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Habhapat v The Island Court (Land) of the Republic of Vanuatu [2025] VUSC 131; Judicial Review 2704 of 2024 (3 June 2025)

JUDGMENT

1. This application for review of decisions made by the Island Court (Land) Is brought pursuant to section 47 (2) of the Custom Land Management act No.3 of 2013. It was filed on 10 July 2024 and subsequently amended on 22 November 2024.
2. The matter has been settled following discussion between counsel.
3. There are two earlier decisions of this Court Which assisted counsel in their discussions the first being civil case 718 of 2024 between Kennedy Matokuale Tariwer v Forari Village Land Tribunal & Ors. (unreported) and civil case 2059 of 2024 between Family Waltersai Haphapat II Ahelmhalahlah v Undualao Nakaml & Ors.
4. In those decisions, which are now available on PacLii, a discussion on the status of the Island Court (Land) can be found. For the avoidance of doubt, those two decisions set out to describe how, when sitting as an Island Court (Land), it is nothing more than an Island Court established under the Island Courts Act [Cap 167] that is making the decision.
5. It follows that the tribunal is obliged itself to follow the rules prescribed by the Island Courts Act and rules made there under. Some of those rules include a prohibition on legal practitioners appearing before the tribunal (s27), and rules concerning the conduct of a hearing.
6. The rules concerning the conduct of a hearing are to be found in order No.28 of 2005 Island Courts (Civil Procedure) Rule 2005 beginning at rule 6. Of particular importance in this case is rule 6 (3) headed ‘Interests of justice’. For convenience, that rule is set out herein:-

(a) Declaration of interest by justice

If, at any stage of the proceedings, a justice realises that he or she is related to any of the parties or has any interest in the subject matter of the claim, that justice must inform the other justices who must then inform the parties and ask the parties whether they wish the justice to withdraw from the hearing. If one or more of the parties objects to the justice hearing the case, that justice must withdraw, and the hearing adjurned to a new date and time.

If the parties have no objection to the justice hearing the case, the case may proceed.

(b) Objection by party

If a party considers that a justice is related to any of the parties or has an interest in the subject matter of the claim, that party may object to the court about the participation of that justice. If the other justices consider that the objection is well founded, the clerk shall adjourn the hearing to be heard by a different panel of justices.

If the justices consider that the objection is not well founded, the court shall continue with the hearing.

(c) Recording of declaration or objection relating to the interest of a justice The clerk must record any declaration of interest made by a justice, or objection made by a party to the interest of a justice, and the result of that declaration or objection.

7. This rule was applied in Tariwer. It should have been applied in this case, as counsel have now conceded. It was not, as the decision suggests, for the parties to take the question of recusal to the Supreme Court but for the Island Court (Land) simply to follow the procedure set out in the rules. If the relevant disclosure had been made by the Presiding Judicial Officer and Justices, and the parties allowed to make submissions on the interest disclosed and a decision made thereon, the matter would not require review.
8. In addition, this case involves the question of the power to extend time within which to file an application for review to the Island Court (Land). As was decided in Waltersai, no such power has been given to the Island Court (Land) and so no consideration needs to be given to the exercise of a discretion as the Island Court (Land) has no such discretion.
9. This decision is necessarily brief as nothing turns on it, given the parties helpful decision to settle this review by consent. It is, perhaps, necessary for the future guidance of the Island Court (Land) to understand why the parties came to their decision that the review must be successful and decisions made by the Island Court (Land) of 7^th and 10^th June 2024 be set aside.
   

Dated at Port Vila this 3^rd day of June 2025

BY THE COURT

Hon. Justice EP Goldsbrough