Manamena v Onesmus [2010] VUSC 156; Civil Case 47 of 2010 (11 October 2010)

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

Civil Case No. 47 of 2010

BETWEEN:

CHIEF DONALD IAN MANAMENA
Applicant

AND:

TAMAN WILLIE ONESEMUS
Respondent

Claimant: Mr. D. Aru
Defendants: Ms. C. Thyna

RULING

1. The Judicial Review Application was set down to be heard today. Counsel for the Defendant has raised 3 issues that need to be resolved prior to considering whether or not to grant the Application for Judicial Review.
   
2. The first point raised by the Defendant is whether the Claimant's Application complies with Rule 17.8 (3)(a) of the Civil Procedure Rules, that is, whether the Claimant has an arguable case. It is clear from the evidence before the Court that the Claimant was a party to the original decision before the Land Tribunal and therefore does have a right of appeal against that decision. No further grounds are required to establish whether or not he has an arguable case. He has a right to appeal and he has exercised that right to appeal.
   
3. The second point raised by the Defendant is whether section 12 (2)(b) Customary Land Tribunal Act [CAP.271] has been complied with. That section requires the Appellant to give notice to the chairperson of the Council of Chiefs of the respective custom area. It is submitted by the Defendant that the Claimant in this case appears to have served the secretary and not the chairperson. However it is clear from the sworn statement of the Claimant dated 16th September, 2010 paragraph 4 that 4 days after the decision was handed down by the Duruaki Nguna Land Tribunal on 7th September, 2009 he appealed the decision and did so to the chairman of the Duruaki Nguna Land Tribunal. The Claimant has therefore complied with section 12 (2)(b).
   
4. The third point raised by the Defendant is whether the chairman of the Land Tribunal is the appropriate person who should be a party to the case filed by the Claimant rather than the secretary. Counsel for the Claimant has produced to the Court the Land Tribunal/ Hearing Procedures Paper 2003 where in paragraph 25 it states that after the 21 days appeal period has expired the secretary is to inform the office of the Land Tribunal of the appeal. Under paragraph 26 of the same paper the secretary also has an obligation to sent the appeal and all the relevant papers to the appeal to the chairperson of the tribunal that is to hear the appeal. The Judicial Review Application seeks only to achieve that. Therefore this is not the basis to decline the Claim for Judicial Review.
   
5. The Claim for Judicial Review filed by the Claimant is granted. A Mandatory Order is made requiring the Defendant in this case to submit all the files and documents in relation to the Duruaki Nguna Lands Tribunal Case No. 1 of 2009 to Chief Henry Manlaiwia, the Chairperson of the Navata Maraki Council of Chiefs immediately.
   

6. Costs of this session are awarded to the Claimant on a standard basis. The costs are to be as agreed by the parties or failing agreement as taxed by this Court.

Dated at Port Vila, this 11th day of October, 2010

BY THE COURT

N. R. DAWSON
Judge