Boetokorua v Vombanici [2014] VUSC 209; Civil Case 56 of 2010 (28 November 2014)

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

Civil Case No. 56 of 2010

BETWEEN:

MOLI BOETOKORUA
Claimant

AND:

VOMBANICI AND EREHI
First Defendants

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
Second Defendant

AND:

WILLIAM SUMBUETOVI representing FAMILY SUMBUETOVI
Third Defendant

Coram: Mr. Justice Oliver A. Saksak
Counsel: Mr. George Nakou for Claimant
Mr. Kiel Loughman for First Defendant
Ms Florence Williams for Second Defendant
Mrs. Marisan Vire for Third Defendant

Date of Hearing: 24th April 2014
Date of Decision: 28th November 2014

DECISION

1. The applicant, William Sumbuetovi (Third Defendant) filed an application on 18th February 2014 seeking Orders that –
   
   1. Paragraph 1 of the Order of this Court in CC 56 of 2010 be amended by removing the words "Area Land Tribunal" and replacing same with "Joint Village Land Tribunal."
      
   2. The Area Land Tribunal Decision of 12th September 2012 be quashed.
      
   3. The registration of the Area Land Tribunal Decision of 12th September 2012 with the Second Defendant be cancelled.
      
   4. Costs of the application; and
      
   5. Other Orders deemed appropriate.
      
2. The application is supported by the sworn statement of the applicant filed on the same date.
   
3. On 23rd April 2014 only Mr. Loughman and Ms Williams were present. Counsel sought directions that the Third Defendant file their written submissions within 21 days and the Claimant, First and Second Defendants file their responses within 14 days thereafter, and that the Court would deliver its decision on a date to be fixed and notified.
   
4. The Third Defendant (as applicant) filed his written submissions on 30th May 2014. The Second Defendant filed written submissions on 26th June 2014. The Claimant and First Defendant have not filed any written submissions. The Court will dispense with their submissions.
   
5. The application by the Third Defendant is hereby dismissed in its entirety for the following reasons –
   
   • (a) It is unnecessary as the error he complains of at paragraph 4 of the Order dated 29th April 2011 are already rectified by the Judgment dated 1st February 2011. The Judgment preceded the Orders and they override the Orders.
     
   • (b) The application for corrigendum was filed more than two years after the Orders of 29th April 2011 were issued. Paragraph 5 of the Orders gave liberty to Parties to apply on 48 hours notice in respect of any further Orders. The applicant was not a party to Civil Case No. 65 of 2010 then but he was a party to Civil Case No. 11 of 2010 which was filed before Civil Case No. 65 of 2010. The Judgment dated 1st February 2011 was made in his favour. As the complainant it was encumbened on him to take immediate steps to have the Joint Village Land Tribunal to reconvene. However, it appeared he simply sat on his right and waited for something to happen.
     
   • (c) The application is misconceived and is an abuse of process because it goes further to seek quashing and cancellation Orders which are normally sought in a judicial review application. His application was not a judicial review application.
     
   • (d) The Customary Lands Tribunal Act has now been repealed. There is now in existence a new Custom Land Management Act. Clearly under the new Act, it wouldn't make any difference whether the "corrigendum" is or is not made. The fact appears to be that Vunapaka Land is still in dispute and it must now make progress under the provisions of the Land Management Act.
     
6. Accordingly, the application is dismissed with costs in favour of the Second Defendant only, on the standard basis as agreed or taxed by the Court.
   
7. There are Costs Orders dated 5th February 2014 which the Claimant and Third Defendant (applicant) must discharge if they have not already done so.
   

DATED at Luganville this 28th day of November 2014.

BY THE COURT

OLIVER A. SAKSAK
Judge