Livo v Government of the Republic of Vanuatu [2011] VUSC 279; Civil Case 31 of 2011 (6 October 2011)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No. 31 of 2011

BETWEEN:

ZAKIAS BATU LIVO
Claimant

AND:

GOVERNMENT OF THE REPUBLIC OF
VANUATU
First Defendant

AND:

RACHEL VATARUL
Second Defendant

AND:

SUPENATAVUITANO COUNCIL OF CHIEFS
Third Defendants

Mr Justice Oliver A. Saksak

Date of Oral Decision: 4th October 2011
Date of Reasons Published: 6th October 2011

JUDGMENT

1. This judgment provides reasons for the orders of this Court issued on 4th October 2011. The Order is annexed to this judgment and forms an integral part of this judgment.
   
2. On 18th July 2011, the Claimant as applicant filed an urgent application seeking two orders as follows –
   
   • (a) That the Third Respondent, their servants or agents be restrained from determining claims of customary ownership of all land at Aore, including Belmol, Alau and Purumamasa until further order of the Court; and
     
   • (b) That the Second and Third Respondent pay the costs of the application.
     
3. Five grounds were advanced by the applicant as follows –
   
   • (a) That Supenatavuitano Council of Chiefs is not the properly constituted Land Tribunal to issue Public Notices requesting litigants to lodge their claims for customary ownership over Belmol, Alau; and Purumamasa Lands, situate on Aore Island.
     
   • (b) The Court is yet to determine the substance of the applicant's claim in Probate Case No. 6 of 2011.
     
   • (c) The Court is yet to determine the substance of the applicant's claim in this proceeding.
     
   • (d) Other grounds as set out in the Affirmed Statement of the applicant; and
     
   • (e) That unless the Court intervenes, the action by Third Defendant will raise all sorts of complication.
     
4. At the outset Mr Yosef sought an adjournment because he had not complied with the direction orders of the Court dated 8th September 2011. Counsel apologized for his failure and explained that it was due to the passing of his mother that Counsel could not file and serve any defence and statements in response within the 14 days as required.
   
5. Mr Botleng objected to any further adjournment and emphasized that paragraph 2 of the order is clear that the urgent application was listed for hearing on Tuesday 4th October 2011. He pressed the Court to proceed to hear the application in the absence of the First and Third respondents.
   
6. The Court accepted Mr Botleng's position. It was a very simple application. Counsel was present on behalf of the First and Third Respondents on 8th September 2011 and there was no reason why they could not be in Court on 4th October. The request for an adjournment was refused and the Court heard Counsel in respect to the application.
   
7. Mr Botleng referred the Court to the affirmed statement of the applicant dated 18th July 2011 filed in support of the application. Reference was made to the Public Notice annexed as ZBL8. Counsel referred the Court to the applicant's undertaking as to damages and pressed the Court for the issue of the two orders sought.
   
8. Mr Yosef made verbal submissions which were brief. He submitted the application was vexatious and frivolous. He submitted the second respondent had already been through the formal process to be recognized as the custom owner of lands at Belmol, Purumamasa and Alau. He submitted further that Probate Case No. 6 of 2011 had been dealt with by the Court by the issuance of judgment on 4th October prior to the hearing of the application. As regards the affirmed statements of the applicant, Mr Yosef said he would be filing a defence and proper responses in due course.
   
9. The Court retired for about 15 minutes to consider its decision; after which time the Court delivered an oral decision.
   
   • 10.1. Looking at the grounds, first the complaint that the Third Respondent was not the properly constituted Tribunal to issue Public Notices. From the Public Notice dated 19th May 2011, it is clear the Supenatavuitano Council of Chiefs was only facilitating the process. The actual hearings would be done by the Joint Village Land Tribunal. In order for the applicant to succeed on this ground he had to show by evidence that he had lodged his claim as a claimant so he could be entitled to challenge the jurisdiction of the Supenatavuitano Council of Chiefs. In the Court's view, the applicant had no evidence to that effect. Therefore, that ground failed.
     
