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Supreme Court

1706 of 2021
01 Feb 2022
Justice Gustaaf Andrée Wiltens
Director of Lands, Survey and Records
Rachael Joel Tafau - First Respondent; Kalagis Tony - Second Respondent; James Tony - Interested Party
Mr L. Huri for Mr H. Tabi for the Applicant; Mr A. Godden for the First Respondent; No appearance by or for the Second Respondent, who is now deceased; Mr F. Loughman for the Interested Party


A. Introduction

1. This was an application by the Director of Lands (“the Director”), pursuant to section 8(g) of the Land leases Act [Cap 163] (“the Act”), for certain clarification in relation to a registered Lease.

2. Mr Loughman was not present.  Enquiries of his Office indicated he was on leave.  His client had filed a sworn statement setting out his position in relation to the application.

B. Application

3. The Director filed a sworn statement in support of the application.  That evidenced the following relevant transactions:

- Leasehold Title no. 03/OJ71/008 was registered in the name of George Tony on 19 February 1997; and

- A Transfer of that Title, from George Tony to Rachel Joel Tafau, was registered on 6 April 2010.

4. The Director had subsequently learnt that the Transfer was questionable.  Through a process of reconstruction of events, the Director was able to state:

- In October 2009, George Tony’s elder brother Kalangis Tony approached the Director.  He held himself out as George Tony, and wanted assistance to Transfer Leasehold Title no. 03/OJ71/008, which he claimed was his land, to his daughter Rachel Joel Tafau;

- By letter of 23 September 2011 addressed to the Public Solicitor, Kalangis Tony admitted “…having pursued the purported transfer“, which he “…now realized …to be illegitimate”.  He sought to “…withdraw his signature” and “…authorise the registration to his daughter… be withdrawn and/or cancelled”;

- By letter of 11 September 2013, the Public Solicitor advised the Director of the letter from Kalangis Tony and the fact that George Tony had passed away on 17 June 2009.  The Public Solicitor was acting on the instructions of James Tony, the eldest son of the late George Tony.  James Tony had been granted letters of administration in respect of the estate of the late George Tony, and was concerned about the assets of the estate.

5. The Director was respectful of the principle of indefeasibility of title.  However, he was also concerned the Transfer had been achieved by fraud, and accordingly whether rectification of the title was appropriate, pursuant to sections 99 or 100 of the Act.  The Director sought guidance from the Court.

C. Other Evidence

6. James Tony filed a sworn statement in which he alleged the Transfer was fraudulent and the land referred to in the Title should be an asset of his later father’s estate.

7. Rachel Joel Tafau also filed a sworn statement.  She maintained that two plots of land, owned by her late father Kalangis Tony and his brother the late George Tony, were side-by-side.  She was repeatedly told by her late father that the land with developments on it was her late father’s; and that the land without any development was her late uncle’s.  Her late uncle resided largely in New Caledonia, and therefore his land was used for gardening only, whereas her father built a rental house on his land.

8. In 1998, her late father instructed Rachel Joel Tafau and her husband to commence living on his land.  They cleared the grounds and repaired the house, and remained living there from then onwards.  

9. She related a telephone conversation with her late uncle, which she was unable to identify by date/time, about a month prior to his passing away.  She stated that he had expressed disappointment in the achievements of his children, and compared favourably what Rachel had achieved.  In effect, he gifted her his land next-door to where she was residing.

10. She related also that her late father had explained to her that the Director had mistakenly registered the land where she was residing, and that he had attempted many times to correct that, but his pleas were ignored.

11. She appended a copy of agreement dated 19 October 2009 between her late father and the Lands Department, which indicated he would pay VT 5,000 monthly towards the outstanding land rent in respect of Title No. 11/OF71/008.

D. Discussion

12. Counsel agreed the sworn statements; no witness was called or cross-examined.  I heard oral submissions, although Mr Godden also submitted unsigned written submissions.

13. Mr Huri submitted that there was clearly fraud involved in the Transfer, and that rectification should therefore follow.  The late Kalangis Tony had acted dishonestly in holding himself out as another, and holding out that he was the registered proprietor of the land.  There was his admission, as well as the fact that George Tony had passed away prior to the Transfer occurring, removing all doubts about the authenticity of the Transfer.

14. Mr Godden was unable to mount a credible argument that the Transfer was anything but fraudulent, given the clear and obvious dishonesty perpetrated by the late Kalangis Tony.   

15. However, Mr Godden submitted that rectification could only follow if an application were made by an individual claimant.  He pointed to the lack of such by Mr James Tony or any other beneficiary of the estate of the late George Tony.  He considered the process adopted by the Director to be impermissible.  He cited in support of his argument the authority of Frazer v Walker [1967] NZLR 1069.  I do not consider that case to assist his argument.  I can see no reason why the Director is not permitted to ask the Court for an opinion in this instance.  Section 8 of the Act is extremely broad, and I am satisfied the present application comes within that ambit.

16. Mr Godden was also concerned with fairness to his client.  He submitted she should be indemnified by the Government, pursuant to section 101 of the Act.  That submission was on the basis that the Director was required to make further/better inquiries prior to the registration of the Transfer.  Whan tasked to point out where in the Act that requirement was stipulated, he could not.  He rightly pointed to the Director’s ability to so inquire pursuant to section 8 of the Act, but nowhere is there a requirement for the Director to do so.  Indeed, the provisions of section 24 of the Act run counter to Mr Godden’s argument.

17. There is no suggestion of mala fides or improper conduct by the Director.  If the late Kalangis George advised Ms Tafau of the problem with incorrect registration of the titles, as she has evidenced, then she is not entitled to indemnity from the Government.  In any event, it is clear she has been aware of this particular issue for a number of years and done nothing to protect herself.  If anyone is to blame for her present predicament, it is her late father.

18. Mr Godden was further concerned with the consequences of rectification, and what that might lead to in respect of his client’s ability to protect her interests.  He sought a stay, for a short period, so that he could commence an action disputing true ownership of the Lease, and seek to register a caution against the Title.

E. Result

19. The registration of the Transfer of ownership to Ms Tafau was obtained as a result of fraud.

20. That cannot be allowed to be the position.  Accordingly, rectification is directed, such that the Title reverts back to the ownership of the estate of the late George Tony.

21. That aside, there is to be no other dealing with the property until after 1 March 2022.  In this intervening period, Mr Godden can bring whatever action he sees fit on behalf of Ms Tafau and register a caution against the title to protect her interests.

22. Mr Huri agreed that in the circumstances there be no order as to costs.  They are to lie where they fall.

Dated at Port Vila this 1st day of February 2022




Justice G.A. Andrée Wiltens