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Tari v Tari [2015] VUSC 118; Land Appeal Case 02 of 2014 (28 August 2015)

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

Land Appeal Case No. 02 of 2014

IN THE MATTER OF: KWALSUKU LAND DISPUTE

AND

IN THE MATTER OF: The decision of the Ambae Island Court in Land Case No. 01 of 1998

BETWEEN:

MANLEY TARI & FAMILY
Appellant

AND:

NICOLSEN TARI & FAMILY
Respondent

Coram: Justice D. V. Fatiaki, Jif Isaac Bani and jif William Tari as assessors

Counsel: Mr. J. Tari for the Appellant
Mr. S. Joel for the Respondent (represented by G. Boar)

Date of Delivery: 28 August 2015

JUDGMENT

1. This is an appeal against a decision of the Ambae Island Court delivered on 4 July 2012 declaring Nicolsen Tari representing his family and descendants the custom owners of the land of Kwalsuku situated in the Redcliff area of South Ambae.
   
2. The appeal was commenced on 21 September 2012 by way of an application for leave to appeal out of time. On 29 January 2014 leave was granted and on 12 May 2014 the appellant filed a notice and grounds of appeal as follows:
   

"(a) The appellant requested an adjournment of the case because most of the witnesses of his family were at that time not able to attend;

(b) The appellant's witnesses are:

• Japhet Kalo (present);
• Edwin Silas (present);
• Ernest Tabi (absent);
• Johnson Vire (absent);
• Gideon Tonatas (died); and
• Francis Aru (absent sick in Port Vila).
  

(c) The only two witnesses that were present were threatened by the first and second respondents and were afraid of telling the true story of the appellant".

3. In his response to grounds (a) and (b) above the respondent states:
   

"Response to Ground 1

He denies ground one and say that there was no indication anywhere in the judgment of the Island in Land Case no. 1 of 1998 referring to an application by the appellant for an adjournment as claimed. In any even the respondent Nicholsen Tari as original claimant was heard and corss-examined by the appellant so does his witnesses Samuel Natu, Anderson Tari, Benjamin Bob and Ison Banga.

Whilst the counter claimant and appellant herein was also heard and cross examined with his three witnesses namely Chief Edwin Garae, Chief Samuel Buto and Wifred Seth (brother in law from Waluriki North Ambae).

The respondent further say that the matter was called for conference in the morning when all witnesses names were noted in the two cases and directions made for hearing to commence that afternoon. No application for adjournment was made in the morning or before hearing that afternoon it is wrong now to even consider what was then not an issue or part of the judgment.

Response to Ground 2

He denies that there is sufficient allegation to answer in ground 2 otherwise state that none of the witnesses named were engaged for the hearing of Land Case No. 1 of 1998 and the appellant, his witnesses Chief Edwin Garae, Chief Samuel Buto and Wilfred Seth were heard and cross examined. It is reasonably expected none of the said witnesses named in the grounds of appeal if called could make any difference to the outcome of the judgment since the appellant himself was heard and supported by witnesses during the Island Court hearing. To call more witnesses would just make the numbers with no particulars substance in is favour.

The appellant himself concedes he was the one who supports and notified the respondent who were at Vilakalakala on West Ambae to attend prior village court hearings in respect of this land's ownership as was referred to in the said judgment.

And, in response to ground (c) the respondent writes:

Response to Ground 3

He denies ground 3 as the same is an allegation of a criminal nature and no complaint as such has been made to the police and a conviction reached. To make such an allegation now by way of a ground of appeal is merely shopping for reasons to negate a decision judicially reached and in binding in law. In any event none of the intended witnesses present then were called and only the appellant, and his witnesses Chief Edwin Garae, Chief Samuel Buto and Wilfred Seth were heard by choice and nothing more."

4. Given the grounds of appeal both parties sought and were permitted to file sworn statements. The appellant filed 3 sworn statements, one from himself and one each from Japhet Kalo and Edwin Silas. Somewhat surprisingly, no sworn statements were filed from his missing witnesses. We say surprisingly because the grounds of appeal (seeking an adjournment because of absent witnesses) can have no reference whatsoever to Japhet Kalo and Edwin Silas who were both present during the Island Court proceedings as confirmed in ground of appeal (b) above. This was a glaring omission in the appellant's evidence.
   
5. Be that as it may, we begin our consideration of appeal grounds (a) and (b) by noting that the appellant bears the evidential burden of establishing that he had sought an adjournment of the Island Court proceedings and his application was improperly and unfairly refused.
   
6. In the absence of the Island Court's trial record which it was the appellant's duty to produce at the appeal hearing, this Court is left with only the judgment of the Ambae Island Court which nowhere records that the appellant had made an application for an adjournment of the proceedings and that it had been refused.
   
7. Order 16(1) of the Island Courts (Civil Procedure) Rules 1984 gives the Island Court a discretion to postpone the hearing of a case for better ensuring the hearing and determination of the issues between the parties on the merits and provided that the application is not made for the purpose of mere delay. More importantly for present purposes, Rule (2) provides:
   

"Where an application is made under rule 1 on the ground of the absence of a witness, before granting the application the court shall require the applicant to satisfy it that the evidence of such witness is material and that the witness is likely to be available within a reasonable time".

8. In the present case not only had the appellant been given a months advance notice of the trial dates but, in addition, the appellant had 4 hours in which to locate and bring his missing witnesses to court on the actual trial date after the pre-trial conference was concluded in the morning.
   
