Maragamba Land Owners v Joint Area Land Tribunal for Longana Airport [2010] VUSC 58; Civil Case 26 of 2009 (14 May 2010)

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

Civil Case No. 26 of 2009

BETWEEN:

MARAGAMBA LAND OWNERS
Claimants

AND:

JOINT AREA LAND TRIBUNAL FOR LONGANA AIRPORT
First Defendants

AND:

TIMOTHY QUAI
Second Defendant

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Willie Daniel for the Claimants
Mrs Marisan P. Vire for the Defendants

Date of Hearing: 14th April 2010
Date of Judgment: 14th May 2010

JUDGMENT

1. By their claim filed on 21st September 2009, the Claimants seek the following orders that –
   
   • (a) The proceedings in the Joint Area Land Tribunal for Longana Airport be discontinued.
     
   • (b) The proceedings be determined by a differently constituted Land Tribunal.
     
   • (c) Costs.
     
   • (d) Any other orders as deemed just.
     
2. The facts are that –
   
   • (a) On 15th April 2009, the Penama Provincial Council as facilitator caused a 30 days Notice to be posted at public places around Longana area and to the North East of Ambae, inviting interested parties to lodge their claims within 30 days expiring on 15th May 2009.
     
   • (b) The Claimants lodged their claims pursuant to the Notice.
     
   • (c) On 29th June 2009, the First and Second Defendants issued another notice again inviting interested parties to lodge their claims within 21 days, the notice again was posted in the same public places as the first notice. This notice expired on 20th July 2009.
     
   • (d) The Claimants lodged their claims again following that notice.
     
   • (e) On 5th August 2009, the First and Second Defendants issued the third Notice advising the parties about –
     
     • (i) The final list of parties who had lodged their claims.
       
     • (ii) A further 21 days for the parties to file their statements (infomeson).
       
     • (iii) Providing names of the parties spokespersons and of two witnesses.
       
     • (iv) A date of the tribunal hearing.
       
     • (v) Fee amounts to be paid by each parties.
       
3. From those facts, the Claimants allege that the First Defendant had failed to follow the procedures laid down in the Customary Land Tribunal Act No. 7 of 2001 (the Act) by –
   
   • (i) Failing to give notice of hearing within 21 days after the tribunal had been established.
     
   • (ii) Giving an additional 21 days notice allowing new parties to be added.
     
   • (iii) Failing to follow the terms of its notice dated 29th June 2009.
     
   • (iv) Failing to ensure that only parties who had complied within the first 21 days notice should be allowed as parties.
     
4. On 28th September 2009, the Claimant obtained ex parte orders from this Court suspending the hearing by the First Defendant pending further order or until determination of the Claimants claims in this proceeding. The Defendants were given liberty to apply on 48 hours’ notice to be heard in relation to the order. There has been no application to date. The order therefore stands, meaning the first relief sought by the Claimants have effectively been granted.
   
5. The only issue remaining is whether this Court should send the matter back to be decided by a differently constituted land tribunal. The power of the Court to do this is available under Section 39 (2) of the Act. The Court has to be satisfied on the evidence before it on the balance of probability that the First Defendant Tribunal did not follow procedures laid down in the Act. The burden is on the Claimant to prove it.
   

6.1. The first issue in contention is about the three purported notices issued. The first notice is the notice dated 15th April 2009 by the Penama Provincial Government Council annexured by Mr Quai, Second Defendant as "TQ1". This is a 30 days notice. It was an administrative notice and although there is nothing in the Act that expressly prohibits it, it was not an unreasonable notice in view of the principle of "interested parties’ in the Raupepe case.

6.2. Secondly, the Notice dated 29th June 2009. This is a 21 days notice purportedly issued by the First and Second Defendants pursuant to Section 25 of the Act. This, if done properly would nave been a proper and valid notice however, it fell short of meeting the requirements of Section 25 (2) (a), (b) and (c) by specifying the date and time of hearing, the venue or place of hearing; and the name of the secretary. This Notice is annexed as "TQ2".

6.3. What actually happened was the Defendants extended the period by a further 21 days. The Act does not provide any legal power to do this. Therefore, it is clear the Defendants had acted contrary to the procedures as laid down in the Act.

6.4. Thirdly, the Notice of 5th August 2009 annexed as "TQ3" in the sworn statement of Timothy Quai. This notice was not warranted. All the information in this notice should have been given in the second notice of 29th June 2009. The Defendants had failed to follow procedures when they issued this additional notice.

7.1. The Claimants raised the issue of objections noted by Mr Tambe at a Conference held on 28th August 2009. The minutes of the meeting are annexed as "TQ5". The issue is: Was this in line with the procedure in the Act?

7.2. The answer is "No".

Section 26 of the Act is clear and unambiguous. It states –

"(2) Wherever a Land Tribunal first meets to hear a dispute, the chairperson must:

(a) open the meeting with prayer; and

(b) introduce himself or herself, the other members and the secretary of the land tribunal; and

(c) ask if there are any objections to the qualification of the chairperson, any of the other members or the secretary.

(3) Subject to subsection (4), the chairperson must consider any objection; and if he or she considers that the objection is justified, he or she must disqualify the person concerned and adjourn the meeting to enable another person to be appointed.

(4) If the objection is to the chairperson of the land tribunal, the other members of the tribunal must consider the objection, if they consider that the objection is justified, they must disqualify the chairperson and adjourn the meeting to enable another chairperson to be appointed."

8. The evidence of the Claimant is that on 21st September 2009, the chairperson opened with a prayer but then went directly into inviting the spokesman of the Claimants to present their case. Clearly, the tribunal had ignored the procedures in Section 26 (b), (c) and (3) and (4) of the Act. Their argument was that this was already done at a conference on 28th August 2009. The Court has already ruled that the calling of the conference was not in accordance with the legal procedures and as such, it was invalid.
   
9. The Claimants raised submissions concerning the exorbitant court fees charged by the Defendants. However, the Claimants did not plead to these in their claims and therefore it is not open to them to raise it as an issue for determination in their submissions. It is irrelevant and the Court will not consider it.
   
10. In conclusion, the Claimants succeed in their claims against the Defendants. And they are entitled to the orders sought in their claims.
    
11. The formal Orders of the Court are:-
    

(a) The proceedings before the Joint Area Land Tribunal For Longana Airport be discontinued pending the appointment of a new chairperson in place of Chief Alickson Wai and of a new member in place of Benuel Garae.

(b) The number of disputing parties will remain at 14 inline with the Raupepe case principle.

(c) As soon as practicable after a new chairperson and member have been appointed the tribunal shall convene and fix a date for a fresh hearing.

(d) The secretary shall notify all parties about the date and place of hearing by a Notice of Hearing.

(e) The tribunal shall hold a fresh hearing beginning with the procedure as specified in Section 26 (2), (3) and (4) of the Act.

(f) The Claimants claim for costs in this Court is declined. However, their costs in the tribunal is reserved for them in that tribunal.

DATED at Luganville this 14th day of May 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge