Bule v Tamtam [2011] VUCA 16; Civil Appeal 11 of 2011 (11 July 2011)

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

CIVIL APPEAL CASE No.11 OF 2011

IN THE MATTER OF: THE ISLAND COURTS ACT [CAP.167], as amended (hereinafter referred to as "the Act")

BETWEEN:

STEVENSON BULE, acting as the duly authorized representative of Family Morris Bule, care of Pangi Village, South Pentecost, Republic of Vanuatu
Appellant

AND:

RON TAMTAM
First Respondent

AND:

AMON WARI
Second Respondent

AND:

JOSEPH RAUBAN
Third Respondent

AND:

JOEL TAMTAM
Fourth Respondent

AND:

ZAACHEUS BILA
Fifth Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice J. von Doussa
Hon. Justice O. Saksak
Hon. Justice D. Fatiaki
Hon. Justice P. Heath

Counsel: Mr Silas Hakwa for the Appellant
Mr Daniel Yawha for the First, Second and Fourth Respondents
Mr Willie Kalo Daniel for the Third Respondent
Mr Jack Kilu for the Fifth Respondent
Mr Colin Leo as interested party

Date of hearing: 11th July 2011
Date of judgment: 11th July 2011

JUDGMENT

1. This matter was listed for hearing in the July 2011 Court of Appeal Session. When the matter was called on for mention the Court was informed by counsel that the Respondent consented to the appeal being allowed, and minutes of a proposed Consent Order were handed up by counsel for the appellant.
   
2. The appeal sought to overturn an Order made by a single judge of the Supreme Court on 27 April 2011 which dismissed the appellant's appeal in Land Case No.02 of 2009. The effect of the Order for dismissal was to finally determine a claim for custom ownership of land.
   
3. The Court of Appeal was informed that the Respondents consented to the appeal being allowed on the basis a single judge sitting as the Supreme Court does not have jurisdiction to finally determine title to custom land. Jurisdiction to do so, as this Court has previously held, can be exercised only by a Supreme Court judge sitting with 2 assessors. In these circumstances, it is appropriate that the appeal be allowed and the Order for dismissal made on 27 April 2011 set aside. We observe that, despite the attendance of counsel for the respondents at the Supreme Court hearing, the Judge was not alerted to this issue.
   
4. In our opinion it is also appropriate that each party should pay their own respective costs of the appeal, as counsel have agreed.
   
5. The proposed minutes of order made no provision for costs of the hearing before the Supreme Court on 27 April 2011. In our opinion the Orders allowing the appeal by consent should make provision for the Supreme Court to deal with that issue. The primary Judge made the Order for dismissal because counsel for the appellant was not present at Court, notwithstanding that he had received adequate notice of the hearing date. The respondents were present and duly represented by counsel. The absence of counsel for the appellant caused a waste of their time. In the ordinary course, the judge conducting the hearing would make an order for costs in favour of the respondents.
   
6. As this appeal is to be allowed by consent, the matter must be returned to the Supreme Court. In our opinion the Order of this Court should specifically recognize that the Supreme Court is empowered to deal with the issue of costs wasted on 27 April 2011.
   
7. For these reasons, the appeal in this Court will be disposed off by the following formal Orders:
   

1. The appeal is allowed.

2. The Order which the Supreme Court made on 27 April 2011 dismissing the Appellant's appeal in Land Appeal Case No.02 of 2009 is set aside.

3. The matter is returned to the Supreme Court to deal with the issue of costs wasted on 27 April 2011, and generally to dispose of the appeal.

4. Each party shall bear their respective costs of the appeal.

DATED at Port-Vila, this 11th day of July 2011

BY THE COURT

Hon. V. LUNABEK CJ

Hon. J. von Doussa J

Hon. O. A. Saksak J

Hon. D. Fatiaki J

Hon. Paul Heath J