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Court of Appeal of Vanuatu |
IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)
CIVIL APPEAL NO. 31 OF 2010
BETWEEN:
CHIEF PHILIP ENBUE
Appellant
AND:
FAMILY WILLIAM BRAS, FAMILY KENSY ARTHUR, FAMILY SHEM RUBEN, FAMILY ROBERT ABEL
First Respondents
AND:
CHIEF OWEN RION
CHIEF TEMO SAITY
Second Respondents
Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John Mansfield
Hon. Justice Daniel Fatiaki
Hon. Justice Robert Spear
Hon. Justice Raynor Asher
Counsel: Mr C Leo for the Appellant
Mr K Loughman for the Respondents
Hearing: 31 March 2011
Decision: 8 April 2011
REASONS FOR JUDGMENT
The nature of the proceeding
[1] This application for leave to appeal, and appeal, is procedurally misconceived. That is because it relates to a judgment of the
Supreme Court on review of a decision of a Customary Land Tribunal. The jurisdiction of the Supreme Court to hear that appeal comes
from s. 39 (2) of the Customary Land Tribunal Act [CAP 27].
Section 39 (2) and (3) provide:
"(2) If a land tribunal fails to follow any of the procedures under this Act, a party to the dispute may apply to the Supreme Court for an order:
a) to discontinue the proceedings before the tribunal or to cancel its decision; and
b) to have the dispute determined or re-determined by a differently constituted land tribunal.
(3) The Supreme Court in determining an application may make such other orders as it considers necessary."
Section 39 (4) then provides:
"(4) Subject to the Constitution, the decision of the Supreme Court on any application:
a) is final and conclusive; and
b) is not to be challenged, appealed against, reviewed, quashed, set aside or called in question in any court on any ground."
[2] That is quite clear. There is no right of appeal from the Supreme Court to this Court from a decision of the Supreme Court exercising jurisdiction under s. 39 of the Customary Land Tribunal Act. Nor is there any provision by which a party to such a proceeding may seek leave to appeal to this Court, nor any power in this Court to give such leave to appeal. Section 48 (1) of the Judicial Services and Court Act [CAP 270] provides that, subject to the provisions of that Act and any other Act, the Court of Appeal has jurisdiction to hear and determine appeals from judgments of the Supreme Court. Section 39 (4) of the Customary Land Tribunal Act is one provision which limits that jurisdiction.
[3] There is a provision similar to s. 39 (2) of the Customary Land Tribunal Act in s. 22 of the Island Courts Act [CAP 167]. We do not see any material difference between the two provisions.
[4] Section 22 (2) of the Island Courts Act was considered in Matarave v. Talivo [2010] VUCA 3; Civil Appeal Case 1 of 2010 at pages 5 to 6. As the Court of Appeal pointed out, there may be circumstances in which the Supreme Court sitting on an appeal from an Island Court did not exercise the jurisdiction which it was given. To exercise its jurisdiction, it must be properly constituted. If there are circumstances in which a member of the Supreme Court as constituted (in that case, one of the assessors required by s. 22 (2) of the Island Courts Act) was not eligible to participate in the decision, the Supreme Court will not be properly constituted. There may be other matters which may indicate that, in the particular circumstance, the Supreme Court did not have the jurisdiction to proceed as it did. It is not necessary to explore on this application all of those circumstances. If there is a failure to exercise its jurisdiction, the Court of Appeal may quash the orders made and require the Supreme Court to exercise its jurisdiction. We consider that the same considerations apply when the Supreme Court is required to hear an appeal under s. 39 of the Customary Land Tribunal Act.
[5] Where a party has such a complaint, the proper course is to apply to the Court of Appeal for an order quashing the orders of the Supreme Court on the ground that it had no jurisdiction to make them. It must be emphasized that a complaint about the Supreme Court making a mistake of fact or misapplying the law or exercising a discretion in error will not demonstrate a lack of jurisdiction on its part, but (assuming it is established) will be an error within jurisdiction from which no appeal lies: see Tula v. Weul [2010] VUCA 33; Civil Appeal Case No. 17 of 2010.
