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In re land known as Marobe, Family Sope Imere v Family Nikara [2003] VUSC 71; Land Appeal Case 001 of 1994 (20 February 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Land Appellate Jurisdiction)

Land Case No. 1 of 1994

IN THE MATTER OF: A Land appeal from the Efate Island Court. A land situated at and around Bauerfield airport called “MAROBE” on the island of Efate

BETWEEN:

FAMILY SOPE IMERE of Mele Village, Efate
First Appellant

AND:

CHIEF MANAREWO 2 of Port Vila, Efate
Second Appellant

AND:

IFIRA COMMUNITY of Ifira Tenuku, Efate
Third Appellant

AND:

IFIRA TENUKU COMMUNITY HOLDING LIMITED
Fourth Appellant

AND:

FAMILY KALSAKAU, Ifira, Efate, Vanuatu
Fifth Appellant

AND:

NAFLAK TEUFI tribe of Ifira Tenuku, Efate
Sixth Appellant

AND:

FAMILY NIKARA of Mele Village, Efate
Respondent

RULING AND DIRECTIONS

On 25th February 1994 the Efate Island Court gave its judgment in this dispute over Marobe Land. Appeals were lodged from that judgment and heard before the former Chief Justice. He left the country before judgment on the appeal was delivered. No written judgment has been found.

It is not disputed that this matter is unfinished. Some of the parties wish it to go before the Lands Tribunal, others wish it to say within the formal Court system and the appeal reheard to a conclusion.

Section 5 (1) of the Customary Land Tribunal Act states:-

“5 (1) If:-

(a) A person is a party to a proceeding before the Supreme Court or an Island Court relating to a dispute about customary land; and

(b) The person applies to that court to have the proceeding withdrawn and the dispute dealt with under this Act; and

(c) The other party or parties to the proceeding consent to the withdrawal and to the dispute being dealt with under this Act; and

(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 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 order as it thinks necessary.

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

In these circumstances this appeal must be reheard by the Supreme Court. Section 22, Island Courts Act states:-

“(1) Any person aggrieved by an order or decision of an Island Court may ...appeal therefrom to –

(a) the Supreme Court in all matters concerning disputes as to ownership of land;

(b) ........

(2) The court hearing an appeal against a decision of an island court shall appoint two or more assessors knowledgeable in custom to sit with the court.

(3) The court hearing the appeal shall consider the records (if any) relevant to the decision and receive such evidence (if any) and make such enquiries (if any) as it thinks fit.

(4) An appeal made to the Supreme Court under subsection 1 (a) shall be final and no appeal shall lie therefrom to the Court of Appeal”.

Section 27 states:-

“If a justice or an assessor has any personal interest or bias in any proceedings he shall be disqualified from hearing the same”.

There are therefore three stages:-

1. The appointment of assessors, including the hearing of any objections to their sitting. These must be properly founded objections with good reasons.

2. The Court (judge and assessors) will consider the records relevant to the decision. The Court will hear argument as to whether evidence should be reheard, any fresh evidence heard and whether any enquiries should be made. The court will decide on this.

3. The Court will hear the appeal including the making enquiries and the taking of evidence, if any.

The names of assessor and a date for the hearing of stage 2 will be notified soon. If there is any valid objection under stage 1 that will be heard before the date set for stage 2.

Dated at Port Vila this, 20th day of February 2003.

R.J.COVENTRY
Judge