Solomon v Turquoise Ltd [2007] VUSC 9; Civil Case 163 of 2006 (9 March 2007)

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

Civil Case No.163 of 2006

BETWEEN:

ALBERT SOLOMON of Lelepa Island, Efate
Claimant

AND:

TURQUOISE LIMITED
First Defendant

AND:

THE MINISTER OF LANDS AND NATURAL RESOURCES
Second Defendant

AND:

DIRECTOR OF LAND RECORDS
Third Defendant

Coram: Justice C. N. Tuohy

Dates of Hearing: 2 March 2007
Date of Judgement: 9 March 2007

Council: Mr. Yawha for Claimant
Mr. Sugden for First Defendant
Mr. Ngwele for Second and Third Defendants

RESERVED JUDGMENT

Background

1. In this proceeding, the Claimant and the First Defendant assert conflicting claims to occupy and use certain land on Lelepa Island. The First Defendant’s claim is founded on its rights as registered lessee of the land.

2. The lease was granted to the First Defendant by the Minister of Lands pursuant to the power given to him by s. 8 (2) (b) of the Land Reform Act to grant leases on behalf of the custom owners of land which he manages and controls pursuant to s. 8 (1). That includes land "where ownership is disputed" (s. 8 (1) (b)) and it was on that basis that the Minister assumed the power to grant this lease.

3. If ownership of the land was not disputed at the time the Minister granted the lease, then he had no power to grant it. The parties accept that if that was so, registration of the lease would have been obtained by mistake and would have to be cancelled (see s. 100 (1) Land Leases Act) and the lease itself declared a nullity.

4. Because this issue is potentially decisive of the whole proceeding, the court made an order pursuant to Rule 12.4 for the trial of the preliminary issue set out below:

"At the time the Minister granted the lease to the First Defendant pursuant to the power in s. 8 (2) (b) of the Land Reform Act, was the ownership of the land disputed in terms of s. 8 (1) (b)?"

Facts

5. These are not in dispute and can be shortly stated by way of a chronology.

• In April 2004, the West Efate Area Lelema Joint Customary Land Tribunal declared Nareo Kalsuak and Kalsau Naparo the custom owners of the land.
• On a later date unknown in 2004, two of the unsuccessful parties before the Lelema Tribunal, Jimmy Marango and John Kaloroa on behalf of Family Leisongi Leivele, appealed against the Lelema Tribunal decision to the North West Efate Area Customary Land Tribunal.
• On 18 October 2005, the then Minister of Lands, Willie Jimmy Tapangararua, issue a registered negotiator’s certificate for the land to the Claimant. The custom owners named in the certificate were Nareo Kalsuak and Kalsau Naparo.
• On 23 November 2005, the Minister of Lands, Maxime Korman Carlot, issued a registered negotiator’s certificate for the land to the First Defendant. The custom owners were named as Chief Jack Tuqulumau and three others.
• On 29 December 2005, the North West Efate Area Land Tribunal issued its decision on the appeal. The decision declared Philip Kalsuak to be the custom owner of the land.
• In early 2006, John Kaloroa filed a further appeal to the Efate Island Land Tribunal which has not yet been heard.
• On 18 April 2006, the Minister granted the lease of the land to the First Defendant. It was registered on 20 April 2006.
  

Submissions

6. Mr. Yawha, for the Claimant, submitted that at the time the lease was granted, the ownership of the land was no longer disputed because the North West Efate Area Tribunal had made a binding decision as to the custom ownership. He submitted that the filing of an appeal against that decision did not stay or suspend the effect of the Tribunal’s decision, and did not create the circumstances of a dispute.

7. He cited in support a passage from the judgment of the Court of Appeal in Traverso –v- Chief Kas Kolou (CAC 26 of 2003), a case like this one where a lease had been signed by the Minister pursuant to s. 8 when a determination of custom ownership had been made by an Island Court but was under appeal. The Court stated (at p.3):

"We observe that there could have been an issue in this case as to whether there was in fact a dispute about custom ownership at all so as to bring into play the ministerial power and authority. When there has been a determination by an Island Court followed by the filing of an appeal it should not be assumed that that creates the circumstances of dispute".

