Tula v Mofreser [2010] VUSC 76; Land Appeal 02 of 2007 (14 June 2010)

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

Land Appeal Case No. 02 of 2007

BETWEEN:

SIMEON TULA AND FAMILY
Appellants

AND:

JEFFREY WEUL MOFRESER
WEMANAR AND FAMILY
WEMAL AND SAWON FAMILY
HAROLD NAIS HOPKINS
KEITH SAWON
FRANK BOLLEN
Respondents

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Saling N. Stephens for the Appellants
Mr Daniel Yawha for the Respondents

Chief James Edward and Chief Philip Morris – Custom Advisors

Date of Hearing: 8th June 2010
Date of Oral Judgment: 9th June 2010

ORAL JUDGMENT

1. This is an appeal against the whole judgment and declaration of the Island Court dated 24th November 2005 in Land Case No. 3 of 2000. The appellants were the defendants and the respondents were the plaintiffs in that proceeding. The Island Court was comprised of Magistrate Jerry Boe, Justice John Wasarack, Justice Manasseh Wowud and Justice David Lug with Nicolas Kollen as Clerk of Court.
   
2. The Island Court made the following declarations –
   

"Folem findings blong Kot ia, Kot istap mekem dekleresen we iko olsem;

(a) Se famili Jeffrey Weul mo Frezer Womanar olgeta oli kastom lan ona blong ples ia Nebeklav mo olgeta igat raet blong toktok wetem ani man, egen mo kavman blong divilopem ples ia mo raet ia ino gat man I save tekemaot.

(b) Se famili Harold Naes olgeta oli kastom lan ona long graon ia Aworor mo olgeta igat raet blong toktok wetem eni man, agen mo kavman blong divilopem ples ia mo ino gat man I save tekemaot.

(c) Se famili Simeon Roy olgeta ino kastom ona long graon Nebeklav mo Aworor be raet we olgeta igat hemia wan raet nomo we famili Jeffrey I kivim long olgeta. From rison ia, Kot istap deklerem se graon we istat long Lembal kam kasem drae krik blong Lear I blong famili Simeon Roy mo olgeta igat raet blong wok ko antap long hil kasem kros baontri we famili Jeffrey I talem.

(d) Se evriman or woman we oli gat plantesen, Karen or eni divilopmen insaed long eria blong Nebeklav mo Aworor olgeta oli stap anda long han blong Jeffrey Weul mo famili Harold Naes.

(e) Se famili Jeffrey mo famili Harold Naes olgeta igat evri raet blong talem long ol man we oli gat ol property long ol graon long Nebeklav mo Aworor blong pem lease or rent.

(f) Se famili Jeffrey Weul mo famili Harold Naes I mas make mol kros mak long ol eria we ol man I pem blong stopem problem ia I happen bakeken long fuja I kam.

Anda long Seksen 22 (1) blong Islan Kot Akt, patis oli gat 30 deis blong apil akensem decisen ia sapos oli no hapi."

3. The appellants lodged their initial appeal pursuant to section 22 (1) of the Island Court’s Act Cap 167.
   
4. At the out set of the hearing, Mr Yawha raised a couple of preliminary issues for determination by the Court. The first issue was about non completion of appeal fees and non-filing of a Notice of Appeal.
   

4.1. Mr Stephens produced oral evidence by calling Danstan Tula who was cross-examined by Mr Yawha. His evidence showed that the appellants had –

• (a) Lodged an initial Notice of Appeal (handwritten).
  
• (b) The Notice of Appeal was receipted by the Court with an initial payment of VT28.000.
  
• (c) The balance of the filing fees were paid although no receipts could be produced, but the witness gave undertaking that given time, he would locate the receipts and produced them.
  

When the Court retired to consider its decision, Counsel for the appellants produced some receipts showing payments of the balances of fees. Upon calculation, the Court found the total amounts paid as Filing Fees of the appeal was VT79.000.
The Court was satisfied the appellants had completed their filing fees.

4.2. The Second issue was about non-filing of the Notice of Appeal. Mr Yawha argued that the initial Notice of Appeal had no stamps of the Court and as such submitted, there was no appeal in place.

The Court was satisfied that despite the initial Notice of Appeal lacking Supreme Court Stamps on every page and Filing Stamp at the back to indicate proper filing, the appellants did show there is a stamp on the first page as "RECEIVED" and it is dated 27th October 2003. Along with the appellants paying the full filing fees of VT75.000 (with an extra VT4.000), the court is satisfied that was enough to show the Notice of Appeal had been filed and it become valid and effective.
Those preliminary issues were therefore resolved.

