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Court of Appeal of Vanuatu |
IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)
CIVIL APPEAL CASE No.11 OF 2007
BETWEEN:
Mr BRUCE KALOTITI
ASLO KNOWN AS BRUCE KALTRIP
AND DAVID YAM KALMET
Appellants
AND:
KALOTITI KALTAPANG,
PATAS PATON,
GEORGE KALRAN,
KALANGAI SOPE,
ANDREW JIMMY,
JOHN KALSAL & JOE B. CARLO
First Respondents
AND:
BREAKAS BEACH ESTATE LIMITED
Second Respondent
AND:
DIRECTOR OF LANDS RECORDS
Third Respondent
AND:
MINISTER OF LANDS
Fourth Respondent
Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Oliver Saksak
Justice Christopher Tuohy
Counsel: Mr Edward Nalyal for the First and Second Appellants
Mr George Nakou for the First Respondent
Mr Garry Blake for the Second Respondent
No appearance of Third and Fourth Respondents
Date of hearing: 26th & 28th November 2007
Date of judgment: 30th November 2007
JUDGMENT
This case concerns the continuing status and effect following Independence of a decision on the custom ownership of land made by a New Hebrides Native Court (NHNC) in 1972.
A judgment of the NHNC at Port-Vila delivered on or about 2 February 1972 ordered:
"(i) Kalran has an individual right within the Reserve to such land on ELUKNFALEP as he or his father have planted or consistently used for gardening. The Court orders Kalran to clear the bush from the area immediately surrounding his coconuts and garden land before 15th February 1972 in order that this area may be marked and measured to avoid any future dispute.
(ii) Apart from Kalran’s land mentioned above, EMIS shall be regarded as a group holding in the collective ownership of those persons listed in the notes of evidence of this case as having working areas thereon, and specified in appendix "A" to this judgment; that such latter persons shall have the right to continue to make gardens or copra on those parts of it that they have hithereto used for such purposes. Those natives listed must clear their boundaries before 1st May 1972 and apply to the Native Court to mark and measure the boundaries by 1st May 1972. The Court will appoint a committee of 5 men chosen from amongst the listed owners by them to adjudicate any interior boundary disputes and there shall be an appeal from the decision of this Committee to the Native Court."
Appendix A, referred to in the Judgment identified 16 persons, namely:
"John Maki, Shem Kalotiti, Kalran Kaltabang, Jack Kalotiti, Kalala, Walter, Kalsaf Sopi, Ioan, John Paton, Kalsaapa Karielol, John Nadhan, Albert, Kalotukor, John Kalsal, Toumet, Sopi Kailul"
In the Supreme Court proceedings brought by the First Respondents, named in the heading in the proceeding as "Kalotiti Kaltabang, Patas Paton, George Kalran, and ors" they claimed to be custom owners entitled under the NHNC decision to the EMIS Land situated at Pango village. In that capacity they claimed to be the people who should rightfully be named on the Register of Land Records as the lessors of leasehold title No.12/0844/127.
The Register for that lease presently records the Appellants as lessors pursuant to a lease granted by them to the Second Respondent, Breakas Beach Estate Limited (Breakas). The Appellants, for their part claim to be the rightful custom owners entitled to be named as the lessors. The dispute in the proceedings is between the Appellants and the First Respondents. The Third Respondent, Breakas, as lessee has taken no part in the litigation. At all times it has indicated its willingness to abide the decision of the Court. The Director of Land Records and the Minister of Lands are formally parties to the proceedings, and they have taken no active part in the litigation.
The trial Judge in a reserved judgment delivered on 4th August 2007 held that the First Respondents represented the custom owners entitled to the EMIS Land under paragraph (ii) of the NHNC decision, and ordered the rectification of the leasehold title by the removal of the names of the Appellants and the replacement of the names of the First Respondents. Consequential Orders were made relating to the re-payment of premium paid to the Appellants for the grant of the lease.
The trial Judge rejected the submission of the Appellants that Orders made by a Native Court ceased to have legal effect or any continuing relevance after Independence on 30 July 1980. The Appellants had argued that at Independence all systems of colonial courts, including the NHNC, became obsolete. They argued that all former judicial decisions ceased to have effect at Independence, and that the rights of custom owners and citizens of the Republic were to be determined anew under the Constitution and laws of the Republic of Vanuatu, and by Vanuatu’s own Courts established under the Constitution.
It is apparent from the reasons for judgment that the trial Judge proceeded under the impression that the decision of the NHNC had been confirmed on appeal by the Joint Court in 1972. However on analysis of the evidence made by the counsel before this Court it became clear that at trial there had been a misunderstanding of the material before the trial Judge. There was in fact no evidence that there had been any appeal from the NHNC decision. Further the NHNC decision was given following a second hearing on 2 February 1972, not on 10 January 1972. In this Court the appeal therefore proceeded on the basis that the relevant decision on custom ownership was that made by the NHNC.