   • 10.2. As for the second ground, Probate Case No. 6 of 2011 was disposed of in the morning of 4th October 2011. The Court then informed Counsel that it would adjourn the hearing of the application for some 30 minutes at 10 O'clock a.m. The Court actually commenced hearing the application at 10.15 a.m and rose at 10.30 a.m for 15 minutes to consider its decision. At 10.45 a.m the Court resumed to deliver its oral decision. That being so, Probate Case No. 6 of 2011 could no longer be a valid ground for seeking the orders applied for. The application failed on that ground.
     
   • 10.3. As for the third ground, Civil Case No. 31 of 2011 is indeed a matter yet to be heard and determined. But looking at the pleadings-
     
     • (a) At paragraph 1 the applicant (as claimant) is asserting he is the custom owner of land known as Alau, Belmol and Purumamasa on Aore Island. Unfortunately with respect to the applicant, the issue of ownership was settled as long also as 1981 by the Joint Land Committee. That decision was endorsed by the Supenatavuitano Council of Chiefs in June 2005. And in October 2010, the Joint Area Land Tribunal further endorsed that decision. That decision has been recognized and registered at the Office of the Customary Lands Unit by letter dated 15th November 2010. That letter is annexed as ZBL4. That being so and as far as the Court is concerned, customary ownership of Alau, Purumamasa and Belmol lands on Aore have been decided. The matter is now resjudicata. In the judgment of Probate No. 6 of 2011, this Court specifically declared that the Claimant has no customary rights or beneficial interests over Belmol, Alau and Purumamasa lands on Aore.
       
     • (b) At paragraph 11, the Claimant is relying on the decision of the Veriondali Council of Chiefs dated 4th April 2011 recognizing him as the rightful heir to all lands of David Batu Livo. However, the evidence of Chief Peter Moli in his sworn statement of 23rd August 2011 at paragraph 5 is very clear that the "kastom raet" recognized on 4th April 2011 related only to David Batu Livo's properties located on Mavea Island or any other land that is declared in his favour.
       
     • (c) At paragraph 7, the Claimant is relying on the 1982 Ministerial Declaration made in his favour. However, this Court has recognized in Probate Case No. 6 of 2011 that according to the ruling of the Court Appeal in Valele Family v. Touru [2002] VUCA 3, that declaration is not a declaration made by an Island Court or a Lands Tribunal and is not valid.
       
     • (d) At paragraph 14, the Claimant challenges the validity of the decisions of 4th May 2005, 15th June 2005, 20th October 2010 and the letter of 15th November 2010. He instituted his claims as a Supreme Court Claim. However, accordingly to the Court Appeal's decision in the Case of West Tanna Area Council Lands Tribunal v. Natuman any challenge to the validity of any decision of a Lands Tribunal must be instituted by Judicial Review. Therefore, by instituting his claims by Supreme Court Claim it amounts to an abuse of process.
       
   • 10.4. The decisions sought to be challenged are more than 6 months old from the time of their making. Rule 17.5(1) is very clear on this 6 months period.
     
   • 10.5. For the foregoing reasons, it was obvious to the Court that the Claimant's claims could not be sustained. The Court agreed with Mr Yosef that the application was vexatious and frivolous. All the application and the claim was doing is to make all parties waste unnecessary time and costs over issues of ownership which are res judicata.
     
   • 10.6. The Court is duty bound by Rule 1.3 to give effect to the overriding objectives when acting under the rules or interpreting them. Rule 1.2(1) sets out the main overriding objective is for the Courts to deal with cases justly. Rule 1.2(2)(b) states that "dealing with cases justly includes, so far as practicable: (b) saving expense; ...."
     
   • 10.7. That being so, it was necessary for the Court to go beyond merely determining the application of the Claimant but also to consider the whole of his claim for the purposes of saving costs and expense. In effect, the Court had used "one stone to kill two birds."
     
   • 10.8. The fourth and fifth grounds were not sustainable in the view of the Court.
     
11. For the foregoing reasons, the Court dismissed the applicant's application and the Supreme Court Claims dated 18th July 2011 in its entirety.
    
12. It was therefore appropriate (in the circumstances) to award costs in favour of the Second Respondent only.
    

DATED at Luganville this 6th day of October 2011.

BY THE COURT

OLIVER A. SAKSAK
Judge