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Assanouma v Nangard [2013] VUSC 161; Civil Case 38 of 2011 (27 September 2013)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No. 38 of 2011

BETWEEN:

ROSE MARIE ASSANOUMA
Claimant

AND:

GRATIENNE NANGARD
First Defendant

AND:

THE DIRECTOR OF LAND RECORDS OFFICE
Second Defendant

Coram: Justice D. V. Fatiaki

Counsels: Ms. J. Warren for the claimant
Mr. S. Joel for the First Defendant
Mr. J. Ngwele for the Second Defendant

Date of Decision: 27 September 2013

JUDGMENT

1. This case was commenced on 14 March 2011 with the filing of a claim seeking the revocation of a will, damages and costs. The claimant and first defendant are sisters and daughters of the late Paulette Galibert who died on 24 October 2002 leaving a will and a substantial estate of which the first defendant is the executor and trustee.
   
2. Early in the proceedings with the agreement of claimant's counsel, the second defendant was removed following a formal application and by order of the Court on 24 June 2011. The second defendant thereafter took no further part in the proceedings.
   
3. In order to better understand this claim it is necessary to refer briefly to the history of litigation that occurred between the sisters after Paulette's death. The first, was in Probate Case No. 22 of 2007 between the first defendant as applicant for the grant of probate of her late mother's will in which the claimant was the unsuccessful respondent opposing the grant to her sister.
   
4. That decision was then unsuccessfully appealed by the claimant to the Court of Appeal in July 2010 in Assanouma v. Nangard [2010] VUCA 23. In its judgment the Court of Appeal set out relevant Background Facts as follows concerning the real estate assets of Paulette's estate:
   

"3. Paulette's will provided:-

a) the property described as Lot 6 title 451, at Anamburu Port Vila No. 2123 was bequeathed to Gratienne and Ferreol in equal shares.

b) the property described as Lot 7 title 451 at Anamburu Port Vila No. 2123 was bequeathed to the other four children in equal shares.

c) the remainder of her estate was divided equally between her six children.

4. Those two pieces of land (identified above in (a) and (b)) were, after Vanuatu gained independence, re-registered in one title, 11/OG23/029. Subsequently this title was surrendered and two lots created as leases 11/OG23/056 and 11/OG23/057. These leasehold titles followed the same boundaries as the original lots 6 and 7. The parties agreed that leasehold 056 is that parcel of land referred to in the will as bequeathed to Gratienne and Ferreol. Leasehold 057 is that parcel of land referred to in the will as bequeathed to the remaining four children. However, in October 2001 Paulette transferred ownership of the 057 lease from herself to Rose Marie. After signing the will Paulette acquired an Epi agricultural lease title No. 10/1133/001.

5. During her lifetime Paulette gave a power of attorney (dated 30th October 2000) in favour of Rose Marie with respect to the agricultural lease (001) and power of attorney (dated June 1999) in favour of Rose Marie in relation to the original lease 029. On 20th February 2009, purporting to act with the authority of the power of attorney given by Paulette, Rose Marie transferred the agricultural lease (001) into her own name.

6. After Paulette died in 2002 it seems that the assets of her estate, primarily the commercial and agricultural leases, were administered by Rose Marie and Gratienne. In 2006 what was described in the evidence before the Chief Justice as a "certified" copy of Paulette's will was found. The original of the will at that stage had not been found. It was produced in the evidence at the hearing of these proceedings before the Supreme Court.

7. After discovering the certified copy of the will Gratienne consulted her sisters about what should done with respect to their mother's estate. Eventually however Rose Marie gave notice that she intended to apply for letters of administration with respect to her mother's estate. Shortly afterwards Gratienne applied for probate and gave notice she opposed Rose Marie's application. Rose Marie then sought an order that she, along with Gratienne, should be appointed joint administrators of their mother's estate. This application was also opposed by Gratienne.

8. Finally in October 2008 Gratienne, acting as executor in Paulette's estate, issued proceedings against Rose Marie alleging Rose Marie's transfer of agricultural lease 001 to herself was unlawful. Gratienne said that the agricultural lease was properly an estate asset. Gratienne claimed that Rose Marie's authority for the purported transfer of the land from her mother to herself was based on the erroneous claim that the power of attorney subsisted beyond Paulette's death." (see: Civil Case No. 144 of 2009)

5. The Court of Appeal then summarises the basis of the claimant's challenge to Paulette's will in the following terms:
   

"10. The essence of the Appellant's case is that the actions of the deceased during her lifetime amounted to a revocation of her will. The particular actions said to justify such a conclusion are; giving two powers of attorney to Rose Marie during Paulette's lifetime and transferring the lease No. 057 to Rose Marie. Further the Appellant says the will is unclear as to what property was the subject matter of the specific bequests."

