Solomon v Turquoise Ltd [2007] VUCA 9; Civil Appeal Case 04 of 2007 (5 April 2007)

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

CIVIL APPEAL CASE No. 04 of 2007

BETWEEN:

ALBERT SOLOMON

Appellant

AND:

TURQUOISE LIMITED
First Respondent

AND:

MINISTER OF LANDS AND NATURAL RESOURCES
Second Respondent

AND:

DIRECTOR OF LAND RECORDS
Third Respondent

Coram: Hon. Justice Vincent Lunabek, CJ
Hon. Justice Bruce Robertson, J
Hon.Justice John Mansfield, J
Hon. Justice Oliver Saksak, J
Hon. Justice Hamlison Bulu,, J

Counsel: Mr Daniel Yawha for the Appellant
Mr Robert Sugden for the First Respondent
Mr Justin Ngwele for the Second and Third Respondents

Date of hearing: 26 March 2007
Date of Judgment: 5 April 2007

JUDGMENT

This is an appeal by the Appellant dated 16 March 2007 against the Judgment of Tuohy J dated 9 March 2007.

In the proceeding before the Supreme Court, the Appellant, (then Claimant), filed a Supreme Court claim against the First, Second and Third Respondents challenging the granting of the Lease Hold Title No.12/0512/002 which is located at Lelepa Island by the Minister on 18 April 2006 to the First Respondent, was made by fraud or mistake. The Appellant, then, sought in his claim relief under Section 100 of the Land Leases Act [ACP.123].

During the trial preparation conference, it was accepted by the parties that if ownership of the land was not disputed at the time the Minister granted the lease, then he would not have the power to grant it. If that was so, the registration of the land lease title No.12/0512/022 would have been obtained by mistake and would have to be cancelled under Section 100 of the Land Leases Act and the lease itself declared a nullity.

Further, Tuohy J identified a potentially decisive issue to be determined as a preliminary point of law. The issue was framed as follows:-

ISSUE

At the time, the Minister granted the lease to the First Defendant, pursuant to the power in Section 8(2)(b) of the Land Reforms Act, was the ownership of the land disputed in terms of Section 8(1)(b)?

The facts are not in dispute and are succinctly summarized by the trial Judge by way of chronology. They are as follows:-

• In April 2004, the West Efate Area Lelema Joint Customary Land Tribunal declared Nareo Kalsuak and Kalsau Naparo the custom owners of the land.
• On a later date unknown in 2004, two of the unsuccessful parties before the Lelema Tribunal, Jimmy Marango and John Kaloroa on behalf of Family Leisongi Leivele, appealed against the Lelema Tribunal decision to the North West Efate Area Customary Land Tribunal.
• On 18 October 2005, the then Minister of Lands, Willie Jimmy Tapangararua, issued a registered negotiator’s certificate for the land to the Claimant. The custom owners named in the certificate were Nareo Kalsuak and Kalsau Naparo.
• On 22 November 2005, the Minister of Lands, Maxime Korman Carlot, issued a registered negotiator’s certificate for the land to the First Defendant. The custom owners were named as Chief Jack Tuqulumau and three others.
• On 29 December 2005, the North West Efate Area Land Tribunal issued its decision on the appeal. The decision declared Philip Kalsuak to be the custom owner of the land.
• In early 2006, John Kaloroa filed a further appeal to the Efate Island Land Tribunal which has not yet been heard.
• On 18 April 2006, the Minister granted the lease of the land to the First Defendant. It was registered on 20 April 2006.
  

On 9 March 2007, Tuohy J gave his ruling and answered the question in the positive in this way:-

"I have come to the conclusion that Mr Sugden’s submission is correct. Subsection (1) of ss.10, 15 and 20 of the Customary Land Tribunal Act states clearly and succinctly that if all parties to a dispute accept the decision of a lower level tribunal, the dispute is resolved. Subsection (2) separately provides that any party who does not accept the decision may appeal to the next level.

