Family Molivakarua v Family Worahese [2011] VUCA 9; Civil Appeal 28 of 2010 (8 April 2011)

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

CIVIL APPEAL CASE No.28 OF 2010

BETWEEN:

FAMILY MOLIVAKARUA
Appellant

AND:

FAMILY WORAHESE
Respondent

Coram: Hon. Chief Justice Lunabek
Hon. Justice John Mansfield
Hon. Justice Raynor Asher
Hon. Justice Daniel Fatiaki
Hon. Justice Robert Spear

Counsel: Mr S. Stephens the Appellant
Mr E. Nalyal for the Respondent

Date of hearing: 30th March 2011
Date of judgment: 08th April 2011

JUDGMENT OF THE COURT

1. This is an appeal filed against the decision of the Supreme Court sitting in Luganville, Santo delivered on 26 October 2010. That decision was the determination of an appeal from the decision of Santo/Malo Island Court of 30 January 1996 concerning Asavakasa land on Malo Island.
   
2. In the Island Court of Santo/Malo, four (4) parties disputed ownership of land known as ASAVAKASA on Malo Island. The Island Court and the four disputants referred to the disputed land as ASAVAKASA. But it is apparent that ASAVAKASA land comprises other custom lands with their own custom names. One piece of such land is called ASAVAKASA.
   
3. In the Santo/Malo Island Court, ownership of ASAVAKASA was declared to Family Molisangavulu, the first Claimant in the Island Court and First Respondent in the Notice of Appeal filed in the Supreme Court. However, Family Molisangavulu (First Respondent) and Naklan Yves (Third Respondent) in the appeal before the Supreme Court are not parties nor referred to as Respondents in this appeal.
   
4. The appeal before the Supreme Court was brought under section 22(1) of the Island Court Act [CAP.167] ("the Act"). Such an appeal is by way of rehearing and not a review as set out clearly by the Court in Simeon Tula and Family v. Jeffrey Weul and others [2010] VUCA (Tula).
   
5. Section 24(4) of the Act provides that there is no appeal to the Court of Appeal from the judgment of the Supreme Court on an appeal under section 22(1)(a). This appeal is, therefore, limited only to the question of jurisdiction. That principle is established clearly in Matarave v. Talivo [2010] VUCA 3 (Matarave) and applied in the Tula case (above).
   
6. Initially three (3) grounds of appeal were advanced in support of the appeal. During our discussions with Counsel for the appellant, Mr Saling Stephens abandoned the third ground in the light of Matarave and Tula decisions.
   
7. Grounds 1 and 2 are the remaining grounds for consideration and they relate to jurisdiction. It is necessary to consider each of them and, if either is made out, to then determine whether that would lead to the conclusion that the Supreme Court did not properly exercise its jurisdiction.
   
8. Ground 1 of the appeal relates to the appointment of Chief Moli Vira Jingo as an assessor to sit with the presiding Judge in the Supreme Court despite the Appellant's objection to the appointment. In the Supreme Court, the Appellant objected to Chief Moli Jingo being appointed an assessor on the basis that he was the Chairman of another Land Tribunal concerning land on Malo Island. The Appellant was a party to that dispute and the Tribunal found against the Second Respondent. That decision is being reviewed on appeal in Civil Case No.71 of 2010 in the Supreme Court and is still to be heard. In essence, the Appellant submits it would not be appropriate for Chief Moli Vira Jingo to sit in respect of this matter when he has already sat on another matter involving the Appellant and found against them.
   
9. The presiding Judge declined the objection of the Appellant. His Lordship was right when he declined the objection. We agree with his reasoning. The mere fact that one of the assessors sat on a land tribunal which made a finding contrary to the interest of the Appellant on that claim does not of itself indicate that he is an inappropriate person to sit in the present case. If every person sitting in a judicial capacity had to be disqualified for making a finding against a party whenever a party appeared before a judicial body in the future then the system of justice of this country would grind to a halt. We therefore reject the first ground of the appeal.
   
10. In the second ground of appeal, the Appellant re-agitates a complaint made in the Supreme Court which was rejected by the presiding Judge. That contention was that the trial Judge erred in law by entertaining and dwelling on the ground that the three (3) Justices were not knowledgeable in the custom of the jurisdiction of the Santo/Malo Island Court when it was not raised as a ground of the appeal in the Respondent's Memorandum of Appeal dated 29th March 1996.
    
11. His Lordship considered that the main ground of the appeal was that the Island Court was not properly constituted to hear the land claim before it. His Lordship relied on section 3(1) of the Act which says:
    

"3. Constitution of Island Courts

(1) The President of the Republic of Vanuatu acting in accordance with the advice of the Judicial Service commission shall appoint not less than three justices knowledgeable in custom for each Island Court at least one of whom shall be a custom Chief residing within the territorial jurisdiction of the Court."