and in rejecting the claimant's challenge on the basis of Paulette's subsequent grant of two (2) Powers of Attorney to the claimant, the Court said:

"13. In any event there was nothing inconsistent with her will in Paulette giving Rose Marie power of attorney to act on her behalf during her lifetime with respect to managing her properties. As to the transfer of lease 057 to Rose Marie this transfer, although in conflict with a provision in the will, does not affect the efficacy of the will. The transfer of leasehold 057 to Rose Marie during Paulette's lifetime simply means that the particular bequest with respect to that land fails."
(my underlining)

6. Finally, in rejecting the claimant's appeal against the grant of probate of Paulette's will to the first defendant and against the refusal of the Supreme Court to appoint the claimant as a joint administrator of Paulette's estate, the Court of Appeal said:
   

"17. The appointment of Gratienne as executor was Paulette's wish, expressed in her will. The Chief Justice understandably concluded there was no reason not to give effect to Paulette's wishes. We therefore reject this ground of appeal.

18. ... in any event it would have been wholly inappropriate to appoint Rose Marie as sole or joint administrator in this estate. The 2009 proceedings by Gratienne as executor challenged Rose Marie's transfer of agricultural lease 001 to herself. Gratienne's claim is that the power of attorney in favour of Gratienne expired when Paulette died and could not be lawful authority to transfer the land after Paulette's death.

19. If the Court had appointed Rose Marie as administrator of Paulette's estate then Rose Marie would have been faced, as administrator, with suing herself to get the return of the agricultural lease to the estate. This was clearly inappropriate."
(my underlining)

7. Plainly, the validity of Paulette's will and the grant of probate to the first defendant to administer Paulette's estate are "res judicata". These matters have been finally determined by the Court in favour of the first defendant and is binding on the claimant. They cannot be re-agitated between the parties. In this regard I gratefully adopt the definition of the term in Strouds Judicial Dictionary of Words and Phrases which states:
   

"res judicata' is used to include two separate states of things. One is where a judgment has been pronounced between parties and findings of fact are involved as a basis for that judgment. All the parties affected by the judgment are then precluded from disputing those facts, as facts, in any subsequent litigation between them ..."
(my underlining)

or more relevantly, in the words of the Court of Appeal in Apia v. Magrir [2006] VUCA 10:

"That is a principle which applies to final decisions on issues raised and determined after a trial (or on an appeal therefrom)".

8. Accordingly the present claim which seeks the revocation of Paulette's will constitutes an "abuse of process" and must be and is HEREBY dismissed with costs to the first defendant.
   
9. The foregoing disposes of the substantive claim and the first defendant's application to strike it out, but, it is necessary still, to consider the first defendant's counterclaim for which she seeks summary judgment.
   
10. The counterclaim pleads trespass, loss and damages arising from the claimant's unlawful possession and continuing occupation of Lease Title No. 11/OG23/056 which was lawfully vested in the first defendant as trustee and administratrix of the Estate of their late mother Paulette Galibert and, of which, she and her brother Ferreol are joint beneficiaries under a specific bequest in their late mother's will.
    
11. Furthermore the claimant was given a Notice to Quit on 4 May 2010 but, she has ignored the Notice and continues to remain in unlawful occupation of the land. The counterclaim also avers that the claimant has materially altered the existing house and topography of the land and she uses the altered land as a parking area and accessway to her kava business being conducted on an adjoining land Lease Title No. 11/OG23/057 which belongs to the claimant.
    
12. Accordingly, the first defendant seeks the following orders (in her amended counterclaim):
    

"(a) An order for the claimant servants and agents to vacate land Title No. 11/OG23/056'

(b) An order for the claimant to pay damages to be assessed;

(c) An order for damages related to the removal of the housegirl's quarters valued at VT100,000;

(d) Interest at 10%;

(e) An order for costs on an indemnity basis;

(f) Any other order the Court deems proper."

13. In the claimant's amended defence she denies trespassing on the land or unlawfully occupying it in reliance on an (undisclosed) Power of Attorney given to her and which she claims "is still in effect after the donor has died, following section 82 (4) and (5) and (6) of the Land Leases Act". Secondly, the claimant pleads that she paid and expended funds at the request of Paulette Galibert, the former registered proprietor of the land and donor of the Power of Attorney, during her lifetime, in renovating, furnishing and maintaining Paulette's house on the land as well as paying for the subdivision of the land. Both parties filed sworn statements in the application.
    
14. In the first defendant's Reply, she asserts that "the Power of Attorney dies with the donor" and whatever expenditure the claimant paid is doubted and "would be regarded as a gift". As to the assertion that the lease title No. 11/OG23/056 is held "on trust for the benefit of the claimant, defendant and their relatives", the first defendant relies on the clear and express devise in their late mother's will to the contrary.
    