Although counsel for the Appellants filed detailed written submissions in this Court seeking to support the argument that the decision of the NHNC ceased to have effect after Independence, this argument was abandoned during oral submissions. In our opinion the argument was without substance, and counsel was correct not to pursue it further.
The Anglo-French Protocol of 1914 established a joint administration for the New Hebrides by France and England. Article 8 of the Protocol authorised the establishment of Native Courts with territorial jurisdiction by special Joint Regulations. Native Courts, subject to an appeal to the Joint Court established under Article 10, were empowered to hear and determine disputes over custom ownership of land. Decisions on custom ownership made under this legal regime were binding and enforceable on the parties in dispute and remained so until Independence. At Independence, the Constitution of the Republic of Vanuatu became the supreme law of Vanuatu. A new system of Courts was established, and the Constitution directed Parliament to provide for the establishment of Village or Island Courts with jurisdiction over customary and other matters, and to provide for the role of chiefs in such courts. As to ownership of land in Vanuatu, and for transition from the old legal regime to the new one, the Constitution provided:-
"LAND BELONGS TO CUSTOM OWNERS
"BASIS OF OWNERSHIP AND USE
"PERPETUAL OWNERSHIP
"RIGHTS, LIABILITIES AND OBLIGATIONS
92.(1) All rights, liabilities and obligations of the Government of the New Hebrides, whether arising out of contract or otherwise, shall, as from the Day of Independence, be rights, liabilities and obligations of the Republic of Vanuatu.
(2) Nothing in subarticle (1) shall prevent the Government of the Republic of Vanuatu renegotiating rights, liabilities or obligations assumed under that subarticle."
"EXISTING LAW
95.(1) Until otherwise provided by Parliament, all Joint Regulations and subsidiary legislation made thereunder in force immediately before the Day of Independence shall continue in operation on and after that day as if they had been made in pursuance of the Constitution and shall be construed with such adaptations as may be necessary to bring them into conformity with the Constitution.
(2) Until otherwise provided by Parliament, the British and French laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom."
In our view it is beyond doubt that decisions of Native Courts that were binding on indigenous custom owners of land immediately before Independence became binding on them after Independence by virtue of Article 95(2) of the Constitution. Before Independence a decision of the Native Court had binding force because it was made under the British-French law then in force. Article 95 continued all Joint Regulations and subsidiary legislation made thereunder as if made in pursuance of the Constitution, and they remained in force until Parliament replaced them, to the extent that they were not incompatible with the independent status of Vanuatu and wherever possible taking due account of custom.
The jurisdiction given to Native Courts by the Joint Regulations was not incompatible with the constitutional requirements of Articles 73, 74 and 75. On the contrary, the Native Courts sought to ensure that the rules of custom were the basis of ownership. The exercise of jurisdiction of the Native Court, and decisions made by them, are not incompatible with the independent status of Vanuatu, and, in particular, with the fundamental principles of ownership of custom land established by the Constitution.
The argument that on Independence, a vacuum arose where all rights and the liabilities established under the former regime disappeared defies common sense, and is contrary to what happened in fact and in law immediately following Independence. In fact, citizens of the new Republic continue to exercise the rights and obligations that had existed under the earlier laws. In law, the new Supreme Court established under the Constitution held that decisions made by the Joint Courts and by other courts established under the Anglo-French Protocol of 1914 had continuing force and effect: See: Andre Colardeau v. Jean-Yves Manmelin and others [1980] 1 Van LR 1; Picardie Holdings (N.H.)Limited and Johstone v. Societé Civile Jean Ratard and others [1980] 1 Van LR 5; T v. R [1980] 1 Van LR 7 and Dinh Van Tho v. Etat Français [1981] 1 Van LR16.
In the hearing below, the trial Judge understood the issues in dispute would be resolved by deciding whether the 1972 decision of the NHNC continued to be binding on all those claiming custom ownership of the EMIS Land. Based on a submission of counsel made before him, the trial Judge assumed that the First Respondents, to the exclusion of the Applicants, were the rightful people to be recorded as lessors of the leasehold land in dispute if the NHNC decision continued to have binding force. There was no analysis of the terms of the Orders of 1972 NHNC decision, nor was there any consideration of whether the land comprising the Breakas lease was wholly within the boundaries of the EMIS land considered by NHNC.
Before this Court it became clear that the real issues between the parties did not so much concern a dispute about the continuing application of the judgment of the NHNC, but concerned the meaning and effect of that judgment, and, further, on how much of the Breakas lease was within the EMIS boundaries.