5. The appellants filed their Amended Grounds of Appeal on 25th October 2007. They alleged six grounds as follows that the Learned Island Court Justices –
   
   • (a) Failed to give any consideration and/or weight to the evidence of the Appellants.
     
   • (b) Failed to determine the Land Case in accordance with the true custom and use of land in Gaua Island.
     
   • (c) Were not impartial in their deliberation towards the final conclusion of the case.
     
   • (d) Failed to make a complete and proper visit to the boundary of the land in dispute to properly identify historical sites etc prior to making their findings.
     
   • (e) Failed to properly identify and define the boundaries intended to be awarded to the Claimants.
     
   • (f) That there was an obvious bias by the Island Court in the conduct of the entire land case which resulted in the Court making the declaration it purported to make on the Respondents’ behalf.
     
6. The Appellants then sought the following reliefs –
   
   • (a) That their appeal be allowed.
     
   • (b) That the land matter be reheard by a newly constituted Court.
     
   • (c) In the alternative, that the Court Order that Family Tula be declared custom owner of the subject matter of appeal.
     
   • (d) That the Respondents pay the Appellants’ costs in this appeal and that in the Island Court.
     
7. Mr Yawha delivered a Notice of Intention to cross-examine seven of the appellant’s witnesses who had deposed to sworn statements on 23rd November 2009. These were Jonas Philip, Opres Philip, Danstan Tula, Basil Frank, Robert Wenel, Timothy Fanai and Paul Lazarus.
   

Mr Yawha also raised objections to most of the materials annexed by witnesses for reasons they were not the makers of the documents.

Mr Yawha invited the Court to deal with these also as a preliminary matter.

8. Mr Stephens objected and submitted Mr Yawha was not entitled to cross-examination as he and his clients had themselves failed to comply with the Court’s direction of 1st November 2007 by not filing any responses and or sworn statements. The only response they have filed was on 3rd June 2010 when they responded to the Appellants’ Amended Grounds of Appeal.
   
9. The Court was of the view that despite the Respondents not filing any sworn statements, they clearly showed their intention to cross-examine the Appellants’ witnesses by the letter of 23rd November 2009 and they are entitled to be given that opportunity. And the Court went a step further to rule that none of the named witnesses who gave evidence on the Island Court should be allowed to give any evidence which they had not first sought leave of the Court by proper application to do. And these were Jonas Philip, Robert Wenel, Timothy Fanai and Danstan Tula. Except for Danstan Tula whose evidence in paragraphs 110, 111 and 112 were allowed into evidence, the rest of his evidence together with the whole evidence of Jonas, Robert and Timothy were rejected. Basil Frank was not present at the hearing and he could not be cross-examined. His evidence could not be tested and therefore should be rejected as well. Cecilia Tula’s sworn statement was rejected as well because she was not a witness in the Island Court. Mr Yawha admitted she should have been included in his list but was not, due to an oversight.
   
10. Of the remaining four witnesses, the Court heard each of them confirm their statements in Examination-In-Chief. Then Mr Yawha carried out cross-examinations on each of them.
    
11. In closing submissions, Mr Stephens invited the Court to consider and determine the appeal in light of the remaining evidence of Danstan Tula, Paul Lazarus and Opres Philip, the Appellants’ skeleton arguments in the Appeal Book, the legal submissions made and relied on in the Island Court at pages 49 to 57 of the Appeal Book; the Land Declaration at p.78; the Note by Marsden Aris at page 81; the failure by the Respondents to comply with the Directions of the Court dated 1st November 2007; their Reply to the Respondents’ response of 7th June 2010; and the case of Masaai Family v. Lulu (2005) as authority of bias. Counsel then submitted that the appeal should be allowed and the other reliefs sought be granted.
    
12. Mr Yawha responded thoroughly to the submissions made by Mr Stephens that –
    
    • The Court had ruled that most of the witnesses’ evidence was inadmissible.
      
    • The evidence of Marsden Aris and other annexures were inadmissible as the Court had disallowed a major part of Danstan Tula’s sworn statement.
      
    • Even if they were admitted, the Island Court had given consideration and weight to all the appellants’ evidence before making their decision.
      
    • The issue of bais was not established as conspiracy.
      
    • Must be shown and the Appellants have not done so.
      
    • No connection or family relationship had been established.
      
    • Opres Philip’s evidence was hearsay and could not be relied on.
      
    • Paul Lazarus’s evidence was full of inconsistencies and was unsafe for the Court to rely on.
      
