Robei v Pierre [2010] VUSC 78; Civil Case 03 of 2010 (14 June 2010)

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

Civil Case No. 03 of 2010

BETWEEN:

CHIEF AULU ROBEI
as Representative of FAMILY ROBEI
First Claimant

AND:

RARA MELE
as Representative of FAMILY MELE
Second Claimant

AND:

LEON PIERRE, KARAERU HEME, VUROHESE KABRIEL, VOYA CHANEL,
KOLOMULE RAVOUTUI, KARAERU LEON, EON VEKOEVOURO, CHIEF
MOLIULIA MANIT, MEMBERS OF VUTIONE TASMALUM VILLAGE LAND TRIBUNAL
First Defendants

AND:

HARRY FAMILY VUNE TAVUI
TURPOTPOT
Second Defendants

AND:

TAMATA FAMILY VUNE TAVUI
TURPOTPOT
Third Defendants

AND:

POSKI FAMILY VUNE TAVUI
TURPOTPOT
Fourth Defendants

AND:

ROGER FAMILY VUNE TAVUI
TURPOTPOT
Fifth Defendants

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Miss Jane Tari for the Claimants/Respondents
All Defendants appearing in persons unrepresented/ Applicants

Date of Hearing and Decisions: 14th June 2010

DECISION

1. The Second Family Defendant made formal application filed on 26th May 2010 seeking orders that –
   
   • (a) Civil Case No. 3 of 2010 be struck out because "hemi no gat serious purpose or value"; and
     
   • (b) They be paid their costs of and incidental to the proceedings.
     
2. The application is supported by the sworn statement of Harry Vune Tavui Turpotpot sworn also on 26th May 2010.
   
3. The First, Second, Third, Fourth and Fifth Defendants all argued in support of the strike out application.
   
4. Miss Tari responded verbally to the application raising two points namely:-
   
   • (a) 2 Notices issued concerning the lodging of claims by interested persons; one issued on 6th August 2009 and the second issued on 13th August 2009. She submitted the 21 days required had not yet lapsed when the Lands Tribunal met and decided the case on 2nd September 2009.
     
   • (b) Secondly, it was suggested the justices of the Tribunal are very closely related to the Defendants.
     
5. Some further points were raised by Miss Tari that –
   
   • (a) Appointments of the justices of the Tribunal were not appointed by the Boundary Chiefs as required in the Act.
     
   • (b) The Defendants did not follow the proper process when they failed to respond to the Claimant’s letter of appeal of 20th September 2009, instead they proceeded to hear the dispute and made declarations in their own favour.
     
6. On those basis, Miss Tari submitted the proceeding should not be struck out and this application be dismissed.
   
7. Mr Harry Turpotpot made a brief reply to suggest Counsel and her client were misleading the Court by their arguments and submissions.
   
8. Having considered all the arguments and submissions made, the Court decides that –
   
   • (a) The Application for strike out be and is hereby allowed.
     
   • (b) Civil Case No. 3 of 2010 be hereby struck out in its entirety.
     
   • (c) The Ex Parte Orders issued by this Court on 26th February 2010 staying proceedings before the South Santo Area 1 and 2 Lands Tribunal be hereby vacated.
     
   • (d) The Claimants jointly will pay the Defendants’ costs of and incidental to this case.
     
9. The reasons for the above decisions are that the case is misconceived in that –
   
   • (a) The two Claimants (Respondents) were not parties to the proceeding in the Village Land Tribunal. As such, they have no standing to bring this claim against the defendants. Section 39 of the Customary Lands Tribunal Act No. 7 of 2001 state as follows:-
     

"39 (1) If a person who is not qualified ............................; a party to the dispute may apply to the Supreme Court for an order ................"

(2) If a land tribunal fails to follow any of the procedures under this Act, a party to the dispute may apply to the Supreme Court for an order .........."

(Emphasis added).

The Claimants have conceded in their pleadings that they were notified by receiving two notices, but because they were confused they decided not to do anything about the notice. They were therefore clearly not parties to the dispute and as such, they have no standing to challenge the decision of a tribunal to which they were not parties. The cases of Chief Ajuju v. Taemoli Lulu and others: Civil Case No. 6 of 2010 and Tamata Dumdum v. Nikenike Vurobaravu: Civil Case No. 32 of 2009 are authorities for so holding.

(b) The Claimants are seeking declarations as their reliefs in the claims which they could do only by way of a judicial review, and this not a judicial review claim.

DATED at Luganville this 14th day of June 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge