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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF
THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
LAND APPEAL CASE
No.52 of
2003
In the
matter of: Three Applications to join in Land Appeal Case No.52 of 2003
by:
Joseph
Rauban
Amon
wari
Joel
Tamtam
as
Interested Parties/Intended Appellants
BETWEEN:
FAMILY
MORRIS BULE
Appellants
AND:
FAMILY
RON TEMATAMTAM
Respondents
Mr Silas Hakwa for the
Appellant
Mr. Daniel Yawha for the
Respondent
Mr Willie Daniel for Joseph
Rauban, Interested Party/Intended Appellant
Mr Felix Laumae for Amon Wari,
Interested Party/Intended Appellant
Mr
Saling Stephens for Joel Tamtam, Interested Party/Intended Appellant
JUDGMENT
These are three
applications made by the following: Joseph Rauban, Amon Wari and Joel Tamtam to
be joined as interested parties or
intended appellants in land Appeal Case No.52
of 2003 of Banmatmat land on the Island Court of Pentecost,
Vanuatu.
Joseph Rauban applies to
be joined as an interested party to the appeal and filed sworn statements in
support dated 21 September,
3 November and 5 December 2005. He said he
counterclaimed the land called "LONSING" which is within the boundary of
Banmatmat land.
Amon Wari applied
to be joined as a party to the appeal in Land Appeal Case No.52 of 2003 and
filed sworn statements in support dated
20 September and 28 October 2005. He
said he counterclaimed the land called "OME" which is within the boundaries of
Banmatmat land.
Joel Tamtam via
Taback applies to be joined as a party on 20 September. Taback’s
application of 20 September 2005 was dismissed.
Joel needed a lawyer. In
February 2006, Mr Saling Stephens of counsel acted on behalf of Mr Joel Tamtam.
He filed an application
for Mr Joel Tamtam to be joined as a party in Land
Appeal Case No.52 of 2003 on 10 March 2006 with sworn statements in support
dated
14 March 2006. Family Joel Tamtam counterclaimed the land called "Remlili"
which is within the boundaries of Banmatmat land.
The Respondent in the Land Case
No.52 of 2003 did not file a response to the three (3) applications and did not
take active part in
the hearing of the three applications. The Respondent seeks
however to make submissions. The Court refuses them to make submissions.
But
they declare their position to be in favour of those applications for the
Applicants be joined in Land Appeal Case No.52 of 2003
as interested parties.
The Court records the Respondent’s position in relation to the three (3)
applications.
The Applicants file
a response to each and every application referred to above on 14 October 2005.
They also filed sworn statements
in support of their response.
Evidence were called by each and
all applicants and they are respectively cross-examined on the contents of their
sworn statements.
There was no cross-examination of Stevenson Bule on his sworn
statements of 14 October 2005 in support of the Appellant’s response.
The
findings of the Court are set out as
follows:-
The Appellants are the
original land Claimants in the Pentecost Island Court (PIC) in Land Case No.2 of
1997. There is no dispute
that each and all interested parties, namely: Amon
Wari, Joseph Rauban and Joel Tamtam were parties in the original claim of
Banmatmat
land in the P. I.C. in Land Case No.2 of 1997. It is a fact that the
matter was set for conference hearing before P.I.C. on 14 -15
October 2005. The
three (3) interested parties took part in the said conference
hearing.
The P.I.C. set a
conference hearing to consider the issue of the boundary of Banmatmat land. It
is a fact that a consent was made
by all parties including the
Appellants/original Claimants that the boundary of Banmatmat covers different
lands: Lonsing, Ome, Remlili.
However, how the consent was said to be made is
not set out in the sworn statements of all parties including the
Applicants.
It is also a fact that
the P.I.C. made directions to the effect that the subsequent hearing of 16
October 2003 was to substantially
deal with Banmatmat between the original
Claimants/Family Morris Bule and the Respondent/Family Ron Tema Tamtam. The
boundary of
Banmatmat was then reduced to the boundary as shown in the map
submitted by the Respondent before P.I.C. which did not cover the
following
lands: "Lonsing", "Ome", and
‘Remlili".
The interested
parties: Joseph Rauban, Amon Wari and Joel Tamtam as a result of a ruling of
P.I.C., did not take part in the hearing
of Banmatmat land between the original
Claimants, family Morris Bule and the counterclaimant, family Rom Tema Tamtam.
The respective
claims of the Interested Parties were
withdrawn.
