Iavere Family v Hog Harbour & Port Olry Joint Village Land Tribunal [2012] VUSC 249; Civil Case 17 of 2012 (27 November 2012)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No: 17 of 2012

BETWEEN:

FAMILY LENSY IAVERE & NEETH IAVERE REPRESENTED BY LENSY IAVERE & SIMEON STANLEY.
Applicants.

AND:

HOG HARBOUR & PORT OLRY JOINT VILLAGE LAND TRIBUNAL REPRESENTED BY MALACHI VELE & OTHERS.
First Respondents.

AND:

NAMSER IAKO of Hog Harbour Village, East Santo.
Second Respondent.

AND:

WILLIAM MARA REPRESENTING FAMILY WILLIAM REUR & LAZAR WARSAL & FAMILY
Third Respondents.

Mr Justice Oliver A. Saksak

Mrs Mary Grace Nari for the Applicants
The Attorney General for the First Respondent
Mr Felix Laumae for the Third Respondents

Date of Hearing: 2nd August 2012
Date of Judgment: 27th November 2012

JUDGMENT

1. This is a judicial review claim filed by the applicants on 20th March 2012 and amended on 18th April 2012.
   
2. The applicants seek to invoke the supervisory powers of the Court under Section 39 of the Customary Land Tribunal Act No. 7 of 2009 (the Act) for the following reliefs:-
   
   • (a) A declaration that the decision of the first respondent (Land Tribunal) declaring the third respondents as custom owners of Lulum land and Ureure Island on East Santo is of no effect;
     
   • (b) A mandatory order requiring the Hog Harbour/Port Olry Joint Village Tribunal be reconstituted to re-hear the dispute in relation to Lulum land and Ureure Island pursuant to Section 39 (2) (b) of the Act.
     
   • (c) An order pursuant to Section 39 (2) (a) of the Act quashing the declaration by the first respondents that Mara William Reur & Family are the custom owners of Lulum land and Ureure Island.
     
3. The grounds relied on by the Applicants are contained at paragraphs 1 – 6 of the Judicial Review Claims. The following facts can be summarized from those grounds –
   
   • (a) The Land Tribunal indicated by letter dated 14th February 2012 that they would be sitting on 22 February 2012 to hear and determine the dispute concerning Lulum land and Ureure Island. The applicants alleged the letter was sent to the wrong person.
     
   • (b) On 17th February 2012 Simeon Stanley went to Hog Harbour village and enquired from the second respondent about the claim. He was advised by the second respondent that there was none.
     
   • (c) The Land Tribunal proceeded to hear the land dispute on 23 February 2012. Lency Iavere attended the meeting and handed over a letter to the Chairperson of the Land Tribunal in which the applicants advised they would not attend the hearing because the appropriate legal procedures were not followed. As a result the meeting on 24th February 2012 was adjourned.
     
   • (d) On 25th February 2012 a new notice was issued on the first respondent fixing the dates of hearing to be 27 – 29 February 2012.
     
   • (e) On 27th February 2012 Mr Iavere went before the Land Tribunal and presented the second objection letter on the basis there was no notice and that they had not been given the opportunity to lodge their Counter-Claims.
     
   • (f) The Land Tribunal nonetheless proceeded with the hearing of the dispute and issued their decision on 14th March 2012 declaring ownership of Lulum land and Ureure Island in favour of William Mara Family and Lazar Warsal and Family.
     
   • (g) They later learned that two members of the Land Tribunal namely Serilo Palaud and Martino John were not qualified to act as adjudicators to hear the land dispute in respect to Lulum land and Ureure Island.
     
4. The applicants filed evidence by sworn statements by Jonathan Iavere and Simeon Stanley in support of their Judicial Review Application. These statements were filed on 11th June 2012 and on 9th July 2012.
   
5. The third respondents filed a defence on 2nd August 2012 generally denying the claims of the applicants.
   

They filed evidence by sworn statement on the same date by William Mara in support of their defences.

6. On 29th May 2012 the Solicitor General wrote to Mrs Nari informing Counsel that they had filed a sworn statement by Alicta Vuti and advised that they did not intend to file a defence on the basis of the Court of Appeal decision in West Tanna Area Council Land Tribunal v. Natuman & Others CAC 21 of 2010.
   

On 21st August 2012 the Solicitor-General wrote to the Court attaching the copy of the statement of Alicta Vuti. And on 1st October 2012 the Attorney General wrote again to the Court reiterating their earlier position advised by the Solicitor General. The State took no active part in the proceeding after their advices.

7. At the hearing on 2nd August 2012 only Mrs Nari and Mr Laumae were in attendance. The Court recorded that the pleadings had closed, the facts were not in issue and Counsel were required to file and serve written submissions within 14 days each and with liberty given to the First and Second respondents to file and serve any responses within 14 days thereafter.
   
8. Mrs Nari filed written legal submissions on 9th August 2012. They served it through Simeon Stanley on Lazar Warsal on 25th August 2012. On 3rd September 2012 service was effected on the Second Respondent. On 9th August 2012 service was effected on the officer of Counsel for the Third Respondents. Sworn statements as to service were deposed to by Rebecca Aru filed on 13th August and 10th September 2012 respectively. Despite service, the respondents have not filed any responses. And some four months have lapsed. The Court will dispense with the submissions of the respondents.
   
9. The gist of Mrs Nari's submissions were two fold namely:-
   
   • (a) That there were irregularities with the process of the Land Tribunal hearing; and
     
   • (b) There were irregularities with the notice of hearing issued by the First and Second Respondents.
     
10. Mrs Nari submitted that the following legal provisions were relevant for consideration –
    
    • (a) Article 73 of the constitution;
      
    • (b) Sections 7, 9, 25, 26, 27, 35, 37, and 39 of the Act.
      
11. Mrs Nari raised the following legal issues –
    
    • (a) Was a copy of the notice of dispute given to the applicant who was named as disputing party?
      
    • (b) Was there a public notice about the claim and calling of Counter-Claims?
      
    • (c) Should the notice of hearing be given to the representative of the disputing party?
      
    • (d) Do the parties have the right to object to the process of the hearing or just to qualifications of the adjudicators?
      
    • (e) Should tribunal members who are not included in the list of approved adjudicators for East Santo Custom Area be allowed to sit as adjudicators in this matter?
      
    • (f) What format should the judgment be in?
      

12.1 The issues in (a), (b) and (c) concern the notice. Counsel submitted these should be answered in the negative. The relevant sections of the Act are sections 7, 9 and 25. Section 7 requires Notice of disputes to be given and states –

"(1) If a person or a group of persons:

(a) Is a party to a dispute about the ownership of boundaries of Customary land; and

(b) Wants to have the dispute dealt with under this Act, the person or group must give notice of the dispute in accordance with subsections (2) and (3).

(2) The notice must be given –

(a) Not applicable

(b) If the land is situated within the boundaries of more than one village - to the principal chief of each of those villages.

(3) The notice must

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

(b) specifying clearly the land which is in dispute; and

(c) contain the names of the parties of the dispute."

12.2 Section 9 of the Act provides for Joint Village Land Tribunals. The relevant provision is subsection (1) which states –

"The principal chief of each village who receives a notice of a dispute under Section 7 (2) (b) must, within 21 days after the last day on which a principal chief receives the notice, together establish a joint village land tribunal to determine the dispute."

12.3 Section 25 provides for the notice of hearing and states –

(1) Within 21 days after the establishment of a land tribunal the Secretary of the land tribunal must give a notice under Subsection (2) to the parties to the dispute.

(2) The notice must –

(a) be in writing in Bislama, French, English or another language of the one or more of the parties to the dispute; and

(b) Specify the date and time of the meeting of the land tribunal to hear the dispute; and

(c) the place of meeting of the land tribunal, being a place which is convenient having regard to the location of the land, the residences of tribunal's members, the residences of the parties and the availability and security of meeting places; and

(d) the name and address of the Secretary of the land tribunal; and

(e) if applicable in the grounds of the appeal."

13.1 The notice of dispute is disclosed by William Mara as annexure "WM1" in his sworn statement dated 2nd August 2012. It is dated 10th August 2011. It is addressed only to the principal chief of Hog Harbour village and not also to the principal chief of Port Olry Village as required by Section 7 (2) (b) of the Act. It names the disputing parties as Mara William Reur and Lensy Iavre and Neith Iavre Family but fails to name Lazar Warsal and Family as required by Section 7 (3) (c). It names only Lulum land and fails to name Ureure Island as required by Section 7 (3) (b).

13.2 The public notice is disclosed also by William Mara in his statement as a annexure "WM2". It is dated 8th August 2011. It is signed by the Chairman Chief Malachi Vele and Chief Namser Iako. That notice is defective and is void and of no legal effect as it is ultra vires Section 25 of the Act. This section requires that such notice must be given by the Secretary of the land tribunal who amongst other things, must specify his name and address as required by Section 25 (2) (d).

