Tuai v Namasmitane Land Tribunal [2013] VUSC 194; Civil Case 74 of 2011 (1 November 2013)

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

Civil Case No. 74 of 2011

BETWEEN: NATUMAN TUAI
NUI NASAK
JIMMY IALIS
TONI NATUMAN
NOULA IOUPAT
NIPIO IOKATILIM
CHARLY NATUMAN TUAI
JAMES IALU
JOHNSON NATUMAN
WILLIE TIRU
First Claimants

AND:

NISIKAPIEL TUAKA
JIMMY N. TUAKA
JOSEPH TUAKA
JOHNSON TUAKA
Second Claimants

AND:

NAMASMITANE LAND TRIBUNAL represented by JIMMY TOM LUME as chairman, GEORGE NOKA and NIAU IANARIMA as members
First Defendant

AND:

JOHNNY KUAIH LANGO
Second Defendant

AND:

CHARLIE NANGO
Third Defendant

Coram: Justice D. V. Fatiaki
Counsels: Mr. W. Kapalu for the claimants
Mr. K. Nathan for the first defendant
Mr. J. Kilu for the second and third defendants

Date of Decision: 1 November 2013

JUDGMENT

1. This is a judicial review application by the claimants to quash a decision of the Namasmitane Land Tribunal dated 10 February 2011 declaring the second and third defendants joint custom owners of customary land at West Tanna on which the Whitegrass airport extension is situated.
   
2. The relevant decision Form on which the defendant tribunal’s decision is written describes the name of the disputed land (at paragraph 9.a) as: “Naka Ialo Assuasmin tribe” which is not the name of any customary land but the name of the tribe that allegedly owns it.
   
3. The Form also records at (9.d) the tribunal’s awareness of an “illegal” registered lease title over the said land in the name of Natuman Tuvai (the first-named claimant) on which the Whitegrass airport extension is built.
   
4. The application was filed within time on 29 April 2011 (see: the court’s observations in Kaun v. Lingarak and Limap Village Joint Land Tribunal [2012] VUSC 12 at paragraphs 19 and 20). It advances numerous grounds challenging both the setting up and composition of the defendant Tribunal, as well as, the procedures adopted by the tribunal in breach of the provisions of the Customary Land Tribunals Act (“the CLT Act”).
   
5. There is also a claim that one of the tribunal members had a “conflict of interest” and was “biased” in his decision and a complaint that the claimants were completely unaware of the proceedings nor did they receive any notice of a dispute concerning the land in question.
   
6. In his sworn statement in support of the application the first named claimant relevantly deposed:
   

“3. I wish to inform the court that my family and I have lived at Naka ne tribe from generations to generations and have cultivated the said land to date.

4. ...

5. I wish to inform the court I have never heard of the setting up of the purported first defendant tribunal.

6. I have never heard that the purported tribunal will be adjudicating on our custom land.

7. I have never heard that the purported tribunal has made a decision on our custom land until on 13th April 2011 when I received a copy of the purported decision. ...

8. I must say that I have never nor my family members have received any written notice of hearing of a dispute concerning our customary land.

9. After receiving the said decision I realize that the purported tribunal was from middle bush area and not on the west of Tanna where we lived.

10. When I read through the said decision and the minutes I realize my name in the minute but I was not notified to present my case as my family and I were permanently living on the said land from generation to generation and to date. We have our homes there and we have lease portion of the said land. I attached and marked as Annexure NT2 true copy of the advice of registration of leases on our land.

11. Part of our land was acquired by the government for the extension of the airport and we were paid compensation for that.”

7. The defendants were ordered on several occasions to file and serve responses and sworn statements and a sworn statement was eventually filed by Alicta Vuti a Senior Lands Officer at the Customary Lands Unit who produced a copy of the decision and the minutes kept of the defendant tribunal’s hearing of the claim.
   
8. Given the numerous complaints made against the establishment of the defendant tribunal a longer sworn statement than the 7 single sentence paragraphs, might be expected. Furthermore, the sworn statement refers interalia to “... (unidentified) records of the Land Tribunal Office”, yet none was produced or annexed to the sworn statement as might be expected.
   
9. The bald assertion that the “... defendant tribunal was constituted to determine ownership of custom land known as “Nako Ialo Assuasmin ...” is unhelpful, and whatsmore is not independently verified by an official “approved list of chiefs and elders” as it should be.
   
10. Indeed, it appears to be contradicted by the existence of two (2) undated dispute notices (1) in September 2010 under the hand of Chief Nakat Kilalplapen chairman of the West Tanna Land Tribunal, the fate of which is unclear, and (2) a subsequent notice of the defendant tribunal almost a year later in December 2011 which deals with exactly the same disputed area, namely “... se area we extension blong White Grass aireport i stap long hem”.
    
11. Of even greater concern, however, are the recorded opening remarks of the chairman of the defendant tribunal as to why the defendant tribunal should continue to hear the dispute, when he said:
    

“No matter we procedure i blong Tanna tribunals system hemi weak or ino established yet ... Namasmitane imas harem case ia from se no matter system blong land tribunals blong Tanna ino established especial ol tribes mo ino allowem nating blong wan man or wan woman olsem Natuman Tuai (the first named claimant) igat wan title we hemi illigal or no gat any declarations by tribunal”.

12. If I may say so the chairman’s remarks lends considerable support for claimant’s counsel’s submissions that: “the Land Tribunal office in Port Vila has written a letter stopping all tribunals on Tanna until further notice”, and further, “... that the tribunal on Tanna has not yet been set up”.
    