Parliament did not have to include subsection (1) in order to provide the right of appeal set out in subsection (2). Most provisions giving a right of appeal consist of no more than is stated in subsection (2).

Subsection (1) must have both a meaning and a purpose. In my view the logical effect of subsection (1) is that a dispute is not resolved if all the parties do not accept the decision made at a lower level. Furthermore Parliament has seen fit to make that specifically clear."

The Appellant now appeals against that ruling and seeks the following Orders:-

1. An Order that the Appeal be allowed.

2. An Order that the Judgment of the Supreme Court dated 9 March 2007 be set aside in its entirety.

3. An Order for costs of and incidental to the Court below and this Court.

The appeal is advanced on the following grounds:-

1. That a custom land owner has be identified and declared by a Land Tribunal. The land the subject of the dispute is no longer in dispute to warrant the Minister to exercise his powers under Section 8(1)(b) of the Land Reforms Act [CAP.163].

2. That an appeal has been filed against the said judgment of the Land Tribunal. However, there was no application for stay or suspension of the said judgment and no stay or suspension was granted.

3. That the trial Judge was in error in not applying the authority of the Court of Appeal Judgment in Traverso v. Chief Kas Kolou, CAC 26 of 2003.

4. That the trial Judge erred in his interpretation of Section 33 of the Land Tribunal Act which states that the decision is final and binding on all parties.

5. Further that the trial Judge is in error in holding that Sections 10, 15 and 20 of the Land Tribunal Act provide a circumstance of dispute.

6. Finally, that the trial Judge is in error in not adjourning the matter since Mr Philip Kalsuak, the declared custom owner intended to be a party in the case before the Court below.

Sections 1; 2; 10(1), (2); 20(1), (2); 33(b); 34(2), (3) and 40(1)(d), (e) are the relevant provisions of the Customary land Tribunal Act No.7 of 2001. They are set out as follows:-

"PART 1 - PRELIMINARY

1. Object

The objective of this Act is to provide for a system based on custom to resolve disputes about customary land.

2. Overview

(1) For the purposes of this Act, each island is divided into custom areas. Larger islands are divided into many custom areas. By way of contrast, very small islands may consist on only one custom area. Custom areas are subdivided into custom sub areas. The procedure for resolving disputes about customary land varies depending on whether the land is situated wholly or partly within a custom area or a custom sub-area.

(2) This Act covers the following main topics:-

(a) ...

(b) ...

(c) the appeal process for parties who are dissatisfied with decisions of land tribunals.

3. Interpretation

(1) In this Act, unless the contrary intention appears-

Land Tribunal means

(a) a single or joint village land tribunal; or

(b) a single or joint custom sub-area land tribunal; or

(c) a single or joint custom area land tribunal; or

(d) an island land tribunal.

10. Resolution of disputes

(1) If all the parties to a dispute accept the decision of a village land tribunal (see Part 6 for procedure for resolving disputes), the dispute is resolved and no further action needs to be taken under this Act by any of the parties.

(2) If any of the parties to a dispute do not accept the decision of a village land tribunal, that party may appeal under Part 3 or Part 4 (whichever applies) against the decision.

15. Resolution of disputes

(1) If all the parties to a dispute accept the decision of a custom sub-area land tribunal (see Part 6 for procedure for resolving disputes), the dispute is resolved and no further action needs to be taken under this Act by any of the parties.

(2) If any of the parties to a dispute do not accept the decision of a custom sub-area land tribunal, that party may appeal under Part 4 or Part 5 (whichever applies) against the decision.

20. Resolution of disputes

(1) If all the parties to a dispute accept the decision of a custom area land tribunal (see Part 6 for procedure for resolving disputes), the dispute is resolved and no further action needs to be taken under this Act by any of the parties.

