Noel v Malere - Note [2002] VUCA 32; CA 13-02 (30 October 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
APPELLATE JURISDICTION

Civil Appeal Case No.13 of 2002
BETWEEN

SUSAN NOEL & AWARELE AMERENE

Appellants
AND

RAYMOND MALERE

First Respondent
AND

THE MINISTER OF LANDS

Second Respondent
AND

THE DIRECTOR OF LANDS

Third Respondent

Appellants: Mr. Toa
First Respondent: Mr. Stephens
Second and Third Respondent: Mr. Edwards and Ms Molisa

NOTE

This appeal has been allowed by consent. The original orders have been set aside and the claim and counterclaim returned to the Supreme Court for rehearing before another judge. All costs have been reserved to that judge.

Whilst no formal judgment is required we consider a number of issues should be highlighted for consideration by the parties.

1. It is imperative the original Land Records file is located immediately. All documents should be numbered sequentially as they currently appear in that file. The file must be carefully preserved and all relevant documents be available for the rehearing. The sequence of events may be of importance at the rehearing. The lease, all plans and applications and decisions concerning the land must be available.
   
2. All parties must consider as quickly as possible whether or not requests for subpoenas need to be made for the production of documents.
   
3. The evidence before this Court appeared to shew that the first respondent sat and voted on the committee which made the recommendation to the Minister concerning this Lease. No findings were made as to whether or not this was so and whether at the time the first respondent was aware of any applications of the appellants concerning the land. The issue should be addressed in evidence and argument by the parties at the rehearing.
   
4. If it is found that a valid lease was issued to the first respondent the parties must consider whether or not that lease is in part held on trust for the appellants. The resolution of that question, if it arises, should be addressed in evidence and argument by the parties.
   
5. The appellant must ensure that if any other person has a registered interest in the Lease that may be affected by the order sought in the counterclaim, that person must be joined as a party.
   
6. There must be no dealings with the land that could affect the interest claimed by the appellants before the trial, except with the consent of the appellants or prior approval of the Supreme Court.
   
7. This whole matter screams out for settlement and all parties should assess carefully their positions in deciding if the issues can be resolved without further litigation.
   

Dated at Port Vila this 30th day of October 2002

Bruce ROBERTSON J.
John von DOUSSA J.
Daniel FATIAKI J.
Roger J. COVENTRY J.