Defendants
Mr. Tom Joe Botleng for the Third and Fourth Defendants

Date of Hearing: 21 July 2006
Date of Decision: 17 August 2006

DECISION ON URGENT APPLICATION FILED ON 14 JULY 2006 TO RESTRAIN THE FIRST AND Second DEFENDANTS FROM ENFORCING THE NOTICE TO QUIT
DATED 20 JUNE 2006

Introduction 

1.	On 14 July 2006 the Claimants filed a Supreme Court Claim in the Court Registry in Port Vila. The First Claimant claims to be the lessee of the land at Port Resolution Tanna, known as Turtle Bay (the land).

2.	The Second Claimant claimed he is the custom owner pursuant to a Certificate of Registered Negotiator dated 14 August 2001 and 25 September 2005 that was issued by the Ministry of Lands. 

3.	The Claimants claim that in 1999 the First Claimant and the Second Claimant made an oral agreement concerning the land, i.e., for the First Claimant to lease the land from the Second Claimants. The First Claimant to build a resort on the land and to pay a premium of VT5,000,000. 

4.	It was agreed between the First and Second Claimants that the premium would be paid by instalments at the rate of VT50,000 per month until it is paid up. 

5.	A Certificate of Registered Negotiator was granted to the First Claimant on 29 July 2001 to negotiate a lease of the land from the custom owners. 

6.	However, on 27 September 2005 a "renewal of Negotiator Certificate One" was issued to the First Defendant. 

7.	A lease was issued by the Third and Fourth Defendants on 24 October 2005 for a lease title No. 14/2522/001 over the land, First Defendant being the lessor and the Second Defendant the lessee. 

8.	Pursuant to the lease the Defendants issued a notice to quit to the First Claimant. However, the First Claimant did not vacate the property. 

9.	Having failed to quit the property pursuant to that Notice to Quit, the Defendants on 20 June 2006 issued a further Notice to Quit the property giving the Claimant up to 20 July 2006 on which the First Claimant must move out of the property. 

Application 

10.	As a consequence of the Notice to Quit, the First and Second Claimants on 14 July 2006 filed their urgent application seeking certain interim orders to restrain the First and the Second Defendants from enforcing the Notice to Quit dated 20 June 2006 giving the First Claimant to leave the property title 14/02511/1011 and to remove all their belongings by 2.00 p.m. on 20 July 2006 until the claim in this proceedings is finally determined. 

11.	The Urgent Application of 14 July 2006 is set out fully below:- 

"The First and Second Claimants apply for:- 

1.	An order to restrain the First and Second Defendants from enforcing the Notice to Quit dated 20 June 2006 addressed to the First Claimant in occupation of the land under lease title 14/02511/1011 to leave the property and remove all the belongings of the First Claimant by 2 p.m. on 20 July 2006 until the Claim under these proceedings have been heard by this Court and decided upon. 

2.	For the restraining order to include all actions of the First and/or the Second Defendants with the Courts of Vila and Tanna and the Police of Vila and Tanna. 

3.	Costs 

4.	Any other order as the Court may deem just and fit. 

On the following grounds:- 

1.	The leasehold title 14/2522/001 (hereinafter called "the Lease") in which the First Defendant is the Lessor and the Second Defendant is the Lessee was obtained by mistake or fraud. 

2.	The Second Claimant is the declared custom-owners of the land under the lease in the Certificate of Registered Negotiator dated 14 August 2001 and 25 September 2005 issued by the Ministry of Lands. 

3.	The First Claimant claims to be the lessee of the land situated in Port Resolution, Tanna, known as Relais de la Baie de la Tortue (hereinafter called "the land") under lease title No. 14/2522/001 ("the lease"), where the First Claimant has build a resort. 

4.	In 1999, the First Claimant contracted orally with the Second Claimant to pay a premium for the land of VT5,000,000, to build a resort on the land, and to pay the premium by monthly instalments of VT50,000, and after the payment of the premium and once the lease was issued to pay a yearly rental of VT60,000 for the first year, VT80,000 during the second year and VT100,000 per year thereafter. At 31 December 2005, the First Claimant had paid a total VT2,500,000 out of the agreed VT5,000,000. 

5.	The First Claimant cannot physically remove his personal belonging from the Land as he has build 6 bungalows and a restaurant on the land. 

6.	If the First Claimant is forced to quit the Land, he will be very seriously disadvantaged and will lose all his investment since 1999, his regular income from the resort and the Second Claimant will suffer damages from the lack of monthly instalments from the original oral agreement between the First and the Second Claimant in 1999. 

7.	The First Claimant will also lose his place of habitation and his right to be in Vanuatu under the Vanuatu Investment Promotion Authority which would make an illegal resident and will prevent him from staying in Vanuatu to continue with the Claim under these proceedings which would be unfair and unjust. 

8.	The First Defendant committed himself to guarantee the use of the land and security to the First Claimant in a "protocole d’accord" dated 15 June 2006 which was an agreement with the First Defendant whereby the First Claimant recognized the First Defendant as Custom Owner and the First Defendant and accepted 2 payments of VT50,000 from the First Claimants for the acquisition of the lease on the 13 April 2006 and 16 May 2006. 

