Malcets v National Tourism Development Office [2005] VUCA 17; Civil Appeal Case 04 of 2005 (18 November 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No. 04 of 2005

BETWEEN:

Mr KENCY MALCETS & FAMILY LELECTEI
on behalf of the former Wala Island Tourism Board Committee
Appellants

AND:

NATIONAL TOURISM DEVELOPMENT OFFICE
First Respondent

AND:

MALAMPA PROVINCIAL COUNCIL
Second Respondent

AND:

WALA ISLAND TOURISM BOARD COMMITTEE
Third Respondent

Coram: Hon. Chief Justice Vincent LUNABEK
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu

Counsel: Mr Saling Stephens for the Appellant
Mr Dudley Aru and Ms Florence Williams for the First Respondent
Mr George Boar for the Second Respondent
No representation for the Third Respondent

Date of hearing: 9 November 2005
Date of Judgment: 18 November 2005

JUDGMENT

This is an appeal against the Judgment of Saksak J delivered at Luganville, Santo, dated 8 August 2005, dismissing an Amended Claim of the Appellants filed on 27 May 2005 on the basis that the Appellants have no standing to sue and no cause of action to substantiate the relief sought.

The Appellants seek Orders from this Court to set aside the Judgment of the Supreme Court and have the matter returned to the Supreme Court for hearing.

The matter arose out of a dispute between the Appellants on behalf of the Former Wala Island Tourism Board Committee and the Third Respondents, Wala Island Tourism Board Committee (“the new Committee”) over the Wala Island Tourism Project.

The Wala Island Tourism Development project is a community project.

The Appellants initiated the project and the community appointed the Former Wala Island Tourism Board to manage the Project on behalf of the Wala Island Community.

It appears that those who initiated the Tourism Project did not properly consult and convene public meetings with all the members of the five Nakamals of Wala and the custom landowners. As a result a dispute arose which impacted on the viability of the project. Further, there were two competing councils of chiefs of Wala over the Chiefly Titles of Wala. The Council dispute adversely affected the Tourism Projects.

On 22 March 2004, the Malekula Island Court ruled that the two competing councils would be dissolved and that a new election of members of the Council of Chiefs would be established to look after the affairs of the Community.

On 20 April 2004, the Members of the new Council of Chiefs were elected. Wala Tourism Commission was then set up to organize and develop the Wala Island Tourism Project. The Malampa Provincial Council now liaises with the Wala Tourism Commission which superceded the Wala Island Tourism Board Committee.

On 6 May 2005, Wala Tourism Commission, Wala Council of Chiefs and the Malampa Provincial Council resolved that income generated from Wala Island anchorage site would be divided into 4 parts, namely Wala Tourism Site and Wharf maintenance Account, Wala new community Account, Wala Trust Account and Malampa Province Account.

On 26 May 2005, Wala Tourism Commission obtained an Order from the Magistrate’s Court at Lakatoro, Malekula restraining Wala Tourism Development Committee and Wala Island Tourism Board Committee from withdrawing any money from the Wala Island Tourism Pojects’ Bank Account and further prevented them from organizing any activities for cruise ships visiting Wala Island.

On 26 May 2005, the Appellants amended a Supreme Court claim initially filed on 24 March 2005 and applied for the following declarations and Orders:

“1. The persons joined as claimant are Ni-Vanuatu citizens residing on Wala Island, Malekula.

2. A declaratory order that the Second Defendant did not have lawful authority from the custom owners to appoint a Coordinator and also take landing fees from the project. The appointment of the coordinator is unlawful and should be annulled immediately. The Second Defendant should stop taking any further landing fees and also return all landing fees already taken from the project.
   
3. An Order that the Second Defendant be stopped from directly interfering with the project and its fund.
   
4. A declaratory order that the appointment of the Third Defendant is null and void and the committee should case from performing any duties of the Committee.
   
5. An order that the Third Defendant be stopped from signing any bank documents with respect to accounts held in the name of Wala Tourism Project.
   
6. An order that the Claimant and members of the first committee resume their responsibilities immediately or in the alternative that the custom owners convene a meeting to appoint another committee of their choice to coordinate their tourism project.
   
7. An orders for damages jointly and severally against the Defendant as follows:
   

(a) loss of income .......................... VT (to be assessed)

(b) general damage ..................... VT 2,000,000

(c) exemplary ............................ VT 2,000,000

Total .......... VT

8. An order against the Defendants jointly and severally for costs of and incidental to this proceeding.
   
9. Any other Orders as the Court deems fit.”
   

The Second Respondent filed a defence to the Amended Claim on 14 June 2005. The substantive part of the Second Respondent’s defence is as follows:

“It does not know and cannot admit paragraph 1 thereof.