(2) If any of the parties to a dispute do not accept the decision of a custom sub-area land tribunal, that party may appeal under Part 5 against the decision.

33. Decisions are final

Subject to:

(a) the Constitution; and

(b) the rights of appeal to, and rehearing by, other land tribunals provided or under this Act; and

(c) the rights of supervision by the Supreme Court under Section 39;

a decision of a land tribunal is final and binding on the parties and those claiming through them, and the decision is not to be challenged, appealed against, reviewed, quashed, set aside or called in question in any court on any ground.

34. Records of decisions

(1) The secretary of a land tribunal must record the tribunal’s decision in the form set out in Schedule 3, and on it being signed by the chairperson and secretary it constitutes an accurate record of the decision for all purposes.

(2) If the decision of a land tribunal is not appealed against or there is not re-hearing, the secretary of the tribunal must as soon as possible send the record of the decision to the Director. [Emphasis added]

(3) If the decision is appealed against or there is a rehearing, the secretary of the tribunal must as soon as possible send the record of the decision to the secretary of tribunal hearing the appeal or undertaking the re-hearing. [Emphasis added]

40. Responsibilities of Director

(1) The Director must:-

(a) ...

(b) ...

(c) ...

(d) preserve in an orderly and secure fashion the records of the decision of the land tribunals forwarded to the Director; and

(e) compile for each island a register of the decisions of land tribunals on that island and keep the registered up to date."

Section 8(1)(b) and (2)(b) of the Land Reforms Act [CAP.123] provide:

"8.(1) The Minister shall have general management and control over all land-

(a) ...

(b) not occupied by an alienator but where ownership is disputed;

(c) ...

(2) Where the Minister manages and controls land in accordance with subsection (1) he shall have the power to-

(a) ...

(b) conduct transactions in respect of the land including the granting of leases in the interests of and or on behalf of the custom owners.

(c) ..."

The Appellant, in essence, submits that:-

First, the North West Efate Area Land Tribunal had identified and declared on 29 December 2005 Philip Kalsuak as the custom owner of the land Lease Title 12/0512/022 on Lelepa Island. That decision was final and was binding on all parties pursuant to Section 33 of the Land Tribunal Act. There was no longer a dispute over the said land. The Appellant submits that Tuohy J was in error when he held that ownership of the land was in dispute so he could not exercise his powers under Section 8(1)(b) of the Land Reforms Act.

The Appellant further submits that, although, an appeal has been lodged by an unsuccessful party, that appeal does not constitute a stay of the execution of the judgment of the North West Efate Area Land Tribunal of 29 December 2005 in favour of Philip Kalsuak. The Appellant relied on the authority of Attorney General v. Pacoil Limited (1999) FJCA 42; Tori v. Morris (2001) SBHC 39; and the Annot Lyle (1886) 11 PD114. The rational of those cases is that a successful party is entitled to the fruits of the judgment and that he should not be deprived of them.

Having perused the provisions of the Land Tribunal Act No.7 of 2001 and considered the relevant provisions, we agree with the conclusion reached by Tuohy J in his judgment of 9 March 2006 that the effect of the pending appeal to the Island Land Tribunal was that ownership of the land remained in dispute.

Subsection (1) of ss.10, 15 and 20 of the Customary Land Tribunal Act provides clearly and specifically that if all parties to a dispute accept the decision of a lower level tribunal, the dispute is resolved.

Subsection (2) of ss. 10, 15 and 20 of the Act separately provides that any party who does not accept the decision may appeal to the next level.

We agree with Tuohy J that the logical effect of subsection (1) of ss, 10, 15 and 20 of the Act is that a dispute is not resolved if all parties do not accept the decision made at a lower level.

Section 33 of the Customary Land Tribunal contemplates this scenario. It provides that:-

"33. Decisions are final

Subject to:

(a) the Constitution; and

(b) the rights of appeal to, and rehearing by, other land tribunals provided for under this Act; and

(c) the rights of supervision by the Supreme Court under Section 39;

..."