[6] In this instance, we have come to the view that the primary judge simply did not have the power to make the orders he did on 18 November 2010, so in effect there were no effective orders at all. An example of such a case is Keen v. Telstra Corporation Ltd [2006] FCA 834; (2006) 230 ALR 313. The basis for our intervention is therefore consistent with what the Court of Appeal said in Matarave v. Talivo (above).
[7] For the sake of convenience we shall continue to call the appellants and the first respondents by that description in these reasons.
The Importance of Custom Land
[8] The Constitution of the Republic of Vanuatu recognises the importance of custom land to its people. Chapter 12 "Land" contains Articles 73 to 81 dealing with that topic. Article 73 provides that all land in Vanuatu belongs to the indigenous custom
owners and their descendants. Article 74 provides that the rules of custom shall form the basis of ownership and use of land in Vanuatu.
Article 78 (2) provides for appropriate customary institutions or procedures to resolve disputes concerning the ownership of custom
land.
[9] Both the Island Courts Act and the Customary Land Tribunal Act are intended to give effect to those aspirations and to those fundamental values underlying the society of Vanuatu. They provide for the custom owners of land to be determined in accordance with custom law, provided that the processes of the custom tribunals established under those Acts proceed in accordance with the law. The appeal to the Supreme Court provided in each of those Acts is to ensure that, ultimately, persons who claim to be custom owners to land have their claims decided under custom law but also by procedures prescribed by law, including that they are given natural justice (or procedural fairness as it is often now called).
[10] Natural justice involves two basic rights: the right to be notified of the hearing, and to have a fair opportunity to present evidence and arguments to the custom tribunal; and secondly the right to have the decision made by an independent custom tribunal. An independent tribunal is one which has no members who have a personal interest in the outcome of the decision they are asked to make. A tribunal member may have such an interest because that person, or his family or close relatives or close friends may have an interest in the custom land or may claim to do so. That is what the appellants are concerned about in this matter. If that is the case, it is not enough for the custom tribunal member to think that he can nevertheless decide the claim independently. It is necessary to prevent that person being a member of the custom tribunal deciding that particular claim if a reasonable person, knowing the facts, might reasonably think that that person might not bring an independent and impartial mind to making the decision. (There may be other reasons why a custom tribunal member ought not be, or be seen to be, independent in a particular case, but that does not arise here). The claim that a reasonable person might consider that one of the members of a custom tribunal might not impartially consider a claim was considered in Matarave v. Talivo (above) and described there as apprehended bias.
[11] The need to have natural justice is especially important in claims to custom land, because custom land rights are so important in Vanuatu. See the remarks of this Court in Raupepe v. Raupepe [2000] VUCA 6 (Civil Appeal Case No. 12 of 2000) at page 3. This Court does not intend to influence the final outcome of the decision of the Supreme Court decision now to be made, or if the Supreme Court sets aside the decision of the Island Tribunal and sends the claim back to the Island Tribunal to be reheard, this Court does not intend to point in any direction about how the Island Tribunal should then re-decide the matter. We do not know what all the evidence was, or perhaps will turn out to be. But the importance of its decision is indicated by the appellant's assertion that the appellants and their ancestors have lived on the Metenesel Land since time immemorial, and by the fact that decision of the Island Tribunal as it presently stands would mean they have no right to do so in the future.
The Background to the Supreme Court judgment
[12] The issue underlying this application is a dispute about who are the custom owners of land known as the Metenesel Land, comprising
about 3,500 hectares, at the Lambubu area on Malekula Island. The Metenesel Land is especially significant for its cocoa plantation.
It should be noted that there is some apparent overlap in the membership of the groups comprising the appellants and the first respondents.
[13] On about 17 November 2007, the Joint Village Land Tribunal of Metenesel decided that the first respondents were the custom owners of the Metenesel Land. The appellants appealed from that decision to Area Land Tribunal, Central Malekula (the Area Land Tribunal).