9.	The application will rely on the evidence presented in the sworn statement from Mr. Maurice Loulergue and Mr. Alick Massiwaran including:- 

(a)	The map of the area showing the Land and the rights of the different Yakamas; 

(b)	Letter of Paramount Chief Yaukkalpi from Tanna dated 16 March 2006 confirming the rights of the Second Defendant over the Land; 

(c)	Approval of Certificate of Investment by the Vanuatu Foreign Investment Board dated 28 October 2002; 

(d)	Kustom Ona form in favour of the Second Claimants dated 29 July 2001; 

(e)	Certificate of Registered Negotiator dated 14 August 2001 in favour of Relais de la Baie de la Tortue (First Claimant) and showing Second Defendant as Custom Owner; 

(f)	Copy of "Bail Commercial" – draft; with the First and Second Defendants as proposed lessors dated 11 April 2005; 

(g)	Lease Copy; 

(h)	Protocole D’accord dated 15 March 2006; 

(i)	And miscellaneous other proposals." 

12.	Edward Nalyal on behalf of the Defendants opposed the reliefs being sought through the Urgent Application. He submitted that the Defendants are custom owners of the land the subject of this proceeding. 

13.	Mr. Nalyal continued that the Defendants were declared custom owners of the land by Tanna Island Court on 3 September 1984. That is the land at Turtle Bay that has been registered and given lease title No. 14/2522/001. 

14.	On 7 November 2005 the lease was entered into between Remi Usua Kunuan as lessor and Nasse Kurangkiri as the lessee. 

15.	Mr. Nalyal went on to submit that the third paragraph on the first page of the Island Court decision of 3rd September 1984 describes the land owned by the Defendants. That paragraph is part of evidence given by Nasse Kurangkiri in which he testified that – 

"The land which begins at Sulfur Bay has two stones on it, called "Nale" and "Narak" and it runs up to Ibnesu, then to Inkonauore, then to Namariu which is at Wota, then it goes over the two hills, Sobai and Mauna, then over another hill, Iakweaki. That is our boundary and our nakamal is Iehumanen. There is a hill, Lopwetanem, the Ienokwetamakum, then Tanarmersi, then Iaku, the Napunapsa. The ancient chiefs would have been my enemies as I am a Manuor and they would be Shipi. In the olden days, I wouldn’t have any rights to Ianamakel. If I do go, I would be killed. We had never heard of Nalpaemene, Kamichi and Nasipmine before, but it was only during the political unrest that their names were brought up."

16.	Mr. Nalyal produced a map in Court to support his submission. However, he could not confirm to the Court that the map was part of the Decision of the Island Court.

17.	Mr. Nalyal went on that since the Supreme Court decision the Defendants have owned the land at Yenaki up to the boundary of the volcano and down to the sea including Turtle Bay.

18.	Since November 2005 the Defendants are owners of the land in question and they have a lease over that land. They have had the lease since November 2005 and have been trying to enter into a lease with the First Claimant since. The Claimant has refused to sign a lease with them. However, he continues to remain on the land. The Defendants have chosen to exercise their right as owners of the land to issue Notice to Quit to the First Claimant. 

Discussions

19.	The Tanna Island Court in its decision dated 3 September 1984 held "The Court concludes that in considering the custom story that has been related before it, the right goes to the four brothers, Nase Kurakiri, Sam Kahu, Jack Naven and Philemon. The Court declares that they are the real customary owners of the land on which the volcano is situated." 

20.	Mr. Nalyal produced to the Court one version of the Supreme Court Decision and Mrs. Patterson produced a different version of the same decision. Mrs. Patterson’s version had more pages. However, both versions do not carry the signature of the Judge nor the official stamp of the Court. 

21.	The First Claimant has been on the land since about 1999 when he made contacts with the Second Claimant about his business proposals. 

22.	On 14 August 2001 the First Claimant was granted a negotiator certificate to negotiate a lease with representatives of custom owners which included, Missiwaran. 

23.	However, it is the Defendants who obtained a lease over the land in 2005.

24.	The Tanna Island Court in its decision dated 3 September 1984 declared who are the "real customary owners of the land on which the volcano is situated."

25.	There is a serious question, in my view, as to whether the custom ownership of the land has been determined by a Court.

26.	There is a serious question, in my view, as to whether the Tanna Island Court in its decision dated 3rd September 1984 did declare that the land the subject of this dispute is owned by the Defendants.

Conclusion

27.	I have considered the evidence before the Court and I am satisfied that the Applicant has a serious question to be tried relating to the granting of the lease and also to the ownership of the land in question. Further that the Applicant has a going business on the land and he would be seriously disadvantaged if the order is not made.

28.	The Court makes the following orders:- 

(a)	The First and Second Defendants are restrained from enforcing the Notice to Quit dated 20 June 2006 served on the First Claimant to leave the land until the determination of the claim in this proceeding. 

(b)	Costs in favour of the Applicant and to be taxed if not agreed. 

DATED at Port Vila, this 17th day of August 2006.

H. BULU
Judge.