Historic Win

Supreme Court Judge Gus Andree Wiltens has declared the decision of 3 August 2012 by Steven Kalsakau instructing the Acting Director to find and allocate State lands to Department of Lands’ staff members on favorable terms as “unlawful”.

The 82 leases granted following that instruction are cancelled; and/or removed from the Department of Lands’ records ‘and all are to revert back to the State, pursuant to section 99 of the Land Leases Act [Cap163], Justice Wiltens conveyed in his judgment on the judicial review which was handed down on Wednesday, February 6 2019.

Justice Andree Wiltens also ordered for the Minister to reimburse each of the Second Defendants (52 Department of Lands staff) all their associated costs incurred in the registration and/or granting of the leases; and the costs of the proceeding to be paid equally by the Second Defendant on agreement if not taxed.

The historic win came about after the trial of the case brought by the Government against the staff who were granted discount state land leases was scheduled for February 4-6 2019.

But the trial was short-lived after lawyer Daniel Yahwa who represented the second defendants and third defendants (14 other DOL staff) sought an adjournment of the trial on the first morning.

Justice Andree Wiltens declined his application but allowed him time to enter into settlement negotiations with lawyer Hardison Tabi who acts for the claimant.

Subsequently the judge was advised that next morning that the matter had settled and a consent memorandum was being prepared, upon receiving the consent memorandum he allowed the application for judicial review.

The case dates back to more than six years ago – August 3, 2012 – when former Minister of Lands Steven Kalsakau issued a letter to the then acting Director of Lands to find and allocate lots within the urban land in Luganville and Port Vila to the Departmental of land staff at 50 % premium.

The incumbent Minister of Foreign Affairs, Ralph Regenvanu was the state minister who pursued the state land titles acquired under the preferential access process used by former Minister Kalsakau when he took over the ministerial portfolio of lands in 2013, where he requested the Department of Lands staff to surrender their leases and ordered investigations to identify those who acquired the leases under the former minister.

According to the Valuation Report requested by the minister on the state land then, the lots have not been previously subjected to leases.

Seven of the subject properties were leased or allocated with building or buildings on them. There are instances where more than one lot were allocated or leases or both to staff members of the Department of Lands and members of the Public, where staff members or individuals of the public used different names, and instances where leases are in the name of staff

A Briefing Paper prepared for the Ministry of Lands in March 2014 highlighted the income lost to the state and the improper process followed in the valuation and discounting of premiums with respect to the leases over state land by the former Minister of Lands Steven Kalsakau as follows:

“The total value of leases over state land issued by Minister Kalsakau and based on an independent (non-Department of Lands) evaluation in Port Vila was approximately VT781,818,000 (or approximately AUD $8 million) and for Luganville is 181,054,000 (or approximately AUD $2 million). The state land leased in Port Vila and Luganville was 128,288 m2 was 67,205 m2 respectively.

“Furthermore, the public interest requirement associated with the leasing of state land should have ensured that the process to lease involved the competitive tendering for land and assets greater than VT5 million, in accordance with the Financial Services Act. These processes were not followed and resulted in a loss of substantial income to the public with most staff lessees paying premiums of less than 1 per cent of the independent value of the land.

“Using statistical data relating the leases issued to staff of the Ministry of Lands and Department of Lands over state land to staff by Minister Kalsakau it is possible to illustrate the serious discounting of land that was undertaken and the substantial flaws in the processes related to the valuation of land and calculation of premiums.”

Minister Regenvanu’s bid to right the dubious land lease deals was almost derailed when former Minister Paul Telukluk took over the Ministry of Lands portfolio in 2015 and decided to withdraw the Court case against the staff of the Ministry of Lands and Department, claiming that “based on the advice of the Attorney General and the State Law Office since January 2013, 2014 and 2015, and the Ombudsman’s Investigation, it is not likely that the Government will win this case if it goes to trial in the Supreme Court”.

It took more than three years but the momentous win this week proved otherwise.

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