Supreme Court of Vanuatu

(d) that Court consents to the withdrawal and to the dispute being dealt with under this Act;

the dispute must be dealt with under this Act and one of the parties must give notice under section 7.

(2) The Supreme Court or an Island Court may:

(a) order that any fees paid to that Court in respect of such proceedings be refunded in full or in part to the applicant or any of the other parties; and

(b) make such other orders as it thinks necessary.

(3) To avoid doubt, if proceedings before the Supreme Court or an Island Court relating to a dispute about customary are pene pending, the dispute cannot be dealt with under this Act.”

(my underlinings)

“J. Garae

Nick

Frank Tavuti – I agree with the others that we withdraw our claim and be heard by the LT (Land Tribunal). I’ve paid my fees, I bring receipt today.”

ORDER

1. Claim withdrawn;
2. Fees be refunded/receipt
   

(signed) 09/04/03”.

13. It is unfortunate that the handwritten entry does not clearly record the presence of all the parties on 9 April 2003 and despite the Land Tribunal’s confirmatory letter (8 years later) that: “... all the seventeen (17) claimants plus Stephen Salathiel (the claimant’s father) agree to withdraw the case and have it transfer to the Lands Tribunal for hearing” (which is nothing more than inadmissible hearsay), the claimant’s sworn assertion to the contrary remains undenied by anyone who was actually present on the day.
    
14. It is doubly unfortunate that “Frank Tavuti” who is named in the entry remains unidentified with any of the claimants before the Santo/Malo Island Court nor is the identity of the other parties who agreed to the withdrawal of the Santo/Malo Island Court claim clearly disclosed in the entry.
    
15. Furthermore, there is not a shred of evidence that a Notice under Section 7 of the CLT Act has been given by “one of the parties” to the dispute as required by Section 5 (1). Similarly none of the present defendants (who presumably were also parties before the Santo/Malo Island Court) have confirmed applying for or agreeing to withdraw the dispute before the Santo/Malo Island Court [see: s. 5 (1) (b)].
    
16. If I may say so, with hindsight, it is unfortunate that Section 5 (1) of the CLT Act requires “one of the parties” to give the requisite notice where a dispute is being transferred from the Island Court to a Land Tribunal especially where there were 17 claimants and there has been no appointment or delegation made by the Island Court in agreeing to the transfer.
    
17. In the present case no Section 5 or 7 notice has been produced to this court and, despite the Island Court’s order, it remains unclear what became of the claimant’s claim that was before the Santo/Malo Island Court. Indeed, subsequent events appears to suggest that a fresh claim altogether was commenced under the CLT Act (how and by whom is unknown), calling upon any claimants to submit their claims before the Santo/Malo Joint Area Land Tribunal.
    
18. The three (3) public notices that preceded the First Defendant Tribunals hearing, given in June/September 2008 are all headed: BELMOL CATTLE PROJECT and refers to “Belbura” and “Belvuol” customary lands only. All 3 notices are issued on behalf of the chairman of the Joint Village Land Tribunal of South Santo Area 2, Fanafo Canal and Malo and are therefore non-compliant with the requirements of Section 5(1) and Section 7 of the CLT Act.
    
19. The Fourth and last public notice dated 13 May 2009 (6 years after the “transfer” order) properly identifies the eight (8) disputed customary lands under consideration by the Tribunal including “Artacha” and “Nasulnun” land but, even that notice, is signed by Chief James Tangis as chairman of the Tribunal and not by “one of the parties” in the Santo/Malo Island Court case as required in terms of section 5(1) of the CLT Act. This public notice also refers to a differently named Tribunal than the First named Defendant Tribunal.
    
20. Having noted the above irregularities and omissions, counsel for the 7th and 9th defendants (E. Nalyal), nevertheless, forcefully submits that the full and unconditional participation by the claimant in the proceedings of the First Defendant Tribunal constitutes a “waiver” of the statutory pre-requisites and raises an “estoppel” against the claimant preventing it from challenging the First Defendant tribunal’s decision which it has accepted in its claim.
    
21. After carefully considering the defendants written and oral submissions at the Rule 17.8 CPR hearing of the claim, I cannot agree that the mandatory requirements of Sections 5 and 7 of the Customary Land Tribunal Act which goes to jurisdiction, are capable of being waived nor can an estoppel be pleaded so as to avoid strict compliance with the mandatory requirements of statutory provisions.
    
22. In this regard it may be noted that State Counsel representing both defendant Tribunals (J. Ngwele) whilst adopting a “neutral stance” in the matter, nevertheless, highlighted that there had been a fire at the Island Court, Santo premises which destroyed a large number of files including the original Santo/Malo Island Court files and, furthermore, there were logistical problems with the maintenance, storage and handling of Land Tribunal records in the absence of a permanent office premises for the Customary Land Tribunal Unit in Port Vila which was neither separately funded or resourced to properly administer the important work it is required to undertake under the CLT Act.
    
23. In light of the foregoing I uphold the first ground of complaint that there was non-compliance with the mandatory requirements of Sections 5 and 7 of the Customary Land Tribunal Act. What then is the effect of such a finding and should this Court return everything to 2003 when the claimant’s claim before the Santo/Malo Island Court was irregularly withdrawn and improperly transferred to the Land Tribunal system? The answer is not an easy one in the absence of the Island Court file or a copy of the initiating document filed in the Island Court.
    
24. Needless to say, the court would be ignoring two (2) major pieces of legislation that have been passed since 2003 and the important fact that the claimant by his own admission and pleadings fully and willingly participated in the proceedings of the first defendant Tribunal and, indeed, accepts part of the first defendant Tribunal’s decision.
    
