The Supreme Court has failed all application seeking relief for constitutional breach over the Port Vila State Lands yesterday afternoon after Justice Andree Wiltens said that the issue has been time bared.
The court said this case is just another attempt to extract more compensation from the government and it is not really a Constitutional Application.
Justice Wiltens also struck out claims from four applicants seeking Vt10 million each for compensation for their constitutional rights over the land claiming the matter has already been settled by the government in ‘1992 agreement’ – that resulted in an amount of Vt275.4 million being paid to some representatives of Ifira, Pango and Erakor Villages.
“The claims are all dismissed,” he ordered.
The claimants of this case are Kalsef Tangraro, Russell Bakokoto and Kalperes Bakokoto as the first Applicants, Steven Kalsakao and Chief Nmak Kalmet Pomal as the second Applicants, Erick Gorrytal and Kalkot Kaltabang at the third Applicants and Berry Kalopong is the fourth Applicant.
The judge said the claimants filed the proceedings that they have been unjustly deprived of property that they haven’t been compensated.
They also claimed that such payments made in are unholy inadequate as true compensation, have not been made to the correct persons as custom land owners and were made out of fund accumulated in Port Vila Urban Land Corporation (VULCAN) for the custom owners – not the government funds.
He said that Article 80 of the Constitution provided for the government to own land acquired in the public interest. He said that the order No. 26 of 1981 is therefore a valid compulsory acquisition of land, provided the necessary notice has been given and there was no challenge to that.
He said that indeed the Applicants acknowledged government’s right to acquire land, under section 12 of the Land Reform Act.
He also stated that Article 77 of the Constitution provided that the Parliament ‘shall prescribe such criteria for the assessment of compensation and the manner of its payment as it deems appropriate...’
The applicants submitted this provision, required Parliament to pass legislation in which they claimed it was not done but simply entered into the 1992 agreement.
He said that he did not accept that submission, but accepted that the Parliament was required to prescribe the criteria and manner for payments, but did not accept that it necessarily involved the passing of legislation.
Justice Wiltens said that the relevant legislation was in place at the time was the Land Reform Act, and in particular section 11 (2) which dealt with the issue of compensation for land taken under section 12.
He said that the subsection 2 goes to provide for the manner of any such payments while subsection 4 deals with the situation where agreement cannot be reached.
He said that the requirement provided by Article 77 of the Constitution has been fully met by the provisions of section 12 of the Land Reform Act and that involved the government and the custom owner to reach an agreement for compensation that led to the 1994 payment.
He said that the government submitted that the 1992 Agreement with each of the chiefs and the representatives of the custom land owners of Ifira, Erakor and Pango was exactly that – an agreement to make compensation for the land acquired in 1981.
He said that it was late and pointed that settlement should have occurred much earlier.
He said that it was also a small settlement given the figure apparently bandied about in 1981 and 1982 of some VT2 billion and especially when compared to the current market valuation of Livae Tarosa and Dick.
“The government was not in position where it could afford much bay way of compensation; and that was made plain at the time of Korman,” he said.
“The evidence which I accept, is that the chiefs and representatives of all three claimant villages signed in 1992 Agreements – they agreed on behalf of their communities to accept, some 11 -12 years after the event, the comparatively small amount the government could afford to pay by way of compensation.
“The sums involved were reached after negotiation and by agreement”.
He also refuted the submission from the first Applicants that the payments related to the loss of enjoyment of the land between 1981 to 1992 due to a strained interpretation of the words of 1992 Agreement.
He said that the wording of the Agreement mainly followed the wording of section 11 that satisfied the court the payments were for loss of land – compensation for the compulsory acquisition.
He said that therefore the Constitutional application must fail because there is no breach by means of unjust deprivation of property, as compensation was required by law to be paid, and was actually paid.
Justice Wiltens accepted that there was no valuation done of the land in question and there was no need to have one because it must have been plain to all that the government could not afford what might have been seen as a more realistic value.
He also accepted that no declaration has been made in 1992 as to who was the customary owner but the chiefs and representatives of the custom owners were in good position to distribute the compensation funds regardless of facts.
He said that by law, the government could take land from custom owners and compensate them and it really followed the fact that there cannot be an ‘unjust deprivation of property’ but if the custom owners were aggrieved for not being paid (or not being paid enough) they would have been to sue the government in contract law.
He said that the other reason was that correct remedy is no longer available to the claimants due to the operation of the Limitation Act and such case is now time bared.
He also stated that if anyone is to be sued pursuant to the receipts signed by those who accepted the government compensation payments would be the recipients – they have indemnified the government in terms of both the amount of compensation, the rightful custom owners and the correct boundaries.
“For those reasons I find there has been no breach of Constitutional rights”, he said.
“The first remedy sought, a declaration that the 1992 Agreement is invalid, void and of no effect is therefore declined”.
He then failed the Vt10 million claim from all the claimants, failed the submission seeking the declaration of the 1992 be declared unlawful.