Tari v Banga [2015] VUSC 117; Land Appeal Case 01 of 2014 (28 August 2015)

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

Land Appeal Case No. 01 of 2014

IN THE MATTER OF: MOLIKAKALIVATU LAND DISPUTE

AND

IN THE MATTER OF: The decision of the Ambae Island Court in Land Case No. 02 of 1998

BETWEEN:

MANLEY TARI & FAMILY
Appellant

AND:

ISON BANGA & FAMILY
Respondent

Coram: Justice D. V. Fatiaki, Jif Timothy Taitai and Jif Walter Toa as assessors

Counsel: Mr. J. Tari for the Appellant
Mr. G. Boar for the Respondent

Date of Delivery: 28 August 2015

JUDGMENT

1. This is an appeal against a decision of the Ambae Island Court delivered on 4 July 2012 declaring that Ison Banga and his descendants are the customary owners of the land of Molikakalivatu situated in Redcliff area in South Ambae.
   
2. The initiating claim by the respondent to Molikakalivatu land was advertised by the Island Court on 25 February 1999. In accordance with Order 6 Rule 8 of the Island Court (Civil Procedure) Rules 1984 the advertisement called upon all persons interested in claiming the land to apply to be joined as a party. It is common ground that the respondent's claim to Molikakalivatu land remained undisputed and unchallenged until 2 July 2014 two days before it was due to be heard by the Ambae Island Court when the appellant, with leave of the Island Court, was permitted to be joined as a counter-claimant.
   
3. Such a late joinder at the last minute 15 years after the initiating claim was publicized was clearly in breach of Rule 8 which requires a counterclaim to be made "... as soon as possible ..." after the publication and would have provided good cause for the respondent to seek an adjournment of the hearing of his claim. However, no objection was raised by the respondent and the matter was listed for trial before the Ambae Island Court on 4 July 2014. The trial commenced at about 4.30 pm on 4 July 2014 and the appellant therefore had a day and a half to prepare his claim and assemble his witnesses and evidence.
   
4. On 4 July 2014 the Island Court judgment records that:
   

"(the appellant) made another application to the court entirely withdrawing his intention to counterclaim ownership of (Molikakalivatu land). Having done so, the original claimant's (ie. the respondent) case continued to remain undisputed".

The appellant took no further part in the proceedings which was concluded in the respondent's favour after the Island Court was satisfied "... that Isom Banga and witnesses have substantiated sufficient evidence proving that the claimed land truly belongs to his family and descendants".

The above is the factual matrix and context within which the appeal must be considered.

5. Given that factual context we would merely observe without deciding that it is arguable that the appellant, who is recorded as having withdrawn his counterclaim before the Island Court, is not "... a person aggrieved by an order or decision of (the Ambae Island Court)" within the terms of section 22 of the Island Courts Act [CAP. 167], and therefore lacks the necessary standing or capacity to bring the appeal.
   
6. Be that as it may, the appellant advances two grounds in support of his appeal.
   
   • (a) The appellant requested an adjournment of the case because most of the witnesses of his family were at that time not able to attend but the court refused his request; and
     
   • (b) The only two witnesses that were present were threatened by the respondent and were afraid of telling the true story of the appellant.
     

As to ground (a) – the refusal of the appellant's adjournment application – the only self-serving evidence provided is that deposed by the appellant that he had requested an adjournment but the court refused his application. As for the recorded withdrawal of his claim the appellant states:

"... that is not what I intent (sic) to do. I did not want to participate in the Molikakalivatu case simply because of the unfairness, threats, intimidations and harassment in the case of Kwalsuku".

7. We say "self-serving" because nowhere in the Island Court's judgment or appeal record compiled by the appellant is there any record of the appellant ever making an application for an adjournment of the case and it being refused by the Court. In this regard reliance was placed on paragraph (c) of the respondent's sworn statement. That paragraph reads:
   

"(c) Since the appellant has 4 witnesses present, there was no need to ask for adjournment since I was ready to proceed and all his (the appellant's) witnesses knew the time and date for hearing and were present".

We do not consider the above paragraph provides independent confirmation that an adjournment application was made by the appellant and was refused, indeed, the converse is more likely.

8. Despite the absence of the Island Court record or trial transcript which it was the duty of the appellant to provide to this Court, the appellant could have sought independent written confirmation from the Island Court clerk who was present throughout the proceedings and who could have deposed to the fact of his adjournment application being made if it had occurred. Unfortunately this was not done.
   
9. In the absence of independent corroboration of the appellant's assertion that he had requested an adjournment which was refused we are not satisfied that any such request was made or refused. Furthermore, given the appellant's own sworn statement that he "... did not want to participate in the Molikakalivatu case ...", there does not appear to be any logical or reasonable basis for him to seek an adjournment of a proceeding that he no longer wished to participate in.
   
10. We dismiss the first ground of appeal as unsubstantiated.
    
11. As for ground (b) – the threatening and intimidation of the appellant's two witnesses Japhet Kalo and Edwin Silas – given the factual context earlier described and the sworn assertion by the appellant that he "... did not want to participate in the Molikakalivatu case ..." reinforced by the absence of any police complaint, we have no hesitation in also dismissing the second ground of appeal as unmeritorious and unsubstantiated.
    
12. Needless to say if the appellant had truly intended to participate and continue as a counterclaimant in the Molikakalivatu case as he now professes in his sworn statement before this Court then he would, at the very least, have given evidence in support of his counterclaim to Molikakalivatu land. The fact that he did not do so speaks volumes of his real intentions at the time and provides considerable support for the view expressed by the Island Court in its judgment.
    
13. Having dismissed both grounds advanced by the appellant, this appeal must be and is hereby dismissed with costs in favour of the respondent which we summarily fix at VT100,000 to be paid within 28 days of the date hereof.
    

DATED, this ... day of June, 2015.

BY THE COURT

......................... Jif Timothy TAITAI (Assessor)	....................... Jif Walter TOA (Assessor)
........................ D. V. FATIAKI Judge.