[14] On 11 April 2008, the Area Land Tribunal, declared that the appellants are the custom owners of the Metenesel Land.
[15] The appellants assert that no appeal from that decision was made within the 21 day period specified in s. 22 (1) of the Customary Land Tribunal Act. The first respondents say that they did appeal from that decision, within the 21 day period, to the Malmetenvanu Customary Land Tribunal (the Island Tribunal), namely on 16 April 2008. Despite the appellant's objections to the competence of the appeal and (they claimed) to the composition of the Island Tribunal, and their stated intention to seek an order from the Supreme Court to prevent the hearing, the Island Tribunal proceeded to hear and decide the appeal. On 28 October 2008, the Island Tribunal decided that the first respondents are the custom owners of the Metenesel Land.
The proceedings before the Supreme Court
[16] On 16 December 2008, the appellants applied under s. 39 (2) of the Customary Land Tribunal Act to quash the decision of the Island Tribunal, so that the determination of the Area Land Tribunal would be restored, at least unless
and until the Island Tribunal further reconsidered the appeal.
[17] The grounds of appeal to the Supreme Court at first were not expressed in terms which readily fit within the terms of s. 39, as they challenged a series of factual findings made by the Island Tribunal rather than challenging its procedures. The application was amended to tie more closely to s. 39. The first respondents asserted that:
1) the appeal to the Island Tribunal was not properly instituted, as it was made more than 21 days after the decision of the Area Land Tribunal and there were various deficiencies in it;
2) the Island Tribunal failed to give them natural justice because
i) They were not given the opportunity to be heard on the appeal hearing before the Island Tribunal;
ii) Two members of the Island Tribunal, Chief Owen Rion and Chief Temo Saity (the second respondents, who we shall call "the two chiefs") were related to the first respondents; and
iii) the two chiefs had improperly assisted the first respondents in framing their grounds of appeal; and
3) The Island Tribunal heard and determined the appeal even though it was aware that the appellants were proposing to challenge its status in the Supreme Court.
[18] The first ground was considered by the Supreme Court and was rejected on 4 February 2010. As the reasons of Dawson J explain, there were two themes to that complaint. The first was that the notice of appeal to the Island Tribunal was not given within 21 days from the decision of the Area Land Tribunal as required by s. 22 (1) of the Customary Land Tribunal Act. The second was that the notice of appeal did not satisfy subs s. 22 (1)(c), (d) and (f) because it did not specify the decision being appealed against; did not specify the grounds of appeal; and did not adequately specify the names of the parties to the dispute as required by those subsections respectively.
[19] The Supreme Court rejected each of those contentions. It found the appeal was instituted within the 21 day period, based on a letter from the Senior Land Tribunal Officer (who corrected an earlier letter to the contrary) and on the sworn evidence of Chief Temo Saity who was both the Secretary and the Chairman of the Island Tribunal. It found that the notice of appeal did identify the decision appealed from, and adequately identified the grounds of appeal, and that the notice of appeal provided sufficient information for any person reading it to know the parties to the dispute.
[20] At a further conference on 18 November 2010, counsel for the appellants indicated that the procedural fairness contention was the only outstanding issue, based on the appellants not being given the opportunity to an impartial hearing. As to that issue, the primary judge said in his reasons of 18 November 2010:
"3. A notice was sent out to all parties advising them of that conference on 2nd July, 2007. The Sworn Statement records that at the conference the objections by the Claimant were raised and that Chief Temo Saity indicated that he was prepared to stand down. He records that the Claimant then stood up and said that since Chief Owen Rion and Chief Temo Saity had been handling this matter since it came to the Tribunal, it is better that they continue until the case was completed. On that basis both chiefs continued to hear the claim. In a Sworn Statement of the Claimant dated 23rd March, 2010 he states in paragraph 5 (b) that he did confirm that the 2 chiefs concerned could continue to deal with the matter before the Tribunal but says that he did so because the Second Defendants issued threats of threaten to sue him for objecting at the wrong time. He then goes on to state that he did not authorize the Chiefs to sit. He of course does not have the authority to authorize who sits or who doesn't. He only has the opportunity to object, which he did, which he then withdrew and on that basis the Tribunal proceeded.