    • They had indeed not filed any documents in compliance with Court Orders but have filed a response on 3rd June and seek to rely on those responses.
      
    • No prejudice have been caused to the appellants by that failure or omission.
      
    • Weighing the balance of the Appellant’s evidence against the submissions the Court should arrive at one conclusion that the appeal could not stand.
      
    • There was no error made by the Island Court and all grounds raised should fail.
      
    • The Island Court Judgment benefited all Parties and the Judgment should be confirmed by this Court.
      
13. The Court rose at or about 4.30 p.m yesterday (8/06/010). We have had overnight discussions and have carefully analyzed and considered all evidence and submissions made by Counsel for the Parties. We have read the Judgment of the Island Court very carefully. We consider and determine this appeal on the Notes and Records of the Island Court Proceedings which were not part of the Appellants’ Appeal Book, but which are available on File. We have not allowed any fresh and or new evidence because the Appellants did not seek prior leave to do so, and to do so would be unfair to the Respondents.
    
14. We therefore answer the grounds raised as follows:-
    

Ground 1: Whether the Island Court Justices failed to give any consideration and/or weight to the evidence of the Appellants?

Looking at the Island Court Judgment and the evidence given by the Appellants there, there is nothing in the judgment to show an apparent failure and we answer this ground as "NO".

Ground 2: Whether the Island Court Justices failed to determine Land Case No. 3 of 2000 in accordance with custom and use of land in Gaua Island?

The Custom Advisors advised they had read the judgment carefully and were of the clear view the Island Court had correctly determined the case in accordance with custom and use of land in Gaua Island.

We therefore answer this ground as "NO".

Ground 3: Whether the Learned Justices of the Island court were not impartial in the deliberations?

We are not satisfied from the evidence or from the Records that this was the position and therefore we disagree with the grounds.

Ground 4: Whether the Island Court Justices failed to make a complete and proper visit to the boundary of he land in dispute before making their findings?

The Appellants had no evidence to support this ground. From the judgment we do not get the impression that there was no complete and proper site visit.

We therefore answer this ground as "NO".

Ground 5: Whether the Island Court Justices failed to properly identify and define the boundaries intended to be awarded to the Claimants?

Again from the judgment, we are unable to find there was such a failure and we therefore answer this ground as "NO".

Ground 6: Whether there was obvious bias by the Island Court in the conduct of the entire land case?

While it is apparent from the evidence of Danstan Tula that the presiding Magistrate was having sexual conduct during the course of the proceedings, we are not satisfied that the appellants had established a conspiracy that the Magistrate would make declarations in favour of the Respondents in return for a partner. The Appellants had knowledge of the affair occurring and they did nothing about it at the time to stop the proceedings then and there instead of leaving it and complaining about it in the appeal stage.

We therefore answer this ground as "NO".

15. All six (6) grounds relied on by the Appellants therefore fail.
    
16. The Court agrees with Mr Yawha that the Note by Marsden Aris (page 81) should not be admitted together with the documents at pp 82 and 83. Most of the evidence of Danstan Tula is inadmissible except paragraphs 110, 111 and 112. However his annexure E is disallowed as he is not the maker of it. The declaration dated 22 October 1994 and the Land Declaration dated 17th December 1994 (pp 76, 77 and 78) are not recognized as valid and binding. The Court of Appeal in Valele v. Tura and Paul Livo cases held that any decision made by any Councils of Chiefs or authorities that are not recognized as Courts within the structure of the Island Courts (or Land Tribunals) are not valid.
    
17. The evidence of Opres Philip adds nothing new to assist the Appellants’ case. The evidence of Paul Lazarus is unreliable because of its many inconsistencies. It is unsafe for the Court to rely on such evidence and is therefore rejected into evidence.
    
18. On the balance of the evidence, it is insufficient to establish there were failures by the Island Court Justices as alleged in the six grounds raised. All those grounds therefore fail, leaving the Court with one only conclusion that this appeal must be dismissed.
    
19. Accordingly we Order that –
    
    • (a) The appeal be hereby dismissed.
      
    • (b) The Judgment of the Island Court and its declarations dated 24th November 2005 be hereby endorsed, confirmed and upheld by this Court.
      
    • (c) There be no order as to costs. Each Party is to meet their own costs of the appeal in this Court.
      
20. We have agreed that the published judgment would only be signed by the Judge alone on behalf of the Court without the signatures of the two custom advisors.
    

DATED at Gaua this 9th day of June 2010.

PUBLISHED at Luganville this 14th day of June 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge