Thomas v SANMA Island Land Tribunal [2012] VUSC 170; Civil Case 70-12 (1 June 2012)

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

Civil Case No. 70 of 2012

BETWEEN:

VIRA THOMAS as representative of Family Taratue
Claimant

AND:

SANMA ISLAND LANDS TRIBUNAL
Defendant

Coram: Justice D. V. Fatiaki
Counsels: Mr. C. Leo for the claimant
Mr. A. F. Obed for the defendant

Date of Decision: 1 June 2012

REASONS FOR DECISION

1. On 21 May 2012 this Court granted the claimant’s opposed urgent application to be added as a party in an appeal pending before the Sanma Island Land Tribunal about the customary ownership of Ratua Island in Santo. On that occasion the Court reserved its reasons for decision which are now delivered.

2. The basis of the defendant Tribunal’s rejection of the claimant’s application to become a party in the appeal is that the claimant was not a party in the lower tribunal hearings and was not a claimant in the original hearing before the Tutuba Village Land Tribunal and, therefore, cannot be an appellant before the Sanma Island Land Tribunal which is a second tier appellate tribunal within the provisions of Part 5 of the Customary Land Tribunals Act (‘the Act’).

3. The relevant provisions of the Act are Sections 21 and 22 which provides:

“Application of Part

21. This Part applies in relation to the following decisions:

(a) decisions of a custom area land tribunal under Part 4;

(b) decisions of a village land tribunal under Part 2 about land situated on an island where there is only one custom area, being a custom area that is not subdivided into custom sub-areas;

(c) decisions of a custom sub-area land tribunal under Part 3 about land situated on an island where there is only one custom area.

Appeal notice

22. (1) If a person or group of persons:

(a) is a party to a decision referred to in section 21(a), (b) or (c); and

(b) wants to appeal against that decision;

the person or group must give a notice of appeal in accordance with subsection (2) within 21 days after the announcement of that decision.

(2) The notice must:

(a) be in writing in Bislama, French, English or another language of the person or group giving the notice; and

(b) be given to the chairperson of the council of chiefs for that island; and

(c) specify the decision being appealed against; and

(d) specify the grounds of the appeal; and

(e) contain a description, and specify the location, of the land; and

(f) specify the names of the parties to the dispute.”

4. From the foregoing it is clear that the right to appeal to an Island Land Tribunal is limited or confined to:

“a person or group of persons ... (who) is a party to a decision referred to in Section 21 (a) (b) or (c)”.

In other words, the appellant must have been a “party” (either as an original claimant or appellant) before the lower tribunal whose decision is being appealed in order to qualify as an appellant.

5. In the present case it is common ground that the claimant was not a party before the lower tribunal that dealt with and determined the customary land dispute concerning Ratua Island and therefore was not “a party to (the) decision” or in the subsequent appeal therefrom.

6. The applicant’s claim is supported by the sworn statement of Manji Timbaci who was born in 1950 and who deposes to having a close childhood connection to Ratua island. He also traces an unbroken bloodline to named male ancestors who originally lived on Ratua island in the 1800s before white settlers forced them off onto the nearby larger island of Malo. Even then Ratua island continued to be a regular source of shellfish and building materials. Finally reference is made to settled customary land tenure rules which are said to support their claim to custom ownership of Ratua island.

7. Defence counsel’s simple, straight forward submission is that, in the above circumstances, the claimant has no right of appeal and cannot and should not be permitted to become a party to the appeal before the defendant Tribunal. The mere fact that the claimant may have some arguable customary claim or genuine entitlement to Ratua Island is not a good enough reason for this Court to ignore the clear words of Section 22 (1) (a) of the Act and grant the unprecedented relief sought by the claimant in the current application.

8. Claimant’s counsel in urging the application, highlights the importance of land to the indigenous people of Vanuatu and refers to various dicta in decisions of the Court of Appeal in support of a non-restrictive interpretation of the appeal provisions of the Act. Whilst accepting the novelty of the application counsel nevertheless points to the potentially grave injustice to the claimant who had no notice or knowledge of the original customary land dispute concerning Ratua Island or of the subsequent appeal.

