Family Rongo v Lap [2005] VUSC 118; CC 013 2005 (18 October 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 13 of 2005

BETWEEN:

FAMILY RONGO
First Claimant

AND:

FAMILY MOLIRANI
Second Claimant

AND:

JOSEPH LAP, KELEP SERY, TOM RASU,
KAORY LIVOHOLO, SALE RANI
First Defendants

AND:

SOLOMON MELELIVU & HALILI VUTINASUPE
Second Defendants

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Counsel: Mr Richard Kalses for the Claimants
Parties: All of the First Defendants in person unrepresented
All of the Second Defendants in persons unrepresented.

Date of Hearing: 8th August 2005
Date of Judgment: 18th October 2005

JUDGMENT

Introduction

This action is brought by Family Rongo and Family Molirani under section 39 of the Customary Lands Tribunal Act No. 7 of 2001 (the Act).

Section 39(2) of the Act

The relevant provision is section 39(2) which states –

“If a land tribunal fails to follow any of the procedures under this Act, a party to the dispute may apply to the Supreme Court for an order:

(a) to discontinue the proceedings before the tribunal or to cancel its decision; and

(b) to have the dispute determined or re-determined by a differently constituted land tribunal.”

The Facts

It happened on 30^th March 2005 at the Chief’s nakamal or meeting house in Luganville. The First Defendants called the parties to the case for a briefing. It transpired that the Second Defendants also were aware of this meeting and were present. The First Defendants were to brief the parties about their appeal. However it transpired that the appeal was “thrown” out and fresh proceedings held when the First Defendants allowed the Second Defendants to be heard. The Second Defendants were not parties to the appeal as they had withdrawn from the proceedings in the Village Land Tribunal in the first place. The Village Land Tribunal of South Santo sat on 14^th July 2003. The Second Defendants were present at the sitting but they specially withdrew as parties. The Tribunal proceeded without them and decided in favour of Avo Varilena, Maile Varisi and Vari Muramura. Family Rongo and Family Molirani were dissatisfied with that decision and appealed to the Area Land Tribunal. This is the appeal that was brought before the First Defendants as members of the Supenatuitano Council of the Island Land Tribunal.

The First and Second Claimants now challenge the actions of the First and Second Defendants and seek the Courts intervention under section 39 of the Act.

Burden and Standard of Proof

The Claimants have the burden of proof on the balance of probabilities.

Claimants Evidence

The Claimants filed sworn statements from Chief Atevari, Torsen Taumaute, Timothy Bani and Chief Levus Tamata who confirmed their sworn statements under oath and were available for cross-examined. However the Defendants being unrepresented did not ask any questions.

Defendants’ Evidence

The Defendants produced oral evidence from Joseph Lap, Kelep Seru, Solomon Melelivu and Joe Halili and were cross-examined by Mr Kalses.

Written Submissions

At the end of the evidence Counsel for the Claimants requested 14 days to file and serve written submissions. A further 14 days were granted to the First and Second Defendants to file and serve their written submissions in response. The Claimants filed their written submissions on 26^th August 2005. The Defendants filed their submissions on 8^th September. The First Defendants as at 8^th October have not filed any written submissions.

Mr Kalses has made a very helpful summary of the facts and evidence both by the Claimants and the Defendants and there is little need to restate them. It suffices to say that the Court accepts those summary of evidence.

Findings:-

The Issues

1. Does this Court have powers to supervise customary land tribunals?
   

The answer is in the affirmative. Section 39 of the Act is the empowering provision.

2. Are Sections 7, 8 and 10 of the Act relevant?
   

The answer is in the affirmative.

Section 7(1)(a) states –

“(1) If a person or group of persons:

(a) is a party to a dispute and the ownership or boundaries of customary land; and

(b) wants the dispute dealt with under this Act; the person or group must give notice of the dispute in accordance with subsections (2) and (3).

(2) The notice must be given:-

(a) if the land is situated wholly within the boundaries of a village – to the principal chief of that village; or

(b) if the land is situated within the boundaries of more that one village – to the principal chief of each of those villages.

(3) The notice must:-

(a) be given orally or in writing in Bislama, French, English or another language if the person or group giving the notice; and

(b) specify clearly the land which is in dispute; and

(c) contain the names of the parties to the dispute.”

Section 8(1) states-

“If the principal chief of a village receives a notice of a dispute about customary land under paragraph 7(2)(a), the principal chief must, within 21 days after receiving notice establish the tribunal to determine the dispute.”

Section 10(1) states-

“(1) If all the parties to a dispute accept the decision of a village land tribunal, 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 tribunal that party may appeal under part 3 or part 4 against the decision.”

The evidence of Chief Atevari is that he had passed on the Claimants’ appeal to the First Defendants within 21 days as required by section 8(1).

The evidence of Chief Tom Rasu, secretary to the First Defendants confirmed he sent out notices calling for a briefing. He does not say in his statement if the matter or cause was an appeal. But the Court accepts the evidence of Chief Atevari that it was an appeal.

The evidence by Torsen Taumaute is confirmed by the evidence of Timothy Bani that the Second Defendants withdrew from being parties and therefore were never parties at the Village Land Tribunal, the Area Land Tribunal. The Court accepts those evidence. It follows therefore that they were never parties to the appeal to the Island Land Tribunal.

3. Whether the Island Tribunal should hear the other Party who withdrew their claims at the Village Land Tribunal?
   

The answer is in the negative.

The Island Land Tribunal should not have allowed the Second Defendants to be heard on 30^th March 2005 as they were not parties to the appeal. When the First Defendant heard fresh evidence from the Second Defendants they had not done so according to the procedures in the Act.

The Court accepts Mr Kalses submissions that the Civil Appeal Case No. 26 of 2004 Kalran Loparu, Kalkot Kaltabang & Others v. Thomas Sope & Others is applicable and binding on the Second Defendants.

Conclusion

The Court is satisfied on the evidence by the Claimants that the First Defendants had failed to follow proper legal procedures when they allowed the Second Defendants to be heard in their meeting of 30^th March 2005.

Declaration and Orders

I therefore declare that the decision of the First Defendants taken on 30^th March 2005 is a nullity and therefore void and of no legal effect.

I further Order that –

(1) The First Defendants be required to deal with the Claimants’ appeal within 21 days from the date of this Judgment, however the Tribunal must be differently constituted.

(2) Any appeal fees not paid by the Claimants must be paid forthwith.

(3) The Defendants be required to pay the Claimants costs of and incidental to this action to be agreed.

DATED at Luganville this 18^th day of October, 2005.

BY THE COURT

OLIVER A. SAKSAK

Judge