[21] Costs were awarded against the appellants and in favour of the respondents.
The contentions before the Court of Appeal
[22] The appellants complained of each of the decisions of 4 February 2010 and 18 November 2010. They asked for an order for the Supreme
Court order to be quashed, and for the proceedings before the Supreme Court to be heard and determined according to law.
[23] They argued that each of the decisions could not have been made because each of the hearings of 4 February 2010 and 18 November 2010 was listed for a conference only, and the Supreme Court had no power at those conferences to make the orders it did without giving the claimants the opportunity to present evidence at a hearing.
[24] They also argued that the Supreme Court had not properly considered the evidence, and so had assumed that the appellants had withdrawn their objection to the two chiefs being part of the Island Tribunal, when in fact they had not done so.
[25] The appellants objected to the two chiefs being part of the Island Tribunal. That was, they said, because the two chiefs, were related to the first respondents as competing claimants to the Metenesel Land. At the first preliminary or procedural hearing of the Island Tribunal on 5 June 2008, the two chiefs took notice of their objection and offered to stand down from the Island Tribunal, so it would have to be reconstituted. There was then some further discussions, leading to them deciding not to stand down.
[26] The first respondents say that was because the appellants withdrew their objection to the two chiefs being part of the Island Tribunal to hear and decide the custom owners of the land. The appellants say they agreed to withdraw their objection only for the purposes of that procedural or preliminary hearing, and that they maintained their objection in relation to the final hearing and decision of the Island Tribunal.
[27] The primary judge appears not to have appreciated that distinction and, possibly, the need to resolve that disputed fact. His reasons record only that the objection was, in effect, totally withdrawn.
[28] There is some material to support the appellant's contention that their acquiescence in the two chiefs hearing the claim, despite their initial objection, was limited to the procedural or preliminary hearing. A letter of 26 September 2008 to the Chairman or the Island Tribunal appears to maintain the objection, after the procedural hearing. The note of the procedural conference of 5 June 2008 records the objection, and is consistent with the appellant's position. There is also the statement of Chief Philip Enbue of 23 March 2010.
[29] It is not necessary to decide whether that ground, if made out, might have given cause for the decision of 18 November 2010 to
be quashed, as we have concluded that the Supreme Court in relation to that hearing exceeded its jurisdiction in any event.
[30] That issue can be determined by the Supreme Court when it reconsiders the appeal, on the limited issue referred to below, under
s. 39 (1) and (2) of the Customary Land Tribunal Act.
Consideration
[31] In our view, the application to set aside the orders made on 4 February 2010 must fail.
[32] Those orders were made at a Trial Preparation Conference held under Part 6 of the Civil Procedure Rules (the Rules).
[33] Rule 6 must be read with Rule 1.2, Rule 1.3 and Rule 1.4 stating the overriding objective of the Rules and generally how the just dealing with cases is to be achieved by the Supreme Court.
[34] Rule 6.6 deals with a Trial Preparation Conference. Its purpose is to identify precisely the issues, the proposed evidence to prove the issues, and to prepare the matter for trial, a well as exploring the prospects of settlement: Rule 6.6 (1).
[35] Rule 6.6 (3) indicates to the parties what they need to be prepared for to attend the conference, and Rule 6.6 (4) specifies particular powers of the judge at that conference. They provide:
"(3) At the Trial Preparation Conference, the parties should be in a position to:
(a) assist the judge in finally defining the issues; and
(b) tell the judge the number of witnesses each proposes to call, and any special considerations about the taking of evidence; and
(c) give estimates of the time the hearing is likely to take; and
(d) agree on facts that have been admitted (and which will therefore not need to be proved); and
(e) discuss whether expert witnesses will be called; and
(f) report on compliance with orders made at earlier conferences; and
(g) deal with any other matters that can reasonably be dealt with before the trial.
