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Alleged Mis-allocation of a Land Lease in Luganville [2003] VUOM 6; 2003.07 (2 May 2003)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PMB 9081
PORT VILA
Vanuatu

PUBLIC REPORT

ON THE

ALLEGED MIS-ALLOCATION OF A
LAND LEASE IN LUGANVILLE

2 May 2003

8210/2003/07

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PUBLIC REPORT
ON THE
ALLEGED MIS-ALLOCATION OF A
LAND LEASE IN LUGANVILLE

TABLE OF CONTENTS

1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

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1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government and related bodies including the Lands Department and its officers. The Ombudsman can also look into defects in laws or administrative practices, including the grant of land leases.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this report is to present my findings as required by the Constitution, Ombudsman Act and the Leadership Code Act.

2.2 The scope of this investigation is to establish the facts about the allocation of a land title 03/OJ83/020 in the Sarakata area, Luganville to Mr Joshua Bal in 1996 and whether Mr Ken Hutton should properly have been allocated the lease title instead.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS, REGULATIONS AND RULES

Relevant parts of the following laws are reproduced in Appendix H.

CONSTITUTION OF THE REPUBLIC OF VANUATU

OMBUDSMAN ACT NO.27 OF 1998

LAND REFORM ACT [CAP 123]

ALIENATED LAND ACT [CAP 145]

4. OUTLINE OF EVENTS

4.1 Prior to Vanuatu’s independence in 1980, Mr Ken Hutton bought a section of land near Luganville, then known as title 479 lot 27, form the Société Française des Nouvelles Hébrides. His inention was to use the land as future housing for staff of his business, Santo Gas Centre Limited.

4.2 On 15 October 1982, Mr Hutton made an application to the then Luganville Urban Land Corporation for a registered certificate of negotiator in respect of lot 27 (Appendix A). A certificate was subsequently issued (Appendix B) and, although undated, it appears that the certificate was issued on or soon after 15 October 1982. No expiry date is noted on the certificate.

4.3 The title reference to the land was subsequently changed to 03/OJ83/020.

4.4 On 2 May 1995, Mr Joshua Bal made an application to lease land in respect of title 03/OJ83/020 (see Appendix C). The application was approved and a certificate of registered negotiator in the name of "Mr Joshua Bal" was issued dated 13 October 1995, valid for 12 months (Appendix D).

4.5 Subsequently the Urban Land Leases Selection Committee approved Mr Bal’s application and a lease over the land for a period of 50 years commencing 30 July 1980 was entered into between the Minister of Lands and Mr Bal. The lease document (Appendix E) was dated 5 July 1996 and was registered on 20 August 1996. No lease premium was awarded for the land, although the Ombudsman has not been able to determine conclusively why.

4.6 Mr Hutton was not notified of Mr Bal’s application for registration as negotiator, nor of his late application for a lease of the land.

4.7 In 1997, Mr Hutton discovered that Mr Bal had obtained a lease and built a house on the land.

4.8 On 6 September 1999 the senior Lands Officer, Urban Lands Unit, Santo wrote to the Ombudsman in response to a letter sent during this investigation (Appendix F). The letter states "How the alienator status of Mr Hutton was over looked is not known" and acknowledges the apparent breach of the Alienated Lands Act giving alienators priority over other applicants for land leases.

4.9 Mr Hutton requested that a replacement parcel of land be allocated to him, however the Lands Department refused up until the time when a working paper was issued to all parties by the Ombudsman in February 2003.

5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also, a working paper was provided prior to preparation of this public report to give the individuals mentioned in this report another opportunity to respond

5.2 In response to the working paper, the Director of Lands sent the Ombudsman a letter (Annexure G) in which he advised that the Department would allocate another land title to Mr Hutton in lieu of 03/OJ83/020.

6. FINDINGS

6.1 Finding 1: The Ombudsman finds that a lease over title 03/OJ83/020 should not have been granted to Mr Bal while Mr Hutton held a registered certificate of negotiator.

6.1.1 Mr Hutton had made an application for, and been granted, a certificate of registered negotiator (Application B) before the commencement of the Alienated Land Act. Accordingly, under section 4(2), he was to be registered as an alienator.

6.1.2 The certificate of registered negotiator issued to Mr Hutton did not have an expiry date and accordingly was still valid when Mr Bal made his application in 1995.

6.2 Finding 2: The Ombudsman finds evidence that oversight by the Lands Department and/or Urban Land Leases Selection Committee was responsible for the improper issue of a certificate of registered negotiator, and then a lease, to Mr Bal.

6.2.1 While there was nothing improper in the way which Mr Bal’s application was made or dealt with, records should have disclosed the prior registered certificate of negotiator and alienator status of Mr Hutton.

6.3 Finding 3: The Ombudsman finds evidence that Mr Hutton has suffered loss as a result of maladministration by the Lands Department and/or Urban Land Leases Selection Committee and should be compensated for his loss.

6.3.1 During this investigation, the Ombudsman asked the Lands Department to consider allocating a lease over a different block of land to Mr Hutton in lieu of the original title. Mr Hutton had indicated that he would accept this proposal.

6.3.2 Until a working paper was issued by the Ombudsman in February 2003, the Lands Department had refused to agree to this proposal.

6.3.3 However the Director has now indicated that a replacement land title will be allocated to Mr Hutton (Annexure G).

7. RECOMMENDATIONS

7.1 The Ombudsman notes the undertaking given by the Director of Lands in his letter dated 3 March 2003 (Appendix G) and applauds the Director’s decision to adopt the Ombudsman’s recommendation and resolve the matter in this way.

7.2 The Ombudsman also recommends that the Director of Lands review administrative procedures to ensure that certificates of registered negotiator are not improperly issued in the future.

Dated the 2nd day of May 2003.

Hannington G ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Copy of application for lease by Kendall Alan Hutton made 15 October 1982.

B Copy of certificate of registered negotiator issued to Kendall Alan Hutton, undated.

C Copy of application to lease land by Joshua Bal dated 2 May 1995.

D Copy of certificate of registered negotiator issued to Mr Joshua Bal dated 13 October 1995.

E Copy of Lease between Minister of Lands and Mr Joshua Bal dated 5 July 1996.

F Letter from Mr Ben Garae, Lands Department, to Ombudsman dated 6 September 1999.

G Copy of letter dated 3 March 2003 from Director of Lands to the Ombudsman.

H Relevant laws.