9. In a not dissimilar instance under the Island Courts Act which was the predecessor to the Customary Land Tribunals Act, the Court of Appeal said in Rombu v. Family Rasu [2006] VUCA 22:

“On 19 July 2005 the appellant Vanua Rombu applied to the Supreme Court to be joined as a party to Land Appeal Case no. 7 of 1996. Vanua Rombu had not been a party to the Island Court proceeding and had not registered a claim with the Island Court in respect of an interest in the land when notice of the Island Court proceedings had been publicly given. His application to be joined in the appeal was dismissed.

The primary judge observed that the Court of Appeal had held in Loparu v Sope [2005] VUCA 4; CAC 26 of 2004, judgment delivered 3 May 2005, that the time limit in s.22 is to be strictly interpreted. Vanua Rombu’s application was made more than ten years out of time.

The first issue for this Court is an appeal by Vanua Rombu against the dismissal of his application to be joined in the Land Appeal case.

The learned primary judge decided the matter on the basis that Vanua Rombu could have become a party to the Land Appeal case if, as a person aggrieved by the Island Court decision, he had sought to appeal against the Island Court decision within the time prescribed by s.22 of the Island Courts Act. That approach has been accepted as correct by the parties to this appeal. For the purpose of this appeal it is not necessary for us to consider whether that approach is correct. It assumes that the expression "any person aggrieved" in s.22 should be widely interpreted to include a person who was not a party to the proceedings in the Island Court. There are statements in the judgment of this Court in Loparu v Sope, CAC No. 26 of 2004, judgment 5 May 2005, which are supportive of the wide interpretation. However, those statements were not essential to the decision in that appeal and should be regarded as obiter dicta. Further it was not necessary to decide that question of interpretation in Kalsakau v Jong Kook Hong [2004] VUCA 2; CAC 30 of 2003 judgment 8 June 2004. It is a question that should be left until it is directly raised and fully argued.”

(my underlining)

Plainly the question whether a non-claimant in a customary land dispute can be joined as an appellant in an appeal against the decision in the dispute remains moot.

10. The Court of Appeal also observed that:

“The procedure laid down in the Island Courts (Civil Procedure) Rules 1984 is designed to ensure that anyone who claims an interest in custom land becomes aware when a claim is made in an Island Court to establish ownership. Order 6 Rule 6 provided that the clerk of Court shall set a date for the hearing of a land claim which is not less than 30 days hence. The clerk shall then issue a summons requiring attendance of the defendant or defendants at the hearing of the claim. The proceedings are then served on the defendant or defendants, being the other parties named by the plaintiff as parties against whom the claim is made. Rule 8 requires that by notices posted on the land and by other appropriate means the clerk shall advise the public of the date of the hearing of the cause and the names of the parties; and the clerk shall inform the public that all person having interest in the proposed cause shall as soon as possible apply to the Court to be joined as plaintiffs or defendants as the case may be. Rule 9 requires that the notice shall continue for a period of 30 days from the date when the notices are posted on the land.

Order 18 of the Island Court (Civil Procedure) Rules lays down procedures to be followed at the hearing. Rule 9 of that Order requires that the Court visit the land before reaching a decision.

In combination, these various provisions as to notice and the Court’s attendance on the land are intended to remove the chance that someone who has a genuine interest in the land will not become aware of the proceedings.”
(my underlining)

11. In this latter regard, it is noteworthy that there are no similar Rules under the Customary Land Tribunals Act which merely provides in Section 7 that the first and only notification of a customary land dispute is to be given by the person or group of persons who have a dispute about the ownership or boundaries of customary land to the “principal chief” of the village where the land is situated and to no one else. Likewise in an appeal under Part 5 to an Island Land Tribunal, notice need only be given “to the chairperson of the Council of Chiefs” who is then required to establish an island land tribunal to determine the appeal. There is no comparable requirement to publicly advertise the dispute or the appeal on the part of the parties to the dispute or appellants or on the part of the “principal chief or chairperson” or even the “secretary” of the relevant land tribunal that has been set up to hear the dispute or appeal.

12. Given the above omissions the chances of a genuine claimant not being aware of a dispute about customary land in which he has an interest or of the hearing of the claim(s), is considerably higher under the Customary Land Tribunals Act than under the predecessor Island Courts Act.

