Masaai Family v Lulu [2005] VUSC 124; Land Appeal Case 057 of 2004 (1 November 2005)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Land Appellate Jurisdiction)

Land Case No. 57 of 2004

IN THE MATTER OF: A LAND APPEAL FROM THE EFATE ISLAND COURT CONCERNING MALAORA LAND, MELE VILLAGE, EFATE

BETWEEN:

MASAAI FAMILY
First Appellants

AND:

LAKELO TAUA MANAWORA
Second Appellants

AND:

NAREWO KALTOLU LULU
First Respondents

AND:

FAMILY MARIKI LANGA NI VATE LAPA
Second Respondents

Coram: Justice P.I. Treston

Chief Peter Masongmapula - Assessor
Chief Kass Kolu - Assessor

Counsels: Mrs. Nari for First Appellants
Mr. Nakou for Second Appellants
Mr. Tari for First Respondents
Mr. Kilu for Second Respondents

Date of Hearing: 1 November 2005
Date of Decision: 1 November 2005

JUDGMENT ON APPEAL

DISPUTE

This case concerns a land dispute over land called 'Malaora' situated in the vicinity of Mele village on the island of Efate. There were 5 Claimants in the Island Court and all except Pierre Nikara took part in the appeal.

ISLAND COURT DECISION

The Island Court judgment was delivered on 2 April 2004 following on from a hearing which took place between 10 and 17 February 2004. The orders were as follows: -

1. The Sobuso family is the customary owner of the following land titles: 93, 771, 1890, 1891, 96, 372, 64, 1395, 62, Extension 62, 3784, 1812, 383, and part of title 122 which begins at the Mele Golf Club and extends as far as Vaatapesu, the area owned by the Langa family. This family has the right to develop or make negotiations on these areas or make any decisions, which they see fit.
   
2. The Mariki Langa Ni Vatelapa is the customary land owner of the following land titles: 66, 371, 97, 65, 95, 3745 and part of the title 122 which starts at the area called Vaatapesu, Elopo, Warakairiki, Warakailapa, Lakatawariki, to the nasara of the two villages called Tapusu and Tapusu-riki down to connect with title 371 and they have every right to develop or make negotiations or decisions on these areas as they see fit.
   
3. The other parts of title 122 is owned by the Sobuso family and this area begins at the boundary where the Mariki Langa Ni Vatelapa land ends, as declared above by the Court, and extends to Sobuso's village called Farea Safalapa and covers all areas and nasaras of the Farea Safalapa which are today, under the control of the SIP. They have every right to develop, negotiate or make decisions on these areas as they see fit.
   
4. The Court also understands that titles 164, situated near Mele village, is being used by many people to make gardens. Therefore the Court will not make any decision on this plot but the Court feels that this area should be left to use as it is today.
   
5. In compliance with Section 22 (1) (a) of the Island Courts Act, Cap. 167, the parties have 30 days to appeal if they are not satisfied with this decision.
   

GROUNDS OF APPEAL AND SUBMISSIONS

The Appellants filed their notices and grounds of appeal and all parties filed written submissions.

HEARING

At the hearing on 1 November 2005 it quickly became apparent that the major issue for determination was not only the merit of the cases of the Appellants and the Respondents but also the way that the Island Court had conducted itself during the hearing.

It became common ground between the parties that the Magistrate and Justices during the course of the hearing had had lunches with the First Appellants, the First Respondents and the Second Respondents in the absence of the other parties. Furthermore when the Court below had undertaken its duty under Order 18 paragraph 9 of the Island Courts Act [CAP. 167] it had visited the land in the company of individual parties in the absence of the other parties.

Order 18 paragraph 9 provides as follows: -

"In every case where the claim is in respect of land, the court shall visit the land before reaching a decision in the course."

It became clear to this Court and was accepted by all parties that the process undertaken by the Court below was in error and could readily give rise to allegations of bias against the Court below because no party should have contact with the Court during the course of a hearing in the absence of the other parties. That principle applies because justice should not only be done but must be seen to be done and should circumstances arise where, for example, lunch is to be taken by the members of the Court and by any or all of the parties at the same time and in the same area the members of the Court should separate themselves from the litigants to take their break. They should certainly never, as in this case, take lunch with one of the parties in the absence of the others and it would be imprudent for members of the Court to even be seen speaking to any of the parties in the absence of the other parties during such breaks. The Court should physically separate itself from the litigants.

In my view the same must apply to the Court visiting the land. The Court must never carry out such a visit in the company of only one of the parties. It should carry out its visit either alone or in the presence of all of the parties at the same time.

CONCLUSION

In this case the decision of the Court can never be seen to be independent and justice cannot be seen to have been done in the present circumstances. Although there are no specific allegations of bias, it is clear that the Court has acted so imprudently that its judgment must be said to be suspect and cannot stand.

As I have indicated to the parties, it is impossible for this Court on appeal to review all the evidence and to make a finding to who the true custom owners ought to be. That is particularly so because this Court has not had the advantage of seeing and hearing the witnesses give their evidence. Thus the Court cannot make findings of credibility. As I said, it is with some reluctance that I consider that the only appropriate course is to quash the judgment and remit the case back to the Island Court for hearing afresh by a totally differently constituted Court.

I know that there has been significant delay already in this matter and that the parties have incurred considerable costs but in the circumstances it is my view that the costs of this appeal should lie where they fall and I make no order for costs.

I thus quash the judgment of the Efate Island Court of 2 April 2004 and remit the case back to the Efate Island Court for rehearing by a differently constituted court which I trust will carefully note the comments which I have made.

Dated at Port Vila this 1st day of November 2005

BY THE COURT

P.I. Treston
Judge