The Breakas lease records that the lease was entered into by the Appellant "on behalf of the custom owners of the parcel of land described in the attached plan", being the survey plan delineating the extent of the land leased. In a separate agreement between David Kalmet as representative of the Family Kalmet of Pango Village, and Bruce Kalotiti Kalotrip as representative of the Family Kalotrip of Pango Village, the parties agreed that the proceeds of sale or arrangements made in respect of the land the subject of the Breakas lease must be shared equally between them. This agreement led to Bruce Kalotiti and David Kalmet entering into the Breakas lease, and being recorded as the lessors.
During the hearing of this appeal it emerged that the Respondents dispute that Family Kalmet are the custom owners of any part of the Breakas lease, whereas David Kalmet claims that Family Kalmet are the custom owners of the northern portion of the leased land, being lots 1 to 10 shown on a survey plan attached to lease 12/0844/129. This dispute raises a new issue which was not considered by the trial Judge. It is a dispute that turns on the identification of the EMIS land which was the subject of NHNC decision in 1972. This is a question which in our opinion must be decided by the Supreme Court. The Supreme Court must consider whether it is possible by reference to the 1972 decision and the material referred by the NHNC in its reasons for judgment to ascertain the boundaries of the EMIS land. From the information placed before this Court it seems that there are certain reference points and land features referred to by the NHNC which can still be identified (if need be by evidence) which will identify the boundaries.
As a starting point for this enquiry a survey plan of the land said to be EMIS is necessary. A survey plan of the land claimed by Family Kalmet may also be necessary. Counsel suggested that with the assistance of a survey plan it should be possible to overlay the NHNC reference points and sketch plan to identify the EMIS land. This seems a very desirable approach to this aspect of the litigation.
The next question that may arise, and will have to be decided by the Supreme Court if Family Kalmet establish that the Breakas lease extends onto land belonging to them, will be to apportion the lease premium and ongoing rent received from Breakas between Family Kalmet and the custom owners of EMIS. If it is not possible for the parties to reach agreement, the Court will have to decide on an apportionment which is equitable.
After the interests of Family Kalmet, if any, in the Breakas lease are determined the balance of the land will be the subject of the dispute between Bruce Kalotiti (and his family) and the First Respondents. It is this dispute which turns on the 1972 NHNC decision.
We turn now to the meaning in effect of the 1972 NHNC decision. It became clear as argument of this appeal progressed that both Bruce Kalotiti and the First Respondents claimed their interests as today’s custom owners as the successors in custom to one or more of the 16 persons that were determined to be as the custom owners named in Appendix A to the 1972 decision.
It was faintly argued at one point in the appeal that the 1972 decision should not be followed because it was not a decision made in accordance with custom. In our opinion it is not open to the parties to challenge the validity of the 1972 decision on this basis. The NHNC purported to decide the dispute before it in 1972 according to custom, at least in so far as it was possible to apply custom. If the parties at that time wished to challenge the correctness of the decision on the basis that the rules of custom had not been properly followed it was necessary to do so by appeal to the Joint Court. There is no evidence that an appeal was ever instituted, and the decision of the Native Court became binding on the parties at the expiration of the period for appeal. That decision cannot now be reopened.
In our opinion respective rights and interests of the parties as custom owners derive from in 1972 NHNC decision, and in particular through the 16 people then identified as the custom owners.
This conclusion accords with the findings of the trial Judge that the 1972 NHNC decision remains in force. However we consider that the Orders made by the trial Judge in consequence of that finding cannot be supported as there are numerous issues which must be resolved before a decision can be made about who should be recorded as the lessors of the Breakas lease. We have already identified some of those issues, and we now discuss other issues which emerged during the argument in the appeal.
First, neither the pleadings nor the decision of the trial Judge identified who are "the claimants" referred in the pleadings and the judgment. It is necessary that all those people who are presently entitled as custom owners of the EMIS land be identified, and identified in a way that links them as descendants or successors to the interests of the 16 persons named in Appendix A to the 1972 decision. Counsel for the Respondents (the Claimants in the Supreme Court) in a document handed us during the appeal entitled "First Respondent’s Written Submissions in Support of a Settlement" said that there is agreement between his clients as to all those people entitled to recognition as custom owners through the 16 people named in Appendix A. However counsel for the Appellants was not in a position to confirm this during the hearing. On an appeal the Court of Appeal is not able to take evidence or gather up written consents from everyone concerned to confirm whether there is general agreement.
The identification of all those people presently entitled to claim as custom owners through each of the 16 people named in Appendix A is a crucial matter that must be sorted out.
The identification of the present day custom owners is an essential prerequisite for any order for rectification of the Breakas lease. It is not necessary that each of these people be named as lessors on the Register, but it is desirable that the Register in some way records or refers to another document which enables the identity of the custom owners beneficially entitled to the profits of the lease to be identified.
