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Hare Family v Robei [2012] VUSC 255; Civil Case 42 of 2011 (21 December 2012)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)
Civil Case No. 42 of 2011

BETWEEN:

MOLI VUTI HARE FAMILY, MOLI SATING, POSKI LEON FAMILY, TAMATA LINI FAMILY, ROGER KOLOMULE FAMILY OLSEM VUN TAVUI TURPOTPOT
Claimants

AND:

CHIEF AULU ROBEI and 23 Other Leaders and Chiefs named in the Claimant's Claims
Defendants

Mr Justice Oliver A. Saksak

The Claimants in persons unrepresented
Mrs Marisan P. Vire for the Defendants

Date of Hearing: 7th November 2012
Date of Judgment: 21st December 2012

JUDGMENT

1. The Claimants were declared as custom land owners of Vutione Tasmalum and Vutione Vulua by the Tasmalum Village Land Tribunal on 2nd September 2009.
   
2. The 24 Defendants consisting of Chiefs and Heads of Families representing numerous other families have not appealed against that decision at any time.
   
3. The Claimants took steps to register the decision in their favour with the Lands Tribunal Office on 11th September 2009.
   
4. They now apply pursuant to Rule 16.25 of the Civil Procedure Rules No. 49 of 2002 which provides as follows:-
   

"(1) A person who wishes to enforce a decision of a land tribunal may file a claim in the Supreme Court.

(2) The claim must:

(a) set out the decision, the date it was made and who made it, and

(b) name as defendant the person against whom the decision it to be enforced; and

(c) state in what way the defendant is not complying with the decision; and

(d) set out the orders asked for; and

(e) have with it a sworn statement in support of the claim.

(3) The sworn statement must:

(a) give full details of the claim; and

(b) have with it a copy of the record of the decision; and

(c) state that:

(i) the time for an appeal from the decision has ended and no Appeal has been lodged; or

(ii) an appeal was made but was unsuccessful.

(4) The claim and sworn statement must be served on the defendant.

(5) A defence filed in the proceeding must not dispute anything in the record of the decision.

(6) If the court is satisfied that the defendant is in breach of the decision, the court may make an enforcement order."

(Emphasis added)

5. At the hearing on 7th November 2012, the Claimants relied on the evidence by sworn statements of Moli Vuti Hare Vune Tavui Turpotpot tendered as Exhibit C1 and of Roger Kolomule Vune Tavui Turpotpot tendered as Exhibit C2 together with their respective annexures. Prior to the hearing, the Claimants pressed the Court to hear their claims and to consider their evidence with all their annexures. Counsel for the defendants did not cross-examine the deponents of the above evidence.
   
6. The defendants main defences were basically that:-
   
   • (a) They did not receive adequate notice or at all about the sitting of the Land Tribunal; and
     
   • (b) No notices were issued by a Lands Tribunal.
     

The defendants relied on the evidence by sworn statements of –

(a) Chief Aulu Robei – Tendered as Exhibit D1.

(b) Komi Tasi – Exhibit D2.

(c) Kone Kamere – Exhibit D3.

(d) Sisinar Manis Exhibit D4.

(e) Jenis Tieya – Exhibit D5.

(f) Rara Mele – Exhibit D6.

7. Moli Vuti Hare, the spokesperson for the Claimants cross-examined each of the six deponents with the following questions –
   
   • (a) To Chief Robei –
     

"Q: From wanem yu no kam long 2/09/09?

A: Rison from se inogat wan Tribunal I singaot mifala blong kam long miting."

(b) To Komi Kasi –

"Q: Notis blong 2009 – why yu no kam long miting?

1. Notis ino klia long komuniti. Long mi olsem Head, mi no kasem wan notis."
   

(c) To Kone Kamere –

"Q: Notis igo long yu be from wanem yu no kam?

A:Sorry, mi no kasem wan notis blong go long miting ia."

(d) To Sisinar Manis –

"Q: From wanem yu no kam long 2/9/09?

A: Sorry, mi no kasem wan notis blong go long miting ia."

(e) To Jenis Tieya –

"Q: Why yu no kam long 2/9/2009?

A: Mi no receivim wan notis blong Land Tribunal."

(f) To Rara Mele –

"Q: Why yu no kam long 2/9/2009?

A: Mi no kat wan stret notis long Land Tribunal."

8. The Claimants filed written submissions on 14th November 2012. The defendants have not filed any written submissions and the Court dispenses with their submissions.
   
9. From the evidence presented the Court identifies the following issues for consideration and determination.
   
   • (a) First and foremost, did the defendants breach the decision of 2nd September 2009?
     
   • (b) Did the Lands Tribunal issue the notice relied on by the Claimants?
     