13. Whatsmore the fact that the claimants’ registered leasehold title over part of the disputed land is described as “... illigal ...” by the Chairman of the defendant tribunal suggests some “pre-judgment” on his part as well as, a “perceived bias” against the first-named claimant the lessee of the land.
    
14. The second defendant Johnny Lango also belatedly filed a sworn statement in which he disclosed that the claimants’ lawyers had written in September 2010 to the secretary of the Nikoletan Council of Chiefs challenging the setting up of the West Tanna Land Tribunal long before the present proceedings were commenced. Also annexed to the sworn statement is an unstamped unverified document that purports to contain the names of persons approved to sit on the defendant Tribunal.
    
15. I say purports advisedly because the document does not on its face identify the village(s) or custom area(s) or sub-area(s) that it relates to nor is it disclosed anywhere in defendant’s sworn statements how the 3 members of the defendant tribunal were selected from the 16 names in the list.
    
16. No effort was made in the sworn statement to answer the various matters raised in the claimants’ sworn statement (op. cit) esp as to the name of the customary land; the fact of the claimants’ long occupation and cultivation of the land and the existence of the claimants’ registered lease(s) over part of the disputed land.
    
17. Of particular significance, are the undisputed assertions of the claimants that the land in question extends over two (2) villages namely Imanaka and Isaka and is located on the coast of West Tanna whereas the defendant tribunal sat in Middle Bush area inland and is composed of members who do not come from the area where the disputed land is situated.
    
18. I am grateful for the written submissions of counsels. In this regard counsel for the defendant Tribunal relying on the decision of the Court of Appeal in West Tanna Area Council Land Tribunal v. Natuman and Others [2010] VUCA 35 agrees to abide the orders of the Court whilst leaving it to the claimants and the second and third defendants to take opposite sides of the argument.
    
19. Counsel for the second and third defendants who were successful claimants before the defendant tribunal vigorously opposed the application on the basis that the claimants had “no arguable basis” to complain against the establishment of the defendant Tribunal or its membership because the claimants voluntarily chose not to participate in the proceedings and make their objections (under section 26 of the CLT Act) directly to the defendant tribunal, accordingly, defence counsel submits: “... they are now estopped from complaining”.
    
20. Given the particular nature of the complaints about the establishment, composition, and jurisdiction of the defendant tribunal, I cannot agree with the defence submission which assumes (without proof), the legality of the defendant Tribunal.
    
21. I am fortified by the judgment of the Court of Appeal in Taliban v. Worwobu [2011] VUCA 31 where the Court in allowing the appeal and in rejecting a submission in almost identical terms to the above, said:
    

“5. If the Land Tribunal was not lawfully constituted then Mr Taliban had nothing to which he needed to object.

6. While Mr Taliban could have appeared before the Land Tribunal and voiced his objection to any or all of the members of the Land Tribunal (pursuant to his rights under section 26 of the CLT Act), he will have lost nothing by staying away providing that it is eventually determined that the Land Tribunal was not lawfully constituted in the first place. It must be said that there are significant risks in the strategy adopted by Mr Taliban.

7. It was necessary for the Supreme Court to address the issue of whether the Land Tribunal was lawfully constituted before it could consider the consequences of Mr Taliban's decision not to attend the hearing and, more specifically, not to attend and voice his objection to the individual members of the Land Tribunal.

8. When a Court is faced with such an objection to the constitution of a land tribunal, it is necessary to have regard first and foremost to sections 35, 36 and 37 of the Customary Land Tribunal Act.

9. By those sections, the council of chiefs for a particular area (whether a custom area or custom sub-area) is required first to determine the boundaries of the area under its customary regulation (to adopt the terminology employed by s.3 of the Act). That council of chiefs is then required to approve a list of those chiefs and elders who are considered qualified (as defined) and acceptable to adjudicate on disputes as to the boundaries or ownership of custom land within that area. These are mandatory requirements ... essential to the establishment of any village land tribunal under ss 7 - 9.

10. ...

11. In order to determine whether this Land Tribunal was lawfully constituted, and accordingly whether its decision is valid, it will be necessary for the Supreme Court first to ascertain which particular council of chiefs had "customary regulation" over the land in question. Once that is established, it will then need to determine whether the members of the land tribunal in question were, in each case, drawn from the list of approved adjudicators compiled by that particular council of chiefs. Finally, it must be satisfied that the necessary procedural steps (the giving of public notice and suchlike) have been taken pursuant to ss 7 - 9. This is a different issue to whether a land tribunal has conducted itself correctly under Part 6 of the Act."

(my underlining)

22. In the present case the evidence about the formation of the defendant tribunal is extremely sparse and, in my view, non-compliant with Sections 35, 36 and 37 of the Customary Land Tribunals Act.
    
23. If I may say so, the lawfulness of the setting up of the defendant tribunal as to both its membership and area(s) of jurisdiction should be well-documented and readily available as a matter of public record (see: in this regard gazetted Ministerial Order Nos. 18, 19, 21, 25 & 50 under the Customary Land Tribunal Act).
    
24. For the foregoing reasons I am not satisfied that the defendant tribunal was lawfully established in accordance with the Customary Land Tribunals Act and therefore its decision must be and is hereby quashed.
    
25. Given the above, it is not appropriate to order a rehearing of this claim which must be commenced anew before a new tribunal established in accordance with the provisions of the Customary Land Tribunals Act.
    
26. The claimants having succeeded in this judicial review application are awarded costs to be paid jointly by the second and third defendants to be taxed if not agreed.
    

DATED at Port Vila, this 1st day of November, 2013.

BY THE COURT

D. V. FATIAKI
Judge.