13. If I may say so this is a serious lacuna in the legislation and one which ignores the sentiments expressed by the Court of Appeal in Raupepe v. Raupepe [2000] VUCA 6 when it said:

“It is a fundamental procedural requirement in Court proceedings concerning the ownership of land that all people who claim, or are likely to claim, an interest in the land be before the Court. There were two reasons for that. The first, is the natural justice reason to ensure that those whose interest might be affected have the opportunity to be heard at the trial and to put whatever information they want to put in support of their position or against somebody else’s position. The second reason is that the judgment of the Court, because it determines for the world at large who owns the land, must be one that binds all those people who might have an interest in the land. A judgment would not bind those people unless they are before the Court as parties.”
(my underlining)

14. More recently, in Enbue v. Family Willam Bras [2011] VUCA 12 the Court said under the heading “The Importance of Custom Land” (at paras 8 and 9):

“The Constitution of the Republic of Vanuatu recognises the importance of custom land to its people. Chapter 12 "Land" contains Articles 73 to 81 dealing with that topic. Article 73 provides that all land in Vanuatu belongs to the indigenous custom owners and their descendants. Article 74 provides that the rules of custom shall form the basis of ownership and use of land in Vanuatu. Article 78 (2) provides for appropriate customary institutions or procedures to resolve disputes concerning the ownership of custom land.
Both the Island Courts Act and the Customary Land Tribunal Act are intended to give effect to those aspirations and to those fundamental values underlying the society of Vanuatu. They provide for the custom owners of land to be determined in accordance with custom law, provided that the processes of the custom tribunals established under those Acts proceed in accordance with the law. The appeal to the Supreme Court provided in each of those Acts is to ensure that, ultimately, persons who claim to be custom owners to land have their claims decided under custom law but also by procedures prescribed by law, including that they are given natural justice (or procedural fairness as it is often now called)."
(my underlining)

15. Claimant's counsel relying on dicta of the Court of Appeal in West Tanna Area Council Land Tribunal v. Natuman [2010] VUCA 35, submits that this Court should adopt an expansive interpretation of the expression "a party to the decision" in Section 22 (1) (a).

16. In the West Tanna case the Court of Appeal said of the expression "the parties to the dispute" in Section 39 of the Customary Land Tribunal Act (at para 20):

"The term "the parties to the dispute" is not defined. Clearly any person to the initially-notified dispute will be a party. The term is not intended to be a restrictive one. Otherwise it would not be consistent with the way the various tribunals are to operate. However, especially because section 27 provides for all parties to be given a full and fair hearing, it is clear that the 'parties' may include any party whose proper interests may be affected by the resolution of the dispute. Those parties will depend on the circumstances of the particular case. In certain circumstances, as the primary judge observed, those persons may include persons who under custom law may have an interest in the land in dispute even though they are not named in the original notice of dispute."
(my underlining)

17. In the present case counsel forcefully submits that the claimant whose family claimed customary ownership of Ratua Island in previous proceedings commenced in 1983, is a person whose proper interest will (not may) be affected by the determination of the appeal in so far as he and his descendants stand to lose, forever, any claim they would otherwise have to the island if this joinder application is refused (see: Section 33 of the Act).

18. I am not unmindful of the potential "floodgates" and disruptive effect that this decision may have on the workings of the Customary Land Tribunals Act in the resolution of customary land disputes, but, equally, the importance of customary land to the indigenous community of Vanuatu cannot be ignored or relegated because of the legislative short-comings of an Act that has as its sole object the provision "of a system based on custom to resolve disputes about customary land".

19. Such shortcomings that have been identified in this ruling can be easily rectified by the relevant Minister exercising powers under Sections 43 and 44 of the Act and by the secretary of a Land Tribunal doing "whatever is reasonably necessary to assist and facilitate an orderly, fair and expeditious hearing of a dispute" [see: Section 38 (e)].

20. In my view a non-restrictive approach should be adopted in interpreting Section 22 (1) (a) of the Act.

21. For the foregoing reasons the application was granted.

DATED at Port Vila, this 1st day of June, 2012.

BY THE COURT

D. V. FATIAKI
Judge.