It follows that if the decision is appealed against or there is a re-hearing, the secretary of the Tribunal must as soon as possible send the record of the decision to the secretary of the land tribunal hearing the appeal or undertaking the rehearing pursuant to Section 34(3) of the Act. This is a further confirmation of a circumstance of dispute between the parties.

However, if the decision of a land tribunal is not appealed against or there is no rehearing, the secretary of the tribunal must as soon as possible send the record of the decision to the Director in compliance with Section 34(2) of the Land Tribunal Act and the Director must preserve in an orderly and secure fashion the records of the decision of the land tribunals forwarded to him, and he must compile for each island a register of the decisions of land tribunals on that island and keep the register up to date in accordance with Section 40(1)(c) of the Act.

It is in the second scenario that the decision of a land tribunal is final and binding on the parties and those claiming through them, and the decision is not to be challenged, appealed against, reviewed, quashed, set aside or called in question in any Court on any ground as stated in Section 33 of the Act.

As pointed out by Tuohy J, the object of the Act is set out in Section 2 which is "to provide for a system based on custom to resolve disputes about customary land".

We agree with Tuohy J that Parliament specifically set up a multi-layered system where a party has the right to argue his case about the vitally important and sensitive issue of land ownership up to 5 separate times (inclusive of an Island Tribunal rehearing) as tribunals consisting of local chiefs and elders before the point of final resolution is reached. Subsection (1) of ss. 10, 15 and 20 are an integral part of a custom based system of dispute resolution based upon lengthy, even protracted, discussion and deliberation resulting, if possible, in a decision which takes its authority in part from its acceptance by the parties.

The Appellant also submits that although an appeal was filed against the judgment of the North West Efate Area Land Tribunal of 29 December 2005, that appeal cannot operate as a stay. The Appellant relies on the following passage from the judgment of the Court of Appeal in the case of Traverso v. Chief Kas Kolou, CAC 26 of 2003:-

"We observe that there could have been an issue in this case as to whether there was in fact a dispute about custom ownership at all so as to bring into play the ministerial power and authority. When there has been a determination by an Island Court followed by the filing of an appeal it should not be assumed that that creates the circumstances of a dispute."

The passage relied upon in the Court of Appeal judgment in the case of Traverso v. Chief Kas Kolou (CAC 23 of 2003) is an obiter dictum. That case was about the previous system for resolving customary land ownership where the jurisdiction to appeal the Island Court decision to the Supreme Court arose from the Island Courts Act [CAP.167]. The passage must be read and cited in its full context to understand the full meaning that whether there is a dispute or not is a matter for the Court and not for the Minister. It is the prerequisite which gives the Minister jurisdiction to act and that must always be subject to the supervision and control of the Court.

The principle of stay will have an application under the Customary Land Tribunal Act No.7 of 2001 only if a decision of a land tribunal has been accepted by all parties and there is no appeal or a re-hearing by an unsuccessful party has been exhausted.

Considering the peculiarity of the legislative scheme in the Customary land Tribunal Act, it is premature for the principle of stay to be adopted in such a unique legislative framework set out by Parliament in respect to the dispute resolution process of the customary land under the Customary Land Tribunal Act No.7 of 2001.

This ground of appeal is dismissed.

As to the third ground of appeal namely whether or not Kalsuak should be made a party in determining the preliminary point of law, does not alter the position.

In any event, he can still be a party in the substantive case. There is no prejudice to him in this interlocutory matter.

For the foregoing reasons, the appeal is dismissed Costs are awarded in favour of the First, Second and Third Respondents. The costs shall be agreed or determined.

DATED at PORT-VILA this 5th day of April 2007

BY THE COURT

Vincent LUNABEK CJ
J. Bruce ROBERTSON J
John MANSFIELD J
Oliver A. SAKSAK J
HAMLISON BULU J