The Appeal Court has dismissed an appeal by 178 appellants who are residents of Ohlen Freshwind against a decision of the Supreme Court that dismissed their attempt to prevent the subdivision of the area.
Issued Friday last week, the decision pointed out that there is a difference between State Land and Public Land and that the appellants status on Ohlen Freshwin remains as squatters as observed by the trial judge.
On June this year the Supreme Court dismissed the claim which the respondents includes Barak Sope, Fresh wind Limited, and the Republic of Vanuatu. The appellants were in occupation of parts of the land and claim to have enforceable interest in respect of it.
Two grounds of appeal were summarized by the Appeal Court.
“First, that the land area in dispute was not included within the boundaries of the land declared to be public land; and
“Secondly, the land area in disputed was never “State Land” and accordingly could not be public land.
According to a brief history comprised in the Appeal Court judgment, a French national, Henri Ohlen applied to the court on 25 October 1929 in respect of the parcel of land of 21 hectares 40 acres which by deed of 29 September 1929 he acquired the Societe Francaise des Nouvelle Hebrides, was granted with the judgment made in his favour.
He was entitled to remain on the land after Independence until custom owners pay for improvements on pursuant to the Land Reform Act [CAP 123].
The land was declared public land to become part of the urban Physical Planning Boundary of Port Vila in 1981 according to the Land Reform.
The claimants settled onto part of the land between 1982 and 1985 with knowledge and consent of former MP and prime minister, Barak Sope.
The land, lease title 11/0133/008 was registered for 50 years between the Minister of Lands (lessor) and Freshwind Limited (lessee) on January 1995.
In 1997, the lease was surrendered for the purpose of subdivision and derivative leases were created.
When dealing with the first ground of appeal, the appeal court Judges note the relevance of the Land Reform Act and that there is no definition of public land in the Act.
The Appeal Court went to a certain extend to visit parts of the Act including 4 sections of Part VI of a Provision headed “State Land”.
Vesting of State Land, Use of Public Land by custom owners, Notice by Minister of use of Land, and Right of alienator to remain in occupation of land are discussed in Section 9 to 13 of the Land Reform Act respectively.
Discussing the 4 Sections, the Appeal Court stated that Section 9 (1) vests all “State Land” as defined, in the Government and constitutes such vested lands as “public land”.
“Subsection (20 empowers the Minister of Lands on the advice of the Cabinet to undeclared “public land.”
“In terms of section 10 so long as public land remains undeveloped it may be used by custom owners for any purpose until Government requires such land for development or other public purposes.
The Court highlighted both sections only applied to “the custom owners of the land in question and not to squatters or occupiers who are not custom owners”.
“From the foregoing we are satisfied that the appellant’s submission concerning the 1981 Order is based on a misconception and is unsound.
“State land is not the same as public land. By definition State Land exists prior to independence whereas public land is created after independence pursuant to section 12 of the Land reform Act which in terms of section 9 (1) vested and renamed State Land as Public Land.
“In our view, whatever may have been the difference between State Land and alienated land before and after independence in this case it ceased to exist with the enactment of the Land Reform Act and the making of the 1981 Order when both types of land became Public Land.”
The judgment continues to state that as proprietor of “Ohlen Freshwind”, the Government without any need to consult or protect former custom owners of the land was perfectly entitled to lease the land to Freshwind Limited.
Part of the appeal also sought for entitlement compensation for the appellants. The relief was also turned down by the court because there is no evidence that the appellants obtained the consent of the Minister of Lands at the time, to build houses and plant fruit trees.
It was also pointed out that compensation is only for custom owners which the appellants never claimed to be.
According to the findings of the court, Barak Sope whom the appellants claimed gave then the consent to move to the land was an uncompensated former custom owner with no right over the land and is also not the Minister of Lands at that time.
The Appeal Court upheld the observation of the trial judge that between the period of 1982 to 1995 the appellants took possession of the said premises.
“The earliest date of occupation was therefore 1982 the year after the 1981 order had been signed and as the trial judge found the appellants went onto the land as squatters and their status remains as squatters.”