Family Morris Bule v Family Ron Tematamtam [2006] VUSC 47; Land Appeal Case 052 of 2003 (19 June 2006)

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

LAND APPEAL CASE No.52 of 2003

In the matter of: Three Applications to join in Land Appeal Case No.52 of 2003 by:
Joseph Rauban
Amon wari
Joel Tamtam
as Interested Parties/Intended Appellants

BETWEEN:

FAMILY MORRIS BULE
Appellants

AND:

FAMILY RON TEMATAMTAM
Respondents

Mr Silas Hakwa for the Appellant
Mr. Daniel Yawha for the Respondent
Mr Willie Daniel for Joseph Rauban, Interested Party/Intended Appellant
Mr Felix Laumae for Amon Wari, Interested Party/Intended Appellant
Mr Saling Stephens for Joel Tamtam, Interested Party/Intended Appellant

JUDGMENT

These are three applications made by the following: Joseph Rauban, Amon Wari and Joel Tamtam to be joined as interested parties or intended appellants in land Appeal Case No.52 of 2003 of Banmatmat land on the Island Court of Pentecost, Vanuatu.

Joseph Rauban applies to be joined as an interested party to the appeal and filed sworn statements in support dated 21 September, 3 November and 5 December 2005. He said he counterclaimed the land called "LONSING" which is within the boundary of Banmatmat land.

Amon Wari applied to be joined as a party to the appeal in Land Appeal Case No.52 of 2003 and filed sworn statements in support dated 20 September and 28 October 2005. He said he counterclaimed the land called "OME" which is within the boundaries of Banmatmat land.

Joel Tamtam via Taback applies to be joined as a party on 20 September. Taback’s application of 20 September 2005 was dismissed. Joel needed a lawyer. In February 2006, Mr Saling Stephens of counsel acted on behalf of Mr Joel Tamtam. He filed an application for Mr Joel Tamtam to be joined as a party in Land Appeal Case No.52 of 2003 on 10 March 2006 with sworn statements in support dated 14 March 2006. Family Joel Tamtam counterclaimed the land called "Remlili" which is within the boundaries of Banmatmat land.

The Respondent in the Land Case No.52 of 2003 did not file a response to the three (3) applications and did not take active part in the hearing of the three applications. The Respondent seeks however to make submissions. The Court refuses them to make submissions. But they declare their position to be in favour of those applications for the Applicants be joined in Land Appeal Case No.52 of 2003 as interested parties. The Court records the Respondent’s position in relation to the three (3) applications.

The Applicants file a response to each and every application referred to above on 14 October 2005. They also filed sworn statements in support of their response.

Evidence were called by each and all applicants and they are respectively cross-examined on the contents of their sworn statements. There was no cross-examination of Stevenson Bule on his sworn statements of 14 October 2005 in support of the Appellant’s response. The findings of the Court are set out as follows:-

The Appellants are the original land Claimants in the Pentecost Island Court (PIC) in Land Case No.2 of 1997. There is no dispute that each and all interested parties, namely: Amon Wari, Joseph Rauban and Joel Tamtam were parties in the original claim of Banmatmat land in the P. I.C. in Land Case No.2 of 1997. It is a fact that the matter was set for conference hearing before P.I.C. on 14 -15 October 2005. The three (3) interested parties took part in the said conference hearing.

The P.I.C. set a conference hearing to consider the issue of the boundary of Banmatmat land. It is a fact that a consent was made by all parties including the Appellants/original Claimants that the boundary of Banmatmat covers different lands: Lonsing, Ome, Remlili. However, how the consent was said to be made is not set out in the sworn statements of all parties including the Applicants.

It is also a fact that the P.I.C. made directions to the effect that the subsequent hearing of 16 October 2003 was to substantially deal with Banmatmat between the original Claimants/Family Morris Bule and the Respondent/Family Ron Tema Tamtam. The boundary of Banmatmat was then reduced to the boundary as shown in the map submitted by the Respondent before P.I.C. which did not cover the following lands: "Lonsing", "Ome", and ‘Remlili".

The interested parties: Joseph Rauban, Amon Wari and Joel Tamtam as a result of a ruling of P.I.C., did not take part in the hearing of Banmatmat land between the original Claimants, family Morris Bule and the counterclaimant, family Rom Tema Tamtam. The respective claims of the Interested Parties were withdrawn.