15. On 12 October 2011 the first defendant filed an application for summary judgment on the basis of her belief that the claimant has no real prospect of defending the first defendant's counterclaim.
    
16. On 14 October 2011 mindful of the family nature of the proceedings and with a view to assisting the parties to settle their differences, the Court urged the parties:
    

"... to attempt seriously to settle this matter and claimant directed to commence settlement negotiations by making an offer to buy out the first defendant's 50% beneficial ownership in "056" by 28 October 2011 and the defendant to respond by letter by 11 November 2011."

On 8 November 2011 the above dates were extended to 16 November 2011 and 2 December 2011 respectively.

17. By letter dated 30 November 2011 claimant's counsel wrote to defence counsel offering to purchase the first defendant's half share of Lease Title No. 11/OG23/056 for the sum of VT5,609,000 being her half share of a valuation obtained by the claimant which valued the property at VT11,218,000.
    
18. By letter dated 7 December 2011 (undisclosed) the claimant's offer to purchase the first defendant's half share in Lease Title No. 11/OG23/056 was rejected.
    
19. I am grateful for the written submissions filed by counsels for the parties.
    
20. Defence counsel in support of the summary judgment application refers to the provisions of the Wills Act [CAP. 55] including sections 13, 14, 15, 18 and 27 and counsel forcefully submits that the law clearly states that the grant of probate:
    

"shall vest all the property of the deceased ... in the executor ... and shall authorize any person who is in possession of any property ... of the testator (ie. the claimant) to deliver such property ... to the executor (ie. the first defendant)".

21. Furthermore, on the basis that Lease Title No. 11/OG23/056 was transmitted and registered in the name of the first defendant as executor of the Estate of Paulette Galibert on 2 December 2010, defence counsel submits in reliance on sections 14 and 15 of the Land Leases Act [CAP. 163] that the first defendant acquired an indefeasible title to the property "... far stronger and supercedes any right whatsoever claimed by the claimant".
    
22. Finally defence counsel summarily rejects the submissions of counsel for the claimant as avoiding the relevant and applicable law and dwelling mainly on a failed attempt to settle the matter out of court. In this latter regard defence counsel writes in his reply to counsel's submissions (without any supporting evidence):
    

"... on 8 February 2010 the first defendant sought valuation of property title No. 11/OG23/056 at VT18,500,000. The claimant obtained a similar valuation ...

Despite the above, the claimant has under questionable circumstances procured another valuation from the same valuer a little more than half its value ... at VT11,200,000 on 23 November 2011, offering settlement at a lesser amount than expected.

This incident has further hardened the first defendant's stance who wished to further take no more part in this exercise ... In any case the dying wishes of their late mother in this will are paramount consideration, that she and her brother be owners of this property to share."

23. In light of the claimant's defence and counsel's submissions I turn to consider Section 82 of the Land Leases Act [CAP. 163] which provides:
    

"82. Powers of attorney

(1) The Director shall, subject to the provisions of this section, maintain an index of powers of attorney in such form and manner as he may deem fit.

(2) Upon the application of the donor or the donee of a power of attorney which contains any power to dispose of any registered interest in land, such power shall be entered in an index of powers of attorney and the original, or with the consent of the Director, a copy thereof certified by the Director, shall be filed.

(3) Every such power shall be in the prescribed form and shall be executed and verified in accordance with sections 77 and 78 except where the Director in any particular case otherwise permits.

(4) The donor of a power of attorney recorded under this section may at any time give notice to the Director in the prescribed form or in such other form as the Director may approve, that the power has been revoked.

(5) Any interested person may give notice in writing to the Director that a power of attorney which has been registered under this section has been revoked by the death, bankruptcy or disability of the donor, accompanied by such evidence as the Director requires.

(6) Subsections (4) and (5) shall not apply to any power of attorney given for valuable consideration during any time during which it is by virtue of the terms thereof, irrevocable.

(7) If owing to the length of time since the execution of a power of attorney or for any other reason the Director considers it desirable, he may require evidence that the power has not been revoked and may refuse to register any disposition by the donee of the power of attorney until satisfactory evidence is produced."
(my highlighting and underlining)

24. At the outset I point out that the Court has not been provided with a copy of the Power of Attorney relied upon by the claimant nor has the claimant deposed in the several sworn statements filed on her behalf, that the Power of Attorney was ever registered or recorded under the Land Leases Act despite there being some evidence that a Power was exercised by the claimant in improperly transferring an estate asset namely, a leasehold title on Epi Island, into her own name, and which transfer was subsequently consensually rectified by the Court in Civil Case No. 144 of 2009.
    