8. He also relied upon s.33 of the Customary Land Tribunal Act No. 7 of 2001 which states:

"33. Decisions are final Subject to:

(a) the Constitution; and

(b) the rights of appeal to, and rehearing by, other land tribunals provided for under this Act; and

(c) the rights of supervision by the Supreme Court under section 39;

a decision of a land tribunal is final and binding on the parties and those claiming through them, and the decision is not to be challenged, appealed against, reviewed, quashed, set aside or called in question in any court on any ground"

9. Mr. Sugden submitted that the effect of the pending appeal to the Island Tribunal was that ownership of the land remained in dispute. His argument was based upon the scheme and content of the Customary Land Tribunal Act.

10. He relied in particular on the identical provisions of ss. 10, 15 and 20 of the Act which relate to decisions at each level of the customary land tribunal system except the last level, the Island Tribunal. Those sections all provide as follows:

(1) If all the parties to a dispute accept the decision of (a relevant lower level) tribunal (see Part 6 for procedure for resolving disputes), 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 relevant lower level) tribunal that party may appeal under Part (relating to next level tribunal) against the decision.

11. Mr. Sugden contrasted those sections with the position after a decision has been given at the final level of appeal, the Island Tribunal. There is no right of appeal to any higher body (although s. 24 gives to any party not satisfied with the Island Tribunal’s decision the right to a full rehearing before a differently constituted Tribunal). He submitted that the scheme of the Act shows that a dispute about the custom ownership of land is not to be considered resolved until either an Island Tribunal has made its final decision or a lower level tribunal’s decision had been accepted by the parties.

12. While pointing out that the passage cited above from Traverso –v- Chief Kas Kolou was obiter, Mr. Sugden did not disagree with it. Rather, he sought to distinguish it on the basis that Traverso involved litigation under the previous system for resolving customary land ownership where the jurisdiction to appeal the Island Court decision to the Supreme Court arose from the Island Courts Act, so that the provisions in the Customary Land Tribunal Act on which he relies did not apply.

13. Mr. Ngwele’s submission also argued that because there was an appeal pending this was "disputed land", the ownership of which is claimed by more than one custom group.

Discussion

14. I have come to the conclusion that Mr. Sugden’s submission is correct. Subsection (1) of ss. 10, 15 and 20 of the Customary Land Tribunal Act states clearly and succinctly that if all parties to a dispute accept the decision of a lower level tribunal, the dispute is resolved. Subsection (2) separately provides that any party who does not accept the decision may appeal to the next level.

15. Parliament did not have to include subs. (1) in order to provide the right of appeal set out in subs (2). Most provisions giving a right of appeal consist of no more than is stated in subs (2).

16. Subsection (1) must have both a meaning and a purpose. In my view the logical effect of subs (1) is that a dispute is not resolved if all the parties do not accept the decision made at a lower level. Furthermore Parliament has seen fit to make that specifically clear.

17. Although Mr. Yawha’s submissions (and the dicta in Traverso) no doubt correctly state the position in relation to decisions made within a conventional hierarchical court system, they do not take account of the unusual nature of subsection (1) of ss. 10, 15 and 20 of the Customary Land Tribunal Act.

18. Although unusual, it is not difficult to understand the reason for it in the light of the object of the Act set out in s. 2 which is "to provide for a system based on custom to resolve disputes about customary land".

19. In pursuance of that object, Parliament set up a multi-layered system where a party has the right to argue his case about the vitally important issue of land ownership up to 5 separate times (inclusive of an Island Tribunal rehearing) in tribunals consisting of local chiefs and elders before the point of final resolution is reached. So subs (1) of ss. 10, 15 and 20 can be seen as an integral part of a custom based system of dispute resolution based upon lengthy, even protracted, discussion and deliberation resulting, if possible, in a decision which takes its authority in part from its acceptance by the parties.

Conclusion

20. The answer to the question set out in Para 4 above is "yes". While the opposite answer may have had the effect of removing the First Defendant’s standing in this proceeding, it does not necessarily follow that the answer given means that the claimant has no rights or remedies in respect of the land. The parties will need time to consider their positions.

21. There will be a further case management conference on 30 March at 8:30am. Applications by any party must be filed and served no later than 23 March 2007.

Dated AT PORT VILA on 9 March 2007

BY THE COURT

C.N. TUOHY
Judge