Other questions of importance arise from a consideration of the term of the Orders given in the 1972 NHNC judgment. Under paragraph (i) an individual interest was declared in favour of Kalran on ELUKNFALEP land. In so far as that falls within the Breakas lease, those custom owners claiming through Kalran have a separate "individual" entitlement to the benefit arising from that portion of the Breakas lease. The identification of that ELUKNFALEP land will have to be made, and then treated separately from the balance of the EMIS land.
Under paragraph (ii) of the 1972 NHNC decision, "EMIS shall be regarded as a group holding in collective ownership" of the 16 named people. This declaration is of fundamental importance. Those claiming under paragraph (ii) of the judgment do not receive individual entitlements. Their entitlement to ownership is only as a member of the group holding collective ownership. In other words, they cannot claim ownership of a particular part of the land, but only a share in the overall ownership of the whole of the EMIS land after the Kalran interest has been recognised.
Paragraph (ii) of the judgment goes on to provide a qualification, namely that the 16 persons named in Appendix A "shall have the right to continue to make gardens or copra on those parts of it that they hitherto used for such purposes". That qualification does not change the overriding declaration that the people named in the Appendix A are members of the group holding the collective ownership. The qualification only recognises that from time to time members in that group shall have a right to use a part of the land for gardens or copra. It is not a right to use the land for other purposes. The rights of use thereby given are of a very limited nature.
No doubt in today’s age this limited right of individual use is not what many custom owners would wish for. However their rights as custom owners are settled by the 1972 judgment. If there is to be any alteration in the rights of use, so as to allow individual possession for residence or other purpose, that is something which will have to be agreed between all custom owners. Agreement could be achieved, for example, by all custom owners agreeing to a different system of land use or by the custom owners agreeing to grant individual leases to people within their membership. Those leases could be registered, and would give the lessees possession of a particular allotment of land to use as they wished. However those are issues which the custom owners will need to work out between themselves once the boundaries of the Kalran and the balance of the EMIS land are settled.
The 1972 NHNC judgment anticipated that Kalran, and those other people named in Appendix A who had gardens or copra on the EMIS land would clear their boundaries and that their boundaries would be marked out, if necessary in the case of the collective ownership, by decision of a committee of five men chosen from among the listed owners, and with the final decision resting with the Native Court in the event of dispute. There is no evidence that these events happened, and the inference is that the boundaries were not properly marked out as envisaged by the judgment.
In our opinion it does not follow that a failure to mark out the boundaries in 1972 renders the 1972 NHNC judgment meaningless or of no continuing relevance. The judgment awarded individual rights to Kalran, and difficult though it may now be, the boundaries of that land will have to be determined on the best evidence available as to where the boundaries exist. In our opinion that is a matter that is within the jurisdiction of the Supreme Court. It is a question which concerns the scope and effect of the Native Court decision. The Native Court has given a judgment on custom ownership. The Supreme Court would not be revisiting that issue, but would simply be making consequential orders to give a proper effect to the judgment.
The situation under paragraph (ii) of the judgment is less clear. The right to make gardens and to grow copra are transitory rights that will come and go with the passage of time. Thirty five years after the judgment, it is likely that the plots used in 1972 for gardens and copra have long since ceased to be so used. It seems to us on the information presently available that the qualification in paragraph (ii) relating to gardens and copra is probably of no continuing relevance. However the primary declaration in paragraph (ii) that the EMIS land (other than the Kalran land) is a group holding in the collective ownership of those named in Appendix A remains in full force. However the possible continuing relevance of the qualification in paragraph (ii) about the gardens and copra is a matter that should be considered by the Supreme Court along with the other issues that we have identified.
Ultimately, when the above matters have been sorted out, consequential orders will have to be made for the distribution of the 83 million Vatu, or thereabouts paid by Breakas as a premium for its leasehold interest and for the continuing rent. In the meantime, it is, of course, open to all those parties that have a potential interest in these monies to reach an interim or a final agreement about their distribution to enable at least part of the money to be distributed before other matters are finally resolved.
When the above issues are clarified, the Court will be in a position to judge who should be recorded as lessors and whether any order for rectification of the Register should be made.
For the reasons given, the Order of the trial Judge that the leasehold title of the Breakas lease be immediately rectified by the removal of the Appellants’ names and the substitution of the names of the "Claimants" cannot be supported and must be set aside. We note in passing that the Order described the leasehold title as "No.12/0844/0127". We were informed during argument that this title has been surrendered, and the relevant title is No.12/0844/129. The consequential orders made regarding the lease premium must also be set aside.
The following Orders will be therefore made to dispose of this appeal:
DATED at PORT-VILA this 30th day of November 2007
BY THE COURT
VINCENT LUNABEK CJ
BRUCE ROBERTSON J
JOHN VON DOUSSA J
OLIVER A. SAKSAK J
CHRISTOPHER TUOHY J
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URL: http://www.paclii.org/vu/cases/VUCA/2007/25.html