Manie Family v Veremaito [2020] VUSC 55; Judicial Review 881 of 2017 (7 April 2020)

IN THE SUPREME COURT OF Judicial Review

THE REPUBLIC OF VANUATU Case No. 17/881 CVL/JR

(Civil Jurisdiction)

BETWEEN: Bule Manie Family

Claimant

AND: Roger Veremaito

First Defendant

Republic of Vanuatu

Second Defendant

Central Malekula Custom Area Tribunal

Third Defendant

Date: 7 April 2020

Before: Justice G.A. Andrée Wiltens

In Attendance: Mr R. Kapapa for the Claimant (absent)

Ms M. Nari for the First Defendant

SLO for the Second and Third Defendants (absent)

JUDGMENT

1. This is an application for judicial review and seeking an extension of time.
   
2. Today was the scheduled Rule 17.8 Conference. There was no appearance by or for the Claimant.
   
3. This case, in the manner it is presented to the Court, takes some understanding. Things start with Land Appeal Case no. 5 of 1984, which resulted in a decision of 5 July 1988 by Chief Justice Cooke to grant customary ownership over Retelemb land, shown in an appended sketch plan, in Lakatoro. Justice Cooke was unable on the evidence, which he traversed including scrutinising an 1883 Deed of Disposition, to identify a sole custom owner. Accordingly, he determined that Family Kenneth Kaltabang, Family Sandy Malror and Family Sato Kilman should be declared to be the joint custom owners. Chief Justice Cooke specifically held that the descendants of other persons named in an 1883 Deed transferring ownership of the land had no rights to the land as they had made no claim. However, on the basis that it was possible that descendants of those excluded persons might have a claim, Justice Cooke kept open their possible claims.
4. The Claimant states that the National Coordinator of the Customary Land Management Office subsequently issued a decision of 16 December 2011 to issue a Certificate of Recorded Interest in Land to Mr Veremaito in relation to the same land. The Claimant is of the view that the procedure adopted was flawed, and that no notice of the case had been properly provided. In the application, for reasons unknown, there is reference to this being determined on 24 December 2016. He seeks to set aside that decision.
   
5. The Claimant also challenges a 20 June 2014 decision of the Custom Area Land Tribunal, which is recorded in Bislama. He states this case related to land known as Tenevun/Temboko. As Retelemb was not involved, his family did not participate in that case. Subsequently he states he has learned that Mr Veremaito was granted a Green Certificate in relation to Retelemb as a result of that case. He complains that no notice of this matter involving Retelemb land was afforded to him. He seeks to set aside that decision also as being ultra vires and res judicata.
   
6. The Claimant seeks a “...quashing order of the whole judgment of the [Third Defendant], the corticated [sic] issued pursuant to the judgment.” I assume he is seeking to set aside the Green Certificate issued to the First Defendant.
   
7. The Claimant also seeks an order that if the custom ownership of Retelemb land remains in dispute that the matter will be dealt with under the Land management Act or the Custom Land Management Act .
   
8. An extension of time is required as judicial review is ordinarily only available within 6 months of a decision. This judicial review application was filed on 7 April 2017 – so it is very late. No real explanation for the delay is proferred, save that no notice was given of the hearings.
   
9. Today’s hearing was for the Court to consider the matters set out in Rule 17.8 of the Civil Procedure Rules, namely has the claimant an arguable case, is the claimant directly affected by the decision, has there been undue delay and is there no other available remedy?
   
10. I note that the last step taken in relation to this case is a Minute dated 2 August 2018 which required, among other things, the Claimant to advise the Court of the outcome of an apparently related matter Civil Case 16/3885, which was then scheduled to be heard on 16 August 2018.
    
11. I note that Ms Nari has filed a sworn statement by Mr Veremaito in which it is stated that the Custom Area Land Tribunal case was a final appeal. Mr Veremaito stated that the Claimant had attended the first hearing in 2011 but had then withdrawn. Further, he stated that the issue of borders in respect to the disputed land was resolved by the Supreme Court in JR 12/13. He also challenges the standing of Family Malmor who claims to be representing Bule Manie Family.
    
12. Unfortunately, there was no appearance by or for the Claimant to try and understand the allegations better.
    
13. Subsequent to the hearing, Mr Aron has filed additional information to the effect that Justice Felix, on 7 May 2018, ordered the Claimant to pay wasted costs by 11 May 2018. This was for not complying with the State Proceedings Act (“SPA”). Justice further directed the Claimant comply with the SPA. The Claimant has yet to do either. Justice Felix, on 3 August 2018, further directed the Claimant to advise the Court on the progress of Civil Case No. 16/3885; and advise the Court whether this present matter was to proceed or be discontinued. The Claimant has also not complied with either of those directions.
    
14. In summary, I am confused and have difficulty in understanding the Claimant’s allegations. However, I readily see that this matter is old, that a number of previous Court directions have not been complied with, and that the Claimant has taken no steps in this matter for an inordinate period.
    
15. In all the circumstances, pursuant to Rule 9.10(2)(b) this claim is dismissed.
    
16. Ms Nari is entitled to the costs of defending this matter, which I hereby set at VT 50,000. That is to be paid within 28 days.
    

Dated at Port Vila this 7th day of April 2020

BY THE COURT

.................................................

Justice G.A. Andrée Wiltens