The appointment of a coordinator is the council prerogatives as a matter of law and as an authority in charge of Malampa Province. The Council is not required to have the consent of any custom owner in order to appoint a coordinator. All landing fees collected by the Council has been paid to the committee less deduction payable to the Council for coordination of the project and administrative works.

The Claimant has been prevented by the Magistrate Court by order dated 26th May 2005 in Civil Case No. 23 of 2005 from facilitating and organizing a tourism related activities at Wala Island and further by virtue of Island Court Civil Case No. 2 of 2004, decision the Claimant no longer exist and has been superseded by Wala Tourism Commission and Wala Council of Chief established in 20th April 2004.

The Second Defendant involvement in Wala Tourism project has been accepted by the Committee and by virtue of Foreshore Development Act [CAP. 90], the Council have to be involved as an overall authority and in order to ensure that such project develop and gain credibility, transparency and accountability.

The Island Court in Civil Case No. 2 of 2004 has ruled that a new committee be set up and as a consequence Wala Tourism Commission and Wala Council of Chiefs were set up on 20th April, 2004 which bodies are now in charged of the Wala Tourism project.

The inclusion of Wala Island Tourism Board Committee as Third Defendant is now a purely academic exercise since the body has been superseded by Wala Commission Board and Wala Council of Chiefs established pursuant to the Island Court and Magistrate Court decisions referred to above.”

On 14 June 2005, the Second Respondent filed an application to have the Appellant’s claim dismissed in its entirety. On 28 July 2005, the Second Respondent filed another application seeking to set aside the Orders for costs dated 13 June 2005.

On 13 July 2005, Saksak J heard the two applications. On 8 August 2005, His Lordship set aside the cost orders and dismissed the claim of the Appellants on the basis that they had no standing and the claim disclosed no legal cause of action to substantiate the declaratory orders and other relief sought in the Amended Claim.

His Lordship found:

“that there was no evidence by the Claimants (Appellants) showing that the former Committee to which the Claimants (Appellants) claim membership have a resolution appointing the Claimants to bring the action.” His Lordship further held “that the former Wala Island Tourism Board Committee to which the two (2) Claimants claim membership was formed in contravention of Section 3 of the Foreshore Development Act [CAP. 90].”

The appeal was advanced on various grounds but the critical issue was:-

“That the learned trial Judge wrongly held that the Claimants (Appellants) have no standing to bring the action and have no cause of action. Further it is advanced that the trial Judge wrongly held that the former Wala Tourism Board Committee to which the 2 Claimant s claim membership was formed in contravention of Section 3 of the Foreshore Development Act [CAP.90] when the Act is not relevant to the issue before the Court.”

Counsel for the Appellant could not identify nor provide to the Court any authority or document which shows and confirms that Wala Island Tourism Board Committee is a legal entity.

It transpires that the Wala Island Tourism Project is a community project. The members of the Wala Island Tourism Board Committee are chosen by the Wala Island Community.

In July 2003, the Appellants were members of the former Wala Island Tourism Board Committee. On 10 October 2003, the Wala Island Community appointed other people as members of the Wala Island Tourism Board Committee. The Appellants were not appointed to the new Board Committee. It is clear that Wala Island Community could from time to time determine who could be on the Board Committee and who could not. The members of the Board Committee do not have life tenure.

The trial Judge said he was not satisfied that there is a cause of action in the claim.

We respectfully agree with the primary Judge that the claim does not disclose a legal cause of action and the appellants have no standing.

We also agree with the primary Judge that the establishment of the former Wala Island Tourism Board Committee was made in contravention of Section 3 of the Foreshore Development Act [CAP. 90].

We finally note that any foreshore development must be carried out pursuant to the provisions of the Foreshore Development Act which necessarily involves the National and Provincial authorities of the Republic of Vanuatu.

This appeal must be dismissed. We order the costs of appeal and the costs in the Court below in favour of the First and Second Respondents against the Appellants. The costs are to be agreed and if not assessed and determined.

Dated at Port-Vila this 18th day of November 2005

BY THE COURT

VINCENT LUNABEK CJ
J. BRUCE ROBERTSON J
DANIEL FATIAKI J
PATRICK I. TRESTON J
HAMLISON BULU J