The P.I.C. delivered its judgment on 21 October 2003 and the written reasons of the judgment were provided on 01 December 2003.

The Appellants, Family Morris Bule, filed their Notice of Appeal on 30 December 2003 within 30 days statutory period. The Respondent filed a response. There was no cross-appeal by the Respondent. An application for stay of the Judgment of the P.I.C. was made on 19 January 2004 and granted by the Court on 19 August 2004.

On 6 October 2004, the Appellants filed an application to introduce new evidence. On 23 February 2005, the Court granted the Application of the Appellants to introduce new evidence by way of hearing de novo.

It is a fact that as a consequence of the ruling of the Supreme Court of 23 February 2005, the lands called "Lonsing", "Ome" and "Remlili" which were not part of the land determined by the P.I.C., in Land Case No.2 of 1997, will be considered by the Supreme Court by way of hearing de novo because one of the grounds of appeal of the Appellants, is the process of acquiring the consent of the Appellants agreeing to rely on the map produced by the Respondent (then First Counterclaimant). The Appellants’ consent on the boundary was challenged in the Supreme Court on the appeal and the Appellants intend to rely on their original map filed before the P.I.C. in Land Case No.2 of 1997.

On the basis of the facts before the Court and the way the P.I.C. proceeded to hear the case without the 3 Interested Parties, the only logical conclusion that can be drawn is that the claims of the counterclaims: Amon Wari, Joseph Rauban and Joel Tamtam were withdrawn by the P.I.C. after the P.I.C. was informed that the parties including the Appellants consented to the effect that the boundary of Banmatmat land covered also the boundaries of different lands (Lonsing, Ome and Remlili). The judgment of P.I.C. recorded that there was a ruling. There were no details nor specification about the said ruling.

It is also a fact that Amon Wari knows about the appeal filed by the Appellants. He filed a sworn statement in support of the Respondents’ response well before he filed his application to be joined as a party to this appeal.

On the Court records and documents, the interested parties are not parties to the Land Appeal Case No.52 of 2003. However, it is also a fact that they were initially parties before the P.I.C. in 1997 and took part in the land conference hearing on 14-15 October 2003, as a result of which, their claims were withdrawn.

It is further a fact that the Appellants wish to put back into question the consent of all parties, namely the Interested Parties themselves, the Respondents and the Appellants before the P.I.C. in 2003.

On 15 October 2003, the claims of the counterclaimants were withdrawn by the P.I.C. after the P.I.C. was informed by the parties that they consented to the boundaries of Banmatmat land based on the map submitted by the Respondent in this appeal, which did not cover: Lonsing, Ome and Remlili lands.

Applying the law to the facts, it is clear that by law, the three (3) Interested Parties, namely: Joseph Rauban, Amon Wari and Joel Tamtam cannot be joined as parties to the Land Appeal Case in the Supreme Court. They are not parties to the Land Appeal Case No.52 of 2003. Section 22 of the Island Court Act is clear to that effect. This section must be interpreted in a restricted sense in the light of the judgments of the Court of Appeal of Vanuatu on that point.

Are the Appellants barred in law or estopped from seeking to reinstate their original map used in P.I.C. Land Case No.02 0f 1997, in their present appeal by way of hearing de novo in this Court as an issue already decided upon by the P.I.C. by consent of all parties on the basis of res judicata?

The answer to that question in law must be in the negative for the following reasons:-

First, the Appellants, Family Morris Bule, is entitled to question the lawfulness of the consent as to the boundaries of Banmatmat land which is reflected in one of the grounds of the appeal in Land Appeal Case Nol.52 of 2003.

Second, the issue on the boundaries of Banmatmat land cannot be said to be res judicata as, not only the consent of the parties including that of the Appellant (Family Morris Bule) was called back into question but also the P.I.C. withdrew the land counter-claims of the respective interested parties: Family Joseph Rauban, Amon Wari and Joel Tamtam. The P.I.C. heard the land claim based on the map of Family Ron Tema Tamtam between the current Appellants (Family Morris Bule) and the Respondents (Family Ron Tema Tamtam). There is no final judicial adjucation on the issue of the boundaries of Banmatmat.