25. Accordingly, in the absence of any evidence of the recording or registration of the claimant's Power of Attorney (which it was the responsibility of the claimant to do and provide) no reliance can be placed on the provisions of section 82 (4) & (5) which only applies to a recorded or registered Power of Attorney.
    
26. Even if the Power of Attorney was registered (of which there is no evidence), section 82 (4) would still have no application as it expressly opens with the words "the donor of a power of attorney ..." which the claimant is not, and section 82 (5) can be of no assistance either to the claimant, as its contents are inconsistent with the claimant's amended defence which is predicated on the Power of Attorney continuing to have validity and "effect after the donor (Paulette) has died".
    
27. Having said that, the Court of Appeal judgment earlier referred to at paragraph 4 above, clearly identifies the lands in respect of which the claimant was given Powers of Attorney, namely, "agricultural lease (001)" and "original lease 029". This latter title was later surrendered and two new Lease Title Nos. 11/OG23/056 and 11/OG23/057 were created in its place.
    
28. In my view, the surrender of Title 11/OG23/029 during Paulette's lifetime necessarily effected a revocation of the claimant's Power of Attorney over the "029" title by extinguishing the very subject-matter over which the power was given [see: Section 49 of the Land Leases Act [CAP. 163]].
    
29. The common law position as set out in Bowstead & Reynolds on Agency (17 edn) is also clear, where it states under Article 121 at para 10 – 015:
    

"The actual authority of an agent whether conferred by deed or not and whether expressed to be irrevocable or not, is determined by the death or supervening mental incapacity of either the principal or the agent ...". [see: Drew v. Nunn [1879] UKLawRpKQB 48; (1879) 4 QBD 661 at 665]

30. The reason for this, as the learned authors comment is:
    

"the death of the agent obviously terminates his authority, for the relationship is a highly personal one. And the death of the principal deprives the agent of anyone for whom he can act."

A fortiori where the subject-matter of the power has also ceased to exist.

31. In this regard too it may be noted that LR Form 16 which is the prescribed Form for the purpose of section 82 of the Land Leases Act makes provision at the very top column for the insertion of the specific "Title No(s)" of land(s) for which the Power of Attorney is given and the power may be either general or limited. The empowering words on the Form reads:
    

"to be my/its attorney and generally in relation to my/its interests in the above-mentioned title(s) to do anything and everything that I myself/the said .... could do and for me/it and in my/its name to execute all such documents and do all such acts, matters and things as may be necessary or expedient for carrying out the powers hereby given."
(my underlining)

The underlined words, in my view, clearly assumes a living person and further reinforces the common law position that a power of attorney is revoked by the death of the donor of the power.

32. In the absence of a copy of the actual Power of Attorney from which its terms might be clarified (which again, was the responsibility of the claimant to disclose and discover) this Court is unable to determine the applicability of the saving provisions of section 82 (6) in this case. Having said that, section 82 (5) clearly recognizes that the death of the donor of a Power of Attorney is prima facie a revoking event.
    
33. Furthermore, given the following factors: (1) that Lease Title No. 11/OG23/057 was transferred to the sole beneficial ownership of the claimant during their late mother's lifetime, in October 2001, thereby no longer forming part of Paulette's disposable estate; (2) that Lease Title No. 11/OG23/056 was expressly bequeathed in Paulette's will to the first defendant and Ferreol; and (3) that the first defendant was named as the sole executor and trustee in Paulette's will, it is extremely unlikely, in my view, that Paulette would nevertheless, have given the claimant a Power of Attorney over Lease Title No. 11/OG23/056 and I conclude that no such Power of Attorney exists to support the claimant's amended defence.
    
34. In light of the foregoing, I reject the claimant's defence to the first defendant's claim which relies on an (undisclosed) Power of Attorney and a bare assertion that it survived the donor's death. As for the second aspect of the claimant's defence based on payments and funds expended by the claimant in renovating, furnishing and maintaining Paulette's home during her lifetime and at her request, I find that such expenditure does not provide an arguable defence to the first defendant's claim for vacant possession of Lease Title No. 11/OG23/056. I say nothing about whether such expenditures would support a claim against Paulette's estate.
    
35. Accordingly, I GRANT the first defendant's application for summary judgment limited to an order that the claimant vacate Lease Title No. 11/OG23/056 within 2 months of the date hereof.
    
36. The remainder of the counterclaim for damages must be the subject matter of a trial in the event the first defendant wishes to continue with it.
    
37. The first defendant having succeeded in her application, is also awarded standard costs to be taxed if not agreed.
    

DATED at Port Vila, this 27th day of September, 2013.

BY THE COURT

D. V. FATIAKI
Judge.