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Tota v Aibie [2012] VUSC 155; Civil Case 194 & 225 of 2006 (2 August 2012)

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

Civil Case No. 194/225 of 2006

Hearing: 02 August 2012

Before: Justice RLB Spear

In attendance: Eric Csiba for the Claimants
Ronald Warsal for the Defendant

JUDGMENT OF THE COURT (Ex Tempore)
CONSENT OUTCOME

1. Reference is particularly made to the minute of the conference of 3 April 2012.
   
2. There are two separate proceedings in this Court:-
   
   1. CC 225/06 relating to the decision of the Malekula Island in Land Case 6/94 dated 1 November 2006 in respect of Rahulum land at South West Bay, Malekula.
      
   2. CC 194/06 relating to the decision of the Malekula Island Court in Land Case 9/93 dated 1 November 2006 in respect of Weissser land and Rambabamp land situated in the Caroline Bay area of South Malekula.
      
3. The essence of the claims before this Court are that the claimants were effectively denied the opportunity to present their claims as to custom ownership in respect of Weisser and Rambabamp land (Land Case 9/93) because of incorrect advice given to them by their former counsel. They claim that they were advised by their former legal counsel that they would be able to advance their various claims as to custom ownership in respect of Weisser and Rambabamp land before a land tribunal rather than the Island Court. The evidence is that the claimants were not aware, at that time, that the matter was already before the Malekula Island Court and, relying on the advice that they had received from their former legal counsel, they understood that their claim as to custom ownership for this land could appropriately be dealt with through the (then) new land tribunal system established by the Customary Lands Tribunal Act [CAP 271]. They were clearly mistaken in that respect having been misled by the incorrect advice of their former legal counsel. This is accepted by the defendant, Mr Talis Aibie who was indeed declared the custom owner of that land by the Island Court. I should mention that the defendant is present today in person as well as being represented by legal counsel, Mr Warsal.
   
4. Regrettably, this matter has taken many years to get to this point. The claims were first brought in the Island Court in 1993 yet a decision was not achieved until 2006. This proceeding was commenced in 2006 yet it has taken until today to reach what is a sensible if not inevitable conclusion. That is largely because the claimants' former legal counsel did not have a clear understanding as to how the matter should be progressed. The claimants have suffered accordingly.
   
5. A consent position has been reached which relates entirely to a vital legal issue; that is, the right to be heard. In this case, it is the legal right of each of the claimants to be heard in respect of their various claims as to custom ownership of Weisser and Rambabamp land. Counsel accept that, in these circumstances, there is no need for the Court to sit with assessors knowledgeable in custom as the only issue is a legal issue. Furthermore, that what is now required is for the position to be rectified so that all proper claims as to custom ownership of Weisser and Rambabamp land be returned to the Malekula Island Court for a hearing de novo.
   
6. Accordingly, this Court quashes the decision of the Malekula Island Court dated 1 November in Land Case 9/93 9/93 relating to Weisser and Rambabamp land, Malekula and returns the case to the Malekula Island Court for a hearing of all claims as to custom ship of that land.
   
7. This hearing of the Malekula Island Court will not be confined to claims by those involved just in this Supreme Court proceeding although that may well be the eventual outcome. It will be necessary for the Malekula Island Court to treat the matter as if this was the very commencement of the proceeding with the appropriate notices being published so that all those who consider that they might have a claim as to custom ownership are able to have their claims placed before the Malekula Island Court and heard by that Court.
   
8. It is to be emphasised that this decision does not relate to CC 225/06 (land Case 6/94 in respect of Rahulum in South West Bay, Malekula. The proceeding is discontinued by the claimants.
   
9. This resolves all outstanding matters in respect of CC 194/1996 and 225/96.
   
10. All the parties will have incurred legal costs. In the circumstances, however, it is not appropriate that an order for costs is to be made. The parties will bear their own costs. Whether the claimants wish to attempt to recover of those costs from their former legal counsel will be a matter entirely for them.
    
11. I wish to acknowledge in particular the responsible concession made by the defendant Mr Talis Aibie in respect of these two proceeding. That concession now enables all outstanding claims for Weisser and Rambabamp land to be returned for hearing without further delay.
    
12. Conclusion
    

a. CC 194/96: Weisser and Rambabamp land in South Malekula

1. The decision of the Malekula Island Court in Land Case 9/93 and dated 1 November 2006, in so far as it relates to Weisser and Rambabamp land, is quashed;
   
2. Land Case 9/93 relating to Weisser and Rambabamp land is returned to the Malekula Isla Island Court for hearing
   
3. The Clerk of the Malekula Island Court is to give all required notices to the public and to the parties to this proceed to advertise the proceeding and to call for claims to be lodged as if the Land Case had just been commenced
   

b. CC 225/96: Rahulum land in South West Bay, Malekula – this proceeding is now discontinued by the Claimants

c. Each of the parties will bear their own costs.

BY THE COURT