Vinbel v Public Prosecutor [1997] VUCA 5; Criminal Appeal Case 03 of 1997 (8 October 1997)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Criminal Jurisdiction

CRIMINAL APPEAL CASE No. 3 OF 1997

BETW>BETWEEN:

MR ABEL VINBEL, MR JOEL VINBEL,
MR JONAH SIMO, MR MAXIM WILLIE, MR KALMET LAMBI
all of Leviamp village North West Malekula,
in the Republic of Vanuatu
Appellants

AND:

THE PUBLIC PROSECUTOR OF VANUATU
C/- De Queiros Street, Port-Vila, Efate
in the Republic of Vanuatu
Respondent

oram: Mr Justice Vice Vincent Lunabek, Acting Chief Justice
Mr Justice Bruce Robertson
Mr Justice John von Dour> Mr Justice Oliver Saksak

Counsels: Mr Stephen Saling for the Appellantslants
Mr John William Timakata, Public Prosecutor for the Respondent

REASONS FOR ALLOWING OF AN APPEAL

For many years, there has been a dispute over a land known in custom as "Naha" situated in North West Malekula. After a lengthy hearing, the Malekula Island Court held on 31st August 1988 that the disputed land belonged to Manasseh Natnaor.

The other three (3) parties involved in that hearing (Harry Kama Fare, Billy Daniel and Abel Vinbel) have appealed to the Supreme Court seeking a review of that Island Court decision. We were advised that because of the lack of resources, that Appeal is still awaiting a hearing.

It was suggested that in the meantime the parties other than Abel Vinbel have followed the 1988 decision. Those persons other than Abel Vinbel have complied with the effect of the finding. However we are told that on 14th February 1990, the then Honourable Chief Justice Cook made a restraining Order to deal with matters pending the hearing of the Appeal. Because of further problems two years later the matter came before the then Chief Justice Vaudin d’Imecourt. On 8th October 1992 he made an Order in the following terms:

"WHEREAS on the 14th day of February 1990, the Hon. Chief Justice Cooke made a restraining order that the land the subject matter of this appeal should remain as it was before the case was heard in the Island Court, save that any persons having gardens on the said land should be allowed to continue to work the same until determination by the Supreme Court of this appeal.

AND WHEREAS it has been reported to the Supreme Court that all parties herein except Billy Daniel and his family have respected the above mentioned order

AND WHEREAS Billy Daniel and his father have continued to plant coconut and cocoa in contravention of the said order

IT IS HEREBY ORDERED that the said Billy Daniel and his father and family shall forthwith desist from continuing to exploit the said land and that they shall further stop from erecting any building upon the aforementioned land ant that they shall forthwith vacate the said land.

IT IS FURTHER ORDERED AS FOLLOWS that no other parties to the dispute shall undertake any new development on the said land until the appeal in this case is resolved but that the Appellants shall be at liberty to continue to garden it in accordance with the order of Chief Justice Cooke whose order of 14th February 1990 shall remain in force.

DATED at Malekula this 18th day of October 1992."

As against that background, that the proceedings herein were commenced by the State Prosecutor.

Four Counts were included namely:

1. Abel Vinbel Habhabat was charged that in 1996 he instructed his brother Joe Vinbel and Jonah Simo to erect a new cattle fence on Leviamp land in contravention of the Supreme Court orders previously set out above.

2. Joe Vinbel and Jonah Simo (aka Jonah Simon) were charged on the allegation that in 1996 they erected a new cattle fence on Leviamp land in contravention of the Court orders.

3. Maxim Willie and Kalmet Lambi, it was alleged, erected two new cattle fences in 1996 within the restricted area contrary to the Court Orders.

4. William Willie was charged because it was alleged that in 1996 he built a new house within the restricted area and operated a store within that house.

Each of these charges was alleged to be contempt contrary to Section 8(c) of the Courts (Witness Summons) CAP 35. We were persuaded that charging in these circumstances under that provision was misconceived and inappropriate. The particular Chapter is concerned with the procedure to make provision for compulsory attendance in Court and to prescribe penalties for contempt thereof and to prescribe penalties for false evidence in all Courts.

Although the words of Section 8 are expressed in general terms, and specifically provide that any person who does any act or publishes anything calculated to interfere the due course of justice or the lawful process of a Court commits a contempt it does not have universal application. We accepted the appellants’ submission that this is to be read within the context of the particular Chapter and not as a provision of general application.

This is a provision which relates to getting witnesses to Court and to ensuring that they give truthful and honest evidence. It is not a general provision regarding the enforcement of Orders properly made by a Court. Mr Timakata accepted the strength of this submission. This was sufficient to deal entirely with the matter before us.

For completeness we note that there is provision for summary punishment for contempt of Court in Section 23 of the Courts Act [CAP 122]. That important provision is not appropriate for dealing with non-compliance with Orders of the Court in this context either.

Similarly Section 82 of the Penal Code [CAP 135] has particular provisions with regard to the conduct of judicial proceedings. It is important to note that Section 82(3) notes the provision of that Section are in addition too, and do not derogate from the powers of the Supreme Court to punish for contempt of Court.

The Court of Appeal in de Robillard, Civil Appeal No.1 of 1997 reviewed at length issues relating to contempt and the principles discussed there will be applicable to the present case.

If there is a continuing wilful defiance of the orders made by Chief Justice d’Imecourt in 1992, the Public Prosecutor or parties in the actual proceedings can institute proceedings to have persons who were parties to the proceedings (or others against whom knowledge of the terms of the Orders can be established) brought before the Court to show cause why they should not be committed for contempt.

That is the appropriate course of action which must be followed. The provisions specifically intended to deal with witnesses are not available to deal with the generality of contempt cases, any more than the other contempt provisions which are necessary for the proper functioning of the Court would be appropriate either.

This appeal was allowed purely on the issue of proper process. The Court has not considered the merits of the factual positron or the issue of whether the existing Orders made in the Supreme Court applied.

We note that there was a finding of fact by the learned Judge in the Supreme Court that whichever of the maps was looked at, the activities now complained of were being carried on areas which were common to all of them as being outside the area of Abel Vinbel. If that is the position it is difficult to see how on properly instituted proceeding Mr Vinbel (at least) will not find himself again at risk of Court process being exercised against him.

The other persons named in the charges were not parties to the original proceedings. Evidence that they have actual knowledge of the terms and the background facts would be a central item requiring proof. We suspect that in a matter which has had as high profile as this it may not be difficult of proof.

We simply note that these Appellants will be well advised to consider their position including their current knowledge of the existing Orders of the Supreme Court. To continue to act in defiance of the Orders of the Supreme Court will inevitably invite further action against them which may be dealt with more severely than was the case in the past.

For these reasons the Appeal was allowed. The parties are free to take such further action as they deem appropriate to deal with any continuing problem.

DATED at Port-Vila this 8th day of October 1997

BY THE COURT

LUNABEK V.
ROBERTSON B.
VON DOUSSA J.
SAKSAK O.A.