25. I am also mindful that Section 5 does not, in terms, preclude a “transferred” claim being otherwise pursued through the ordinary customary land tribunal process (see also: the observations of the Court of Appeal in Family Kalmet v. Family Kalmermer [2014] VUCA 11 especially at paras. 29 to 34).
    
26. I turn next to consider the complaints specifically directed at breaches of procedure by the First Defendant Tribunal. Before doing so however, it is necessary to briefly consider the tribunals and processes set up under the CLT Act.
    
27. In this regard I can do no better than to refer to the observations of the Court of Appeal in Solomon v. Turquoise Ltd. [2007] VUCA where the Court said of the CLT Act:
    

“Parliament specifically set up a multi-layered system where a party has the right to argue his case about ... land ownership up to 5 separate times (inclusive of an Island Land Tribunal rehearing) in tribunals consisting of local chiefs and elders before the point of final resolution is reached.”

28. Fundamental to that “system” is the role of the Council of Chiefs in determining the boundaries of a “custom area” or “custom sub-area” and in approving a list of qualified chiefs and elders to adjudicate customary land disputes within each custom area or custom sub-area (see: Sections 35, 36 and 37).
    
29. The CLT Act recognizes a hierarchy of tribunals beginning with at the lowest level – Village Land Tribunals which can be either single or joint depending on the location of the boundaries of the disputed land and the number of village boundaries it falls within (see: PART 2); then follows a first tier of appellate tribunals which can be single or joint and which are designated Custom Sub-Area Land Tribunals (see: PART 3) or Custom Area Land Tribunals (see: PART 4). Notably a dissatisfied appellant before a Custom Sub-Area Land Tribunal has a second tier appeal either to a Custom Area Land Tribunal or to an Island Land Tribunal (see: PART 5) and in limited circumstance, an unsuccessful appellant has a further right to a “rehearing” before an Island Land Tribunal (see: Section 24).
    
30. By definition the CLT Act recognizes 4 levels of tribunals as well as “custom areas” for the islands of the archipelago which are further divided into “custom sub-areas” in the larger islands.
    
31. On the basis of the above analysis of the CLT Act it can be seen that the custom area; custom sub-area and Island Land Tribunals are appellate levels or tiers as distinct from the village or joint village land tribunals which are tier one first instance tribunals (see: Sections 12, 17 and 22 in contrast to Section 7).
    
32. On that basis and consistent with the names of the defendant Tribunals both must be considered appellate tribunals where the initiating document would be an Appeal Notice in accordance with sections 17 and 22.
    
33. In the present case, however, the initiating document is a Public Notice issued by the chairman of the defendant Tribunal calling on all registered claimants to pay the requisite court fees within 21 days before the assigned hearing date. The Public Notice is clearly non-compliant with the requirements of Section 7, 17 and 22 and appears to be a Notice of Hearing under Section 25 of the Act. I say appears advisedly because in the event that it is an appeal that is being heard paragraph (e) requires such a notice to “specify the grounds of the appeal” and there are none specified in the relevant Notice.
    
34. If I may say so the documents submitted by the parties of relevant Land Tribunal decisions (not by the Land Tribunal officer as might be expected) are incomplete, disorganized, and almost incomprehensible. Certainly most would not withstand close scrutiny.
    
35. As was recently observed by the Court of Appeal in Tavue v. Joint Village Land Tribunal [2013] VUCA 34 in allowing the appeal and returning the case to the Supreme Court.
    

“1. This appeal highlights two things:-

2. First, it is vitally important that the processes under parts 6 and 7 of the Customary Land Tribunal Act [CAP 271] are complied with so that the boundaries and lists are clear, including the annual review of lists of approved adjudicators. Furthermore, that the Department of Lands through the Customary Land Tribunals Office keeps proper records of the Land Tribunal decisions and processes and ensures that the Council of Chiefs for each custom area annually review the list of approved adjudicators.
   
3. Secondly, when cases like this arise, the State Law Office should be able to produce to the Supreme Court the proper records so that there will not be disputes between the parties on conflicting and largely anecdotal evidence. The State Law Office tries to assist the Court, as it should, in matters like this, but even it as the representative of the land tribunals is not able to say what the record shows.
   
4. If proper records were created and maintained, the number of cases like this before the Supreme Court and the Court of Appeal would, very likely drop dramatically for the benefit of all."
   
36. In this regard PART 6 of the CLT Act which details the procedures to be followed by a Land Tribunal from the giving of a Notice of Hearing (Section 25); through the hearing of the claim or appeal (Section 27); and the giving and recording of the Tribunal's decision (Sections 29, 30 and 34), cumulatively, indicates that for every land tribunal decision there will be a "record" kept by a secretary (section 38) containing an initiating document, a Hearing Notice, transcripts of witnesses testimony and any cross-examination; documentary evidence such as a sketch plan of the land as well as family tree(s); submissions of the parties on relevant customary law and practices and the deliberations and votes of the members of the Tribunal if the decision is not unanimous.
    
37. Needless to say in the absence of such a "record" which it is the duty of the defendant Tribunals to maintain and provide to the Court, it is impossible for this Court to do justice to the claimant's application invoking this Court's jurisdiction under Section 39 of the Customary Land Tribunal Act. Accordingly and in exercise of the Court's powers under Section 39 both defendant Tribunals' decisions are quashed with costs to be taxed if not agreed.
    
38. Mindful of the commencement of the Custom Land Management Act, I make no order as to the continuation or resolution of the existing dispute instead leaving it to the parties and their advisors to consider the best way forward for dealing with their dispute unconstrained by the defendant Tribunal's determinations.
    

DATED at Port Vila, this 6th day of March, 2015.

BY THE COURT

D. V. FATIAKI
Judge.