The P.I.C. delivered
its judgment on 21 October 2003 and the written reasons of the judgment were
provided on 01 December 2003.
The
Appellants, Family Morris Bule, filed their Notice of Appeal on 30 December 2003
within 30 days statutory period. The Respondent
filed a response. There was no
cross-appeal by the Respondent. An application for stay of the Judgment of the
P.I.C. was made on
19 January 2004 and granted by the Court on 19 August
2004.
On 6 October 2004, the
Appellants filed an application to introduce new evidence. On 23 February 2005,
the Court granted the Application
of the Appellants to introduce new evidence by
way of hearing de novo.
It is a
fact that as a consequence of the ruling of the Supreme Court of 23 February
2005, the lands called "Lonsing", "Ome" and "Remlili"
which were not part of the
land determined by the P.I.C., in Land Case No.2 of 1997, will be considered by
the Supreme Court by way
of hearing de novo because one of the grounds of appeal
of the Appellants, is the process of acquiring the consent of the Appellants
agreeing to rely on the map produced by the Respondent (then First
Counterclaimant). The Appellants’ consent on the boundary
was challenged
in the Supreme Court on the appeal and the Appellants intend to rely on their
original map filed before the P.I.C.
in Land Case No.2 of
1997.
On the basis of the facts
before the Court and the way the P.I.C. proceeded to hear the case without the 3
Interested Parties, the
only logical conclusion that can be drawn is that the
claims of the counterclaims: Amon Wari, Joseph Rauban and Joel Tamtam were
withdrawn by the P.I.C. after the P.I.C. was informed that the parties including
the Appellants consented to the effect that the
boundary of Banmatmat land
covered also the boundaries of different lands (Lonsing, Ome and Remlili). The
judgment of P.I.C. recorded
that there was a ruling. There were no details nor
specification about the said
ruling.
It is also a fact that
Amon Wari knows about the appeal filed by the Appellants. He filed a sworn
statement in support of the Respondents’
response well before he filed his
application to be joined as a party to this appeal.
On the Court records and
documents, the interested parties are not parties to the Land Appeal Case No.52
of 2003. However, it is also
a fact that they were initially parties before the
P.I.C. in 1997 and took part in the land conference hearing on 14-15 October
2003,
as a result of which, their claims were
withdrawn.
It is further a fact
that the Appellants wish to put back into question the consent of all parties,
namely the Interested Parties
themselves, the Respondents and the Appellants
before the P.I.C. in 2003.
On 15
October 2003, the claims of the counterclaimants were withdrawn by the P.I.C.
after the P.I.C. was informed by the parties that
they consented to the
boundaries of Banmatmat land based on the map submitted by the Respondent in
this appeal, which did not cover:
Lonsing, Ome and Remlili lands.
Applying the law to the facts, it
is clear that by law, the three (3) Interested Parties, namely: Joseph Rauban,
Amon Wari and Joel
Tamtam cannot be joined as parties to the Land Appeal Case in
the Supreme Court. They are not parties to the Land Appeal Case No.52
of 2003.
Section 22 of the Island Court Act is clear to that effect. This section must be
interpreted in a restricted sense in the
light of the judgments of the Court of
Appeal of Vanuatu on that
point.
Are the Appellants barred
in law or estopped from seeking to reinstate their original map used in P.I.C.
Land Case No.02 0f 1997,
in their present appeal by way of hearing de novo in
this Court as an issue already decided upon by the P.I.C. by consent of all
parties on the basis of res
judicata?
The answer to that
question in law must be in the negative for the following
reasons:-
First, the Appellants,
Family Morris Bule, is entitled to question the lawfulness of the consent as to
the boundaries of Banmatmat
land which is reflected in one of the grounds of the
appeal in Land Appeal Case Nol.52 of
2003.
Second, the issue on the
boundaries of Banmatmat land cannot be said to be res judicata as, not only the
consent of the parties including
that of the Appellant (Family Morris Bule) was
called back into question but also the P.I.C. withdrew the land counter-claims
of
the respective interested parties: Family Joseph Rauban, Amon Wari and Joel
Tamtam. The P.I.C. heard the land claim based on the
map of Family Ron Tema
Tamtam between the current Appellants (Family Morris Bule) and the Respondents
(Family Ron Tema Tamtam). There
is no final judicial adjucation on the issue of
the boundaries of Banmatmat.