12. His Lordship noted also in his Judgment (at paragraph 7) that although section 3(1) of the Act was not referred to in the Memorandum it made it plain that the appeal concerned the Island Court's alleged misunderstanding of Malo custom. He also noted that the submissions of the Respondent filed on 25th July 2008 specifically referred to the issue under section 3(1).
    
13. His Lordship, then, posed this question: Were any of the justices "knowledgeable in custom" to the extent required by Section 3(1)? He went on to observe that there was no evidence that they were "knowledgeable in custom" for the Island of Malo which is where the land in question is situated.
    
14. We are of the view that His Lordship misread section 3(1) of the Act and wrongly applied it in the appeal before the Supreme Court.
    
15. Island Courts are established by warrant as set out in section 1(1) of the Act. The warrant of an Island Court defines the jurisdiction as well as the extent and limits within which such jurisdiction may be exercised. Under section 6, every Island Court has jurisdiction to the extent set forth in its warrant and over causes and matters in which all the parties are resident or being within the territorial jurisdiction of the Court. Section 8 of the Act has subsequently been amended. It is to be read for this appeal as if it has never been amended because the land case in question was pending in the Island Court of Santo/Malo before the coming into force of the Customary Land Tribunal Act [CAP.271] which put an end to the jurisdiction of the Island Courts to deal with custom land disputes. Civil proceedings relating to land are still taken in the Island Court within the territorial jurisdiction of which the land is situated.
    
16. We return to section 3(1) of the Act. It deals with the appointment by the President of the Republic of three or more justices knowledgeable in the custom of the territorial jurisdiction of the Island Court and further it is a requirement that one or more justices shall be a custom chief residing within the territorial jurisdiction of that Court. It is not a requirement under section 3(1) of the Act for an Island Court Justice to "have knowledge in custom" of a particular area within the territorial jurisdiction of the Island Court, that is of a particular part of the Island Court area. There can be many sub-areas of custom within an Island Court area, and it would be quite impractical to have to find three knowledgeable justices for each of them. Section 3(2) means what it says. The three justices must be knowledgeable in custom for the Island Court area, and that is sufficient. If the particular sub-area is not the area that they are from, then it can be expected that they will take the necessary steps to gain familiarity of the area that is not their home area before the hearing.
    
17. It is also necessary to clarify that the constitution of an Island Court is a separate matter. An Island Court shall be properly constituted when three justices nominated by the Clerk are sitting. (s.3(4) of the Act).
    
18. There was no material evidence provided which challenged the composition of the Santo/Malo Island Court deciding ownership of the custom land Asavakasa which is now subject to this appeal.
    
19. It is further necessary to note that if the skills and knowledge in custom of an Island Court justice becomes an issue, they are matters to be addressed by the Judicial Service Commission and by the President of the Republic pursuant to s.3(1) of the Act. Ultimately, it is for the President to make appointments to the Island Court.
    
20. We finally note that the complaint before the Supreme Court in the land appeal case which is now before the Court of Appeal. It was, among other matters, a complaint that the Island Court erred in its findings of the applicable custom and so its application in the case was not in accord with the custom of Malo or the area of Malo in which the disputed land is situated. These complainants must be dealt with by the Supreme Court under s.22 of the Act. His Lordship had the power to remedy the complaints by rehearing the disputed land case under section 22(3) of the Act (see Tula decision referred to above). By misreading s.3(1) of the Act as he did, the judge fell into error. We accept, therefore, that the Supreme Court did not properly exercise its jurisdiction in this respect.
    
21. We are satisfied that the complaints raised in the Memorandum of Appeal dated 29th March 1996 do not affect the constitution of the Santo/Malo Island Court in January 1996 when deciding over Asavakasa land.
    
22. As no right of appeal exists, the application for leave to appeal should be refused. However, since the Supreme Court in this instance fell into error in misreading s.3(1) of the Act, a declaration will issue as to the validity of the decision of the Supreme Court dated 26th October 2011.
    
23. The formal orders of the Court are:
    
    1. Application for leave to appeal is dismissed.
       
    2. Declaration that the decision of the Supreme Court in Land Appeal Case No.06 of 1996 is void and of no effect.
       
    3. Direction that Land Appeal Case No.07 of 1996 be heard afresh by the Supreme Court.
       
    4. The Appellant is entitled to his costs in the Court of Appeal and such costs be agreed or taxed.
       
    5. The costs of the parties in the proceedings in the Supreme Court shall be decided by the Supreme Court on the further hearing of Land Appeal Case No.06 of 1996.
       

DATED at Port-Vila, this 8th day of April 2011

BY THE COURT

Hon. Vincent Lunabek CJ

Hon. John Mansfield J

Hon. Raynor Asher J

Hon. Daniel Fatiaki J

Hon. Robert Spear J