In the present case, because the three (3) Interested Parties were also involved in the consent processes before the P.I.C., it would be impossible to challenge the validity of the consent, let alone the consent of the Appellants without giving an opportunity to the Interested Parties to be heard because at that point in time they were still parties to the land claim before the P.I.C. They were directly involved in the consent processes about the boundaries of Banmatmat land and other lands.

On the facts as found by the Court, the case of the Interested Parties were withdrawn by the P.I.C. There is no issue as to res judicata for consideration.

The Appellants are interested parties before the Supreme Court in Land Appeal Case No.52 of 2003. Their interest is self explanatory from the Judgment of P.I.C. of 1 December 2003. Now that the Appellants re-open that part of the claim by seeking to rely on their original map of the claim of Banmatmat boundary, justice and common sense require that the three (3) Applicants must be given an opportunity to be heard as the hearing de novo granted to the Appellants by the Supreme Court, has the effect of considering all the lands claimed by the Appellants as original Claimants as set out in the original map of the Appellants including "Lonsing", "Ome" and "Remlili" lands claimed by the Interested Parties and which are not determined by the P.I.C.

As a matter of conclusion, there are two (2) practical ways to resolve the matters between the Appellants, Respondents and the three (3) Interested Parties:-

The first option is for the Supreme Court to continue with the hearing of the Land Appeal Case No.52 of 2003 between the Appellants and the Respondents as determined by the P.I.C. without the Interested Parties.

If the first option is adopted, then, the de novo hearing in the Supreme Court will be stayed and will constitute new sets of land proceedings to be dealt with by the Supreme Court on de novo hearing basis or they will be sent back before the P.I.C. for hearing between the Appellants, the Respondents and the three Interested Parties within the relevant custom lands as claimed.

The second solution is to set aside the Judgment of the P.I.C. of 1 December 2003, to allow the appeal on a technical point and in the interest of justice and common sense, send the matter back before the P.I.C. differently composed.

Considering the overall circumstances in the proceedings, the second solution is to be applied in the present case and I so rule to that effect.

The Court makes the following ORDERS:

1. THAT, the following Interested Parties: Amon Wari, Joseph Rauban and Joel Tamtam cannot be joined as parties in the Land Appeal Case No.52 of 2003. The orders sought in their respective applications to that effect are refused.
   
2. THAT, the Appellants cannot continue with their Appeal by using their original map of Banmatmat land lodged in the P.I.C. which covers also the following lands: "Lonsing", "Ome" and "Remlili" claimed respectively by Family Amon Wari, Family Joseph Rauban and Family Joel Tamtam without them. Justice requires that Family Amon Wari, Family Joseph Rauban and Family Joel Tamtam must be heard and make representation to defend their interest over the said lands.
   
3. THAT, to overcome the difficulty as encountered in this case as set out in Order 2 above, justice and common sense require that the appeal be allowed, the Judgment of the Pentecost Island Court dated 1 December 2003 be and is hereby set aside and the Land Case No.02 of 1997 is reverted back to the Pentecost Island Court differently composed.
   
4. THAT, the Pentecost Island Court must hear the Land Case No.02 of 1997 between the following parties: Family Morris Bule, the original claimants, Family Ron Tema Tamtam, the first counterclaimants, Family Amon Wari as the second counterclaimants, Family Joseph Rauban as the third counterclaimants, Family Joel Tamtam as the fourth counterclaimants.
   
5. THAT, if Family Amon Wari, Family Joseph Rauban and Family Joel Tamtam have filed separated land cases claiming respectively for Lonsing, Ome and Remlili, the Pentecost Island Court Clerk is directed to combine these cases with Land Case No.02 of 1997, so that the Pentecost Island Court hears them jointly.
   
6. THAT, the following parties in land Case No.02 of 1997: Family Morris Bule,, Family Ron Tema Tamtam, Family Amon Wari, Family Joseph Rauban, Family Joel Tamtam are informed and notified of a possible joinder of Land Case No.02 of 1997 and any other registered land case claiming custom ownership over "LONSING", "OME" and "REMLILI" lands.
   
7. There will be no need for the Clerk of Pentecost Island Court to issue further Public Notice. The Clerk is directed to re-list the Land Case No.2 of 1997 as soon as possible.
   
8. THAT, parties are given opportunity to make submissions as to costs.
   

DATED at Port-Vila this 19th day of June 2006

BY THE COURT

Vincent LUNABEK

Chief Justice