13.3 There is another purported notice annexed by Willliam Mara as annexure "WM5". This is also a defective notice and is not valid in that it is only signed by Chief Namser and not by Chief Martino. And it is ultra vires Section 25 of the Act.

13.4 What the two principal chiefs should have done was to establish a joint village land tribunal to determine the dispute within 21 days after receiving the notice given by William Mara, as required by Section 9 (1) of the Act. There is no evidence that this was ever done. Clearly Section 9 (1) was never followed by the Land Tribunal in question.

13.5 Section 25 (1) clearly requires that any notice issued by the Secretary must be sent to the parties to the dispute.

The purported notice issued by Mara William dated 10th August 2011 named Lency Iavre and Neith Iavre as disputing parties. Notices issued pursuant to Section 25 (1) by the Secretary should be sent directly to Lensy Iavre and Neith Iavre and others having an interest to the disputed lands.

13.6 Applying those legal provisions to the facts in the evidence, the Court accepts Counsel's submissions that there were irregularities with the purported notices issued in that sections 7, 9 and 25 of the Act were not complied with by the First, Second and Third Respondents. The Court therefore answers the issues raised by Mrs Nari in (a), (b) and (c) all to be in the negative.

14.1 The fourth issue in (d) concerns parties rights to raise objections and whether this was limited only to qualifications of adjudicators and secretary. The relevant legal provision is section 26 (5) of the Act which states –

"If a party to a dispute fails to follow any of the procedures under this Act, another party to the dispute may apply to the land tribunal for an order directing the party to comply with the procedure."

14.2 Simeon Stanley deposed to writing three letters of objections to the lands tribunal two of which he annexed as "B" and "D" to his sworn statement dated 8th May 2012. Those letters amounted to applications required under Section 26 (5) of the Act. It was necessary and encumbent upon the Lands Tribunal to have formally considered those objections as and when they were received. Regrettably it appears the Land Tribunal in question received advice to the contrary and rejected or failed to deal with those objections raised. That failure and/or omission amounted to non-compliance with the requirement of Section 26 (5) of the Act. The Court therefore answers the issue in (d) in the negative.

15. The fifth issue raised in (e) concerned two members of the Lands Tribunal who were not on the approved list but were allowed to sit as adjudicators. The applicants did not produce any evidence to show the list of approved adjudicators. The respondents have not assisted the Court either. Therefore the court is unable to answer this issue. If indeed and fact Serilo Palaud and Martino John do not appear on the approved list of adjudicators then it is only proper and sensible they do not sit as adjudicators either for this dispute or other dispute.

16.1 The sixth and final issue concerns the format of the judgment. The relevant legal provision is section 34 (1) of the Act which provides for records of decisions and states –

"(1) The Secretary of a land tribunal must record the tribunal's decision in the form set out in Schedule 3, and on it being signed by the Chairperson and Secretary it constitutes an accurate record of the decision for all purposes".

16.2 The decision annexed as "E" to the statement of Simeon Stanley and as "AV5" to the statement of Alicta Vuti are record of decision of the Land Tribunal in question that are in accord with Schedule 3 of the Act. The details or information required by the Form in Schedule 3 are only summaries. There is nothing in the Act limiting a Lands Tribunal from publishing a full judgment. However where this is done, it must –

(a) be signed by the Chairperson and the Secretary or every member of the tribunal; and

(b) It must be the same date as appearing in paragraph 6 of the Form.

16.3 In the present case the written judgment is not signed and it bears the date 15th February 2012. Clearly it suggests that this judgment was made some 8 days well before the land tribunal commenced sitting on 23 February 2012. As such the purported judgment is questionable and cannot be a valid judgment. Accordingly it is declared null and void and of no legal effect. Similarly the decision of the Lands Tribunal dated 14th March 2012 is also declared null and void and of no legal effect.

Conclusions:

17. The applicants succeed in their application for judicial review. The decision of the Land tribunal dated 14th March 2012 is hereby brought up and quashed. The Land Tribunal is hereby Ordered to be reconstituted with different members to reissue appropriate notices to all disputing parties and interested parties and to sit to hear the dispute afresh. The applicants are entitled to their costs of and incidental to the action against all the respondents jointly and severally on the standard basis as agreed or determined by the Court.

DATED at Luganville this 27th day of November 2012.

BY THE COURT

OLIVER A. SAKSAK
Judge.