(4) In particular, at the Trial Preparation Conference the judge may:
(a) fix dates for the exchange of proofs of evidence and agreed bundles of disclosed documents, if this has not been done; and
(b) give directions for the further preparation for trial; and
(c) if possible, decide any preliminary legal issues that need to be resolved before the trial, or fix a date for hearing these; and
(d) fix a date for the trial."
[36] Finally, we note that Rule 6.11 provides that such a conference is not to be held in open court unless the judge directs that.
[37] Having regard to Rule 6.6 (4) (c), in our view the judge was entitled to decide the issues which he decided on 4 February 2010.
[38] They concerned the status of the appeal to the Island Tribunal based in part upon the overwhelming evidence that that appeal was instituted within time (despite the letter to the appellants to the contrary which its author acknowledged was a mistake). There is no suggestion from the appellants that they wished to call any more evidence on that point, and they were not taken by surprise, and they were not deprived of natural justice. They were able to argue that point fully at that time.
[39] Secondly the judge decided the objection that there was no proper appeal to the Island Tribunal because the contents of the notice of appeal to the Island Tribunal were inadequate. That involved argument on the contents of that document. Again, the appellants were not deprived of natural justice in those points being decided at that time.
[40] Each of those issues can fairly be described as preliminary legal issues of the kind referred to in Rule 6.6 (4)(c).
[41] More importantly, having regard to the discussion above about s. 39 (4) of the Customary Land Tribunal Act, they were decisions on matters of fact by the judge made within jurisdiction. They are not matters which, even if error were shown, would lead to the conclusion that the Supreme Court lacked the jurisdiction to make them. Consequently, they are not decisions which the Court of Appeal may review in any event.
[42] We have reached a different view about the orders made on 18 November 2010.
[43] They were orders which finally disposed of the matter. They went beyond the power of the Supreme Court to make at a Trial Preparation Conference. Rule 6.6 generally shows that the making of final orders, except by agreement, could not be made at such a conference. It is directed to orders to ensure the trial proceeds as expeditiously and as fairly as possible. The last clause of Rule 6.6 (4)(d) refers to the task of fixing a trial date. It is understandable, in the circumstances, if counsel for the appellants at that conference might complain of being taken by surprise, and of being unable to assemble and present all the evidence and arguments in support of the remaining contention, that the appellants were deprived of natural justice by the Land Tribunal because the two chiefs participated in its decision-making.
[44] A contested hearing should routinely take place in open court: Rule 6.11. The judge might have listed the matter for an early trial. If the parties were agreed, he might make orders by consent. If the parties agreed to arguing at short notice a point which could have led to final orders, it would have been appropriate to adjourn the conference to open court to hear that argument. However, the short point is simply that the orders made on that occasion were beyond the power of the Supreme Court to have made at that time.
[45] For that reason, we determine that the orders of the Supreme Court made on 18 November 2010 dismissing the appeal of the appellants and for costs are quashed. The matter is remitted to the Supreme Court to hear and determine the appellant's appeal under s. 39(2) of the Customary Land Tribunal Act. The only issue to be determined, having regard to the matters decided on 4 February 2010, is whether in all the circumstances, the Island Tribunal was properly constituted having regard to the fact that Chief Owen Rion and Chief Temo Saity were members of it. There may well be a need for further evidence to be given at that hearing, including more precise evidence as to whether their relationship with the first respondents or some of them was such that they ought not to have sat as part of the Island Tribunal for that hearing either on their own initiative or on the objection by the appellants, if it was maintained. That is a matter for the Supreme Court.
[46] The first respondents are ordered to pay to the appellants the costs of this hearing. We note that the two chiefs did not participate in the hearing before the Court of Appeal.
DATED at Port Vila, this 8th day of April 2011
BY THE COURT
Hon. Chief Justice V. LUNABEK
Hon Justice J. MANSFIELD
Hon. Justice D. FATIAKI
Hon. Justice R. ASHER
Hon. Justice R. SPEAR
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URL: http://www.paclii.org/vu/cases/VUCA/2011/12.html