9. The appellant's sole evidence in support of grounds (a) and (b) is his self-serving statement to the effect that, of his 5 named witnesses only two (2) namely, Japhet Kalo and Edwin Silas, were present for the hearing of the land case so at the start of the hearing he requested a short adjournment to enable him to get his three (3) missing witnesses but the court refused his application.
   
10. Nicolsen Tari in his sworn statement deposed that the appellant "... did not make any application to hear (his 3 missing witnesses) later and the court proceeded to conclude the hearing on 3 July". He also confirmed that Edwin Silas was actually called by the appellant as a witness in the case and was cross-examined by him and he described an incident during his cross-examination of Edwin Silas where Edwin Silas was shouted at by Edwin Silas' wife through a window.
    
11. Neither counsels sought to cross-examine the deponents of the sworn statements and the court is left with the unenviable task of determining the issues on that unsatisfactory basis.
    
12. Plainly the appellant's sworn statement filed in support of these grounds of appeal utterly failed to satisfy the requirements of Rule (2) set out above. Even counsel when asked at the hearing of the appeal was unable to advance matters in the absence of any sworn statement from the appellant's missing witnesses nor can this Court make its own assessment of the materiality of the missing witnesses evidence.
    
13. Having said that we note that besides giving evidence, the appellant also called three (3) other witnesses to support his claim to Kwalsuku land namely, Chief Edwin Garae, Chief Samuel Buto, Edwin Silas and Wilfred Seth. Clearly, this was not a case where a claimant was completely denied any opportunity to be heard or to call witnesses.
    
14. In this regard too we are mindful that Order 18 rule 2 of the Island Court (Civil Procedure) Rules 1984 expressly limits the number of witnesses that may be called by either party to "... five witnesses each to support their claim". In other words, even if the appellant's 3 missing witnesses, namely, Johnson, Gideon and Francis were available at the trial, only one (1) witness (if any) could have been called to support the appellant's claim because the appellant had already called 4 witnesses.
    
15. After considering the contents of the competing sworn statements together with the judgment of the Island Court and after hearing counsels, we are not satisfied that the appellant had sought an adjournment before the Island Court or that there would have been any impropriety or unfairness in rejecting such an application in all the circumstances. Grounds (a) and (b) are dismissed.
    
16. We turn next to consider ground (c) of the appeal where the appellant complains that his witnesses were threatened and intimidated before the hearing of the Island Court commenced. The respondent in his written response interalia: "... denies ground 3 as the same is an allegation of a criminal nature and no complaint as such has been made to the police and a conviction reached".
    
17. In relation to ground (c) the appellant deposes that his only two witnesses, namely Japhet Kalo and Edwin Silas were "... threatened by the families of Ison Banga and Nicolsen Tari before the hearing causing them to not tell the truth in court".
    
18. Japhet Kalo and Edwin Silas for their part, confirmed in identical sworn statements that before the hearing of the two land cases there were threats, intimidations, and harassment by the families of Ison Banga and Nicolsen Tari. And both deposes that:
    

"... if there were no threatening before and during the hearing, true story would have been told and possibly a different decision to take place".

19. Nowhere in the sworn statements however, has any attempt been made to identify the person or persons who allegedly threatened Japhet Kalo and/or Edwin Silas nor is there a description of the nature and details of the so-called threats, (whether verbal or by actions) or of the actual words used, if there were verbal threats. Additionally, the sworn statements of Japhet Kalo and Edwin Silas are also completely silent on the nature of the evidence that they would have given in support of the appellant's competing claim to Kwalsuku land and how their evidence could have materially affected or altered the Island Court's decision (if at all).
    
20. In similar vein and like the adjournment grounds, we note that the Island Court judgment contains no record whatsoever of any complaint being made to the Court by the appellant or his witnesses of being threatened either before, during or after the hearing of the case. Significantly, Edwin Silas who claims to have been threatened before the hearing of the case was not deterred from giving evidence in support of the appellant's claim. Neither is he recorded as having made any complaint of being threatened to the Island Court during the course of his evidence as might be expected if he felt intimidated by the alleged threats.
    
21. Despite the complete lack of any details or particulars of the quality, nature, and duration of the alleged threats made to the appellant's two witnesses, if the appellant and his witnesses are to be believed on their assertions in their sworn statements to being threatened and intimidated and they were serious about it, then one would expect that such threats would have been brought to the Island Court's attention and, at the very least, a complaint would have been lodged with the police. In this latter regard Section 82(f) of the Penal Code [CAP. 163] makes it a criminal offence punishable with 5 years imprisonment, for any person:
    

"(to) attempt wrongfully to interfere with or influence a witness in a judicial proceeding either before or after he has given evidence, in connection with such evidence".

22. In the present case there has not been the slightest suggestion or indication from the appellant or his allegedly threatened witnesses that an official complaint had been laid with the police. This is a serious omission in the appellant's evidence before this Court and leaves us with the distinctly unfavourable impression that the alleged threats are an after-thought or were of such a trivial and ineffective nature as to be unworthy of being reported to the police.
    
23. In either event, we are not satisfied or persuaded by the appellant that his witnesses were threatened and intimidated either before or during the hearing of the Kwalsuku land case.
    
24. In light of the foregoing the appeal is dismissed in its entirety and the appellant is ordered to pay the respondent's costs which we summarily fix at VT100,000 to be paid within 28 days from the date hereof.
    

DATED, this ... day of June, 2015.

BY THE COURT