In
the present case, because the three (3) Interested Parties were also involved in
the consent processes before the P.I.C., it would
be impossible to challenge the
validity of the consent, let alone the consent of the Appellants without giving
an opportunity to
the Interested Parties to be heard because at that point in
time they were still parties to the land claim before the P.I.C. They
were
directly involved in the consent processes about the boundaries of Banmatmat
land and other lands.
On the facts
as found by the Court, the case of the Interested Parties were withdrawn by the
P.I.C. There is no issue as to res judicata
for
consideration.
The Appellants are
interested parties before the Supreme Court in Land Appeal Case No.52 of 2003.
Their interest is self explanatory
from the Judgment of P.I.C. of 1 December
2003. Now that the Appellants re-open that part of the claim by seeking to rely
on their
original map of the claim of Banmatmat boundary, justice and common
sense require that the three (3) Applicants must be given an
opportunity to be
heard as the hearing de novo granted to the Appellants by the Supreme Court, has
the effect of considering all
the lands claimed by the Appellants as original
Claimants as set out in the original map of the Appellants including "Lonsing",
"Ome"
and "Remlili" lands claimed by the Interested Parties and which are not
determined by the P.I.C.
As a
matter of conclusion, there are two (2) practical ways to resolve the matters
between the Appellants, Respondents and the three
(3) Interested
Parties:-
The
first option is for the Supreme Court to continue with the hearing of the Land
Appeal Case No.52 of 2003 between the Appellants
and the Respondents as
determined by the P.I.C. without the Interested
Parties.
If the first option is
adopted, then, the de novo hearing in the Supreme Court will be stayed and will
constitute new sets of land
proceedings to be dealt with by the Supreme Court on
de novo hearing basis or they will be sent back before the P.I.C. for hearing
between the Appellants, the Respondents and the three Interested Parties within
the relevant custom lands as
claimed.
The second solution is to
set aside the Judgment of the P.I.C. of 1 December 2003, to allow the appeal on
a technical point and in
the interest of justice and common sense, send the
matter back before the P.I.C. differently
composed.
Considering the overall
circumstances in the proceedings, the second solution is to be applied in the
present case and I so rule to
that
effect.
The
Court makes the following ORDERS:
1. THAT, the following Interested Parties: Amon Wari, Joseph Rauban and Joel Tamtam cannot be joined as parties in the Land Appeal Case No.52 of 2003. The orders sought in their respective applications to that effect are refused.
2. THAT, the Appellants cannot continue with their Appeal by using their original map of Banmatmat land lodged in the P.I.C. which covers also the following lands: "Lonsing", "Ome" and "Remlili" claimed respectively by Family Amon Wari, Family Joseph Rauban and Family Joel Tamtam without them. Justice requires that Family Amon Wari, Family Joseph Rauban and Family Joel Tamtam must be heard and make representation to defend their interest over the said lands.
3. THAT, to overcome the difficulty as encountered in this case as set out in Order 2 above, justice and common sense require that the appeal be allowed, the Judgment of the Pentecost Island Court dated 1 December 2003 be and is hereby set aside and the Land Case No.02 of 1997 is reverted back to the Pentecost Island Court differently composed.
4. THAT, the Pentecost Island Court must hear the Land Case No.02 of 1997 between the following parties: Family Morris Bule, the original claimants, Family Ron Tema Tamtam, the first counterclaimants, Family Amon Wari as the second counterclaimants, Family Joseph Rauban as the third counterclaimants, Family Joel Tamtam as the fourth counterclaimants.
5. THAT, if Family Amon Wari, Family Joseph Rauban and Family Joel Tamtam have filed separated land cases claiming respectively for Lonsing, Ome and Remlili, the Pentecost Island Court Clerk is directed to combine these cases with Land Case No.02 of 1997, so that the Pentecost Island Court hears them jointly.
6. THAT, the following parties in land Case No.02 of 1997: Family Morris Bule,, Family Ron Tema Tamtam, Family Amon Wari, Family Joseph Rauban, Family Joel Tamtam are informed and notified of a possible joinder of Land Case No.02 of 1997 and any other registered land case claiming custom ownership over "LONSING", "OME" and "REMLILI" lands.
7. There will be no need for the Clerk of Pentecost Island Court to issue further Public Notice. The Clerk is directed to re-list the Land Case No.2 of 1997 as soon as possible.
8. THAT, parties are given opportunity to make submissions as to costs.
DATED at Port-Vila this 19th day of June 2006
BY THE COURT
Vincent LUNABEK
Chief Justice
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URL: http://www.paclii.org/vu/cases/VUSC/2006/47.html