Toatau v Manlaewia [2021] VUSC 275; Civil Appeal Case 2824 of 2020 (30 August 2021)

IN THE SUPREME COURT OF Civil Appeal Case

THE REPUBLIC OF VANUATU No’s 20/2824 and 20/3037

(Civil Appellate Jurisdiction) SC/CIVA

CAC 20/2824 BETWEEN: Matova Toatau & Descendants

Appellant

AND: Henry Cyrel Kalsurai Manlaewia

First Respondent

AND: Ernest Kaloris & Descendants

Second Respondent

AND: Vamele Family

Third Respondent

CAC 20/3037 BETWEEN: Ernest Kalorisu & Descendants

Appellant

AND: Henry Cyrel Kalsurai

First Respondent

AND: Matova Toatau & Descendants

Second Respondents

AND: Vamele Family

Third Respondent

Date of Hearing: 9 August 2021

Before: Justice V.M. Trief

In Attendance: Matova Toatau & Descendants, Appellant in CAC 20/2824 – Mrs C.T. Gesa

Ernest Kalorisu & Descendants, Appellant in CAC 20/3037 – Mr S. Kalsakau

Henry Cyrel Kalsurai Manlaewia, First Respondent in all CACs – Ms L. Raikatalau

Vamele Family, Third Respondent in all CACs – no appearance (Mr D. Yawha)

DECISION AS TO APPLICATION TO DISQUALIFY ASSESSOR

1. On 21 July 2021, the Appellant in CAC 20/3037 Ernest Kalorisu and Descendants filed Application to Disqualify Assessor Robie Peter Sogomapua on the ground of apprehended bias and supporting sworn statement of Earnest Kalorisu.
   
2. I note as a preliminary matter that that I am not functus officio and can revisit my order appointing an assessor, this being a matter of process and protecting the integrity of the Court’s process: Republic of Vanuatu v Natonga [2016] VUCA 28.
   
3. No submissions or evidence was filed in response.
   
4. By his sworn statement, Mr Kalorisu evidenced that he, Mr Sogomapua and the First Respondent Henry Cyrel Kalsurai are or have been members of the Vaturisu Council of Chiefs (the ‘Council’). Mr Sogomapua and Mr Kalsurai were members of the Executive of the Council from 2013, the former as Treasurer and the latter as Chairman.
   
5. Mr Kalorisu evidenced that he attended 4 Council meetings: at Epau in 2013, at Pango in 2014, at Emau in 2018 and at Emua in 2021 where he witnessed the members of the Executive of the Council usually having meetings together and when the whole Council has a meeting, that members of the Executive share living quarters separate from ordinary members of the Council. He saw that Mr Sogomapua and Mr Kalsurared the same living ving quarters at the 2018 meeting at Emau. Both were in attendance at the recent 27 June-1 July 2021 meetinEmua and Mr Kalsurai made remarks about the appeals in this matter. During the lunch break,reak, Mr Sogomapua said to Mr Kalorisu words to the effect that, “bae mifala nao I jes lukluk kes blong yufala”.
   
6. The test for apprehended bias iias is whether a fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions which the Court was required to decide: Matarave v Talivo [2010] VUCA 3.
   
7. Mr Kalsakau submitted that given Mr Kalorisu’s evidence, a fair minded lay observer would reasonably consider that Mr Sogomapua might not bring an impartial mind to the questions which the Court was required to decide in the current appeals. Accordingly he should be disqualified and the Court appoint a different assessor.
   
8. Ms Raikatalau submitted that Mr Sogomapua’s words to Mr Kalorisu merely confirmed the fact of Mr Sogomapua’s appointment as an assessor in the current appeals; they did not show bias. Further, that all three of Mr Kalorisu, Mr Sogomapua and Mr Kalsurai are members of the Council therefore Mr Sogomapua should not be disqualified. Finally, that Mr Sogomapua and Mr Kalsurai’s history together confirms the former’s knowledge of custom.
   
9. Having heard counsel and having considered the documents filed, I accept that Mr Soga and Mr Kalsurai are bore both from Efate island, both were members of the Executive from 2013 to 2019, they have had Executive meetings throughout that time, have shared living quarters during Council meetings and oved over the years, Mr Kalsurai has given updates about the Manlaewia chiefly title dispute to the Council. In the circumstances, I consider that a fair minded lay observer would reasonably apprehend that Mr Sogomapua, as an assessor in the current appeals, might not bring an impartial mind to the resolution of the questions which the Court was required to decide.
   
10. Accordingly, I order that pursuant to s. 26 of the Island Courts Act, Mr Sogomapua is disqualified from hearing the appeals in the present matters. My order for his appointment as an assessor is set aside.
    
11. Having considered the list of Island Court Justices for the Efate Island Court that was provided to me in February 2021, the remaining justice who is from mainland North Efate is Timothy Kalangis. I note that the First Respondent’s Response to List of Assessors contains the objection that Mr Kalangis is not knowledgeable in North Efate custom relating to chiefly titles determination. However, the other justices on the list being from South Efate, Efate offshore islands or other islands, I therefore appoint Timothy Kalangis as assessor in this matter notwithstanding the objection made.
    
12. If any party wishes to contest the appointment of Mr Kalangis, they are to do so by filing and serving the requisite Application and sworn statement in support.
    

DATED at Port Vila this 30^th day of August 2021

BY THE COURT

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

V.M. Trief

Judge