10. First the Court considers the issue of breach. Both Moli Vuti Harre and Roger Kolomule annexed copies of the Record of Decision of the Land Tribunal to their respective sworn statements. Paragraph 12 records that "Olgeta kondissen we oli applae long decision ia:-
    

"12. Vutione Tasmalum and Vutione Vulua Joen Villij Kastom Sub Aria Land Tribunal I faenemaot se graon ia hemi stret graon blong famli Vune Tavui Turpotpot: From Traeb Keir mo famile boubou mama blong olgeta I kamaot long holl blong stone Ourarove Reva. Reason from wanem hemi claim folem traeb, keir and famile boubou mama we oli kamaot long hem and wetem mifala ol changes mifala I faenemaot tu se hemi really graon blong olgeta famile ia (olsem Vun Tarvui Turpotpot)."

(Emphasis added)

11. Reading between the lines carefully, with respect there are no conditions included in the above findings of the Tribunal. The declaration itself with respect is unclear and confusing.
    
12. Rule 16.25(6) requires that the Court must be satisfied that the defendant is in breach of the decision in order to make the enforcement order. The burden of proving that breach rests on the Claimants on the balance of probabilities. They have not produced the judgment or the record of the decision of the Tribunal itself. Rule 16.25 (3) (b) requires this record. In the absence of specific conditions imposed in the decision, the Claimants have failed to show breach of decision. This issue therefore is answered in the negative.
    
13. The second issue concerns notice.

The defendants denied receiving any notices issued by the Tribunal and served on them. Again both Moli Vuti Harre and Roger Kolomule annexed a document headed "Public Notice" in their representative sworn statements. That purported notice is signed by Moli Vuti Harre.

14. Section 7 of the Customary Lands Tribunal Act No. 7 of 2004 provides for Notice of Disputes. Section 7(2) of the Act States –
    

"The notice must be given –

(a) If the land is situated wholly within the boundaries of a village – to the principal chief of that village; or

(b) If the land is situated within the boundaries of more than one village – to the principal chief of each of those villages."

(Emphasis added)

15. The Tribunal that sat on 2nd September 2009 was Tasmalum Village Land Tribunal. However. This is not consistent with what the Tribunal called itself in paragraph 12 as Vutione Tasmalum and Vutione Vula Joint Village Kastom Sub-Area Land Tribunal.
    
16. A Village Land Tribunal must be established in compliance with Section 8 of the Act once the principal chief of that village receives the notice of dispute. That is not what appeared to have happened with the Claimant's purported notice and case.
    
17. Joint Village Land Tribunals must be established in compliance with Section 9 of the Act once the principal chief of each village receives notices issued in accordance with Section 7(1). That is not what appeared to have happened in the claimants' case.
    
18. Joint Custom Sub-Area Land Tribunals must be established in compliance with Section 14 of the Act. If the Land Tribunal that sat on 2nd September 2009 was in fact a Joint Custom Sub-Area Land Tribunal then it was sitting as such as an appellate tribunal to hear an appeal from a Village or Joint Village Land Tribunal. But that is not what appeared to have happened in this case because Mr Moli Vuti Harre argued and submitted that defendants did not appeal the decision of 2nd September 2009. So the Court finds the Tribunal that sat on 2nd September 2009 and made a declaration on the same date is a mystery and is not one required to be established under Section 8, 9. 13 or 14 of the Act. Therefore, the Court hereby declares that Tribunal as unlawful and its decision of 2nd September 2009 is also hereby declared null and void and of no legal effect.
    
19. Concerning the purported notice, it is also hereby declared null and void and of no legal effect. Section 7(3) states –
    

"The notice must:

(a) Be given orally or in writing in Bislama, French, English or another language of the person or group giving the notice; and

(b) Specify clearly the land which is undisputed;

(c) Contain the names of the parties to the dispute". (Emphasis added).

20. The purported notice relied on by the Claimants is not dated. And it does not contain the names of the 24 defendants whom they are suing for breach of decision.
    
21. For the foregoing reasons, the second issue is answered in the negative.
    
22. For all those reasons, the Court concludes that the Claimants' claim fail and are dismissed in their entirety.
    
23. The dispute must be returned to a properly constituted Joint Village Land Tribunal established under Section 9 of the Act. And I so order
    
24. The Claimants have put the defendants to unnecessary legal costs. They persistently and blatantly refused to pay the defendants' wasted costs of VT5.000 awarded on 8th August 2012.
    
25. The Court Orders that the Claimants must pay the defendants' costs of and incidental to the action on an indemnity basis. These costs must be paid before the Claimants issue any fresh notice of the disputes.
    
26. That is the judgment of the Court.
    

DATED at Luganville this 21st day of December 2012.

BY THE COURT

OLIVER A.SAKSAK
Judge