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Malas v Republic [2007] VUSC 2; Constitutional Case 02 of 2005 (7 March 2007)

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

Constitutional Application No.02 of 2005

IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC OF VANUATU (hereinafter referred to as "the Constitution")

AND IN THE MATTER OF: ISLAND COURTS ACT [CAP.167] as amended ("hereinafter referred to as "the Act")

AND IN THE MATTER OF: THE EFATE ISLAND COURT
established by and of the Act (hereinafter referred to as "EIC")

BETWEEN:

NOEL MALAS, care of Emere, Efate, who is a member of the Family known as FAMILY KALTAPANG MALASTAPU of Imere, Efate, Republic of Vanuatu
Applicant

AND:

THE REPUBLIC OF VANUATU
Respondent

AND:

FAMILY MALASIKOTO
Interested Party No.1

AND:

FAMILY ELMU LABUA KALTAMATE
Interested Party No.2

AND:

FAMILY LAKELEOTAUA
Interested Party No.3

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Silas Hakwa for the Applicant
Mr Dudley Aru, Solicitor General, for the Respondent Government
Mr James Tari for the Interested Party No.1
Mr George Boar for interested Party No.2
Mr Edward Nalial for Interested Party No.3

REASONS FOR JUDGMENT

This is a Constitutional Application dated and filed on 29 March 2005 by Mr Silas Hakwa on behalf of the Applicant, Noel Malas who is a member of the Family known as FAMILY KLATABANG MALASTAPU of Imere, Efate. The Applicant applies for:

1. The enforcement of his fundamental rights prescribed by Article 5(1)(d), (g) and (k) of the Constitution pursuant to the provisions of the Article 6 (1) and (2) of the Constitution.

2. Relief pursuant to the provisions of Article 53(1) and (2) of the Constitution.

The Applicant says that the E.I.C. has acted in breach of Article 5(1)(k) of the Constitution and applies for the following ORDERS, DECLARATIONS, REMEDY OR RELIEF:

1. A declaration that the Judgment which the Efate Island Court made in Efate Island Court Land Case No.01/97 on 22 July 2004 is invalid, void and of no effect.
2. An Order quashing the Judgment which the Efate Island Court made in Efate Island Court Case No.01/97 on 22 July 2004.
3. A mandatory order directing the Efate Island Court comprising of a Supervising Magistrate and three (3) Justices other than those who made the Judgment on 22 July 2004 forthwith to re-hear the claims which the three (3) Claimants in Efate Island Court Land Case No.01of 1997 filed in that Court but on the condition that the land or areas of land which is the subject of their claims does not include any part of the land which is and forms part of the Applicant’s claim in the Efate Island Court Land Case NO.06 of 1993.
4. Further and/or in the alternative, in addition to the order, declaration or relief sought in paragraphs A, B and C above, an order that the Efate Island Court comprising of a Supervising Magistrate and three (3) Justices other than those who made the Judgment on 22 July 2004 forthwith to re-hear the claim in the Efate Island Court Land Case NO.01/97 but on the condition that the Applicant is made a party to the proceedings.
5. Costs of and incidental to this Application.
6. Such further or other orders, relief or remedy as the Court shall deem fit.

The Applicant, Noel Malas, filed a sworn statement on 29 March 2005 in support of his claim.

The Respondent Government filed a response to the Constitutional Application. The Respondent denies that the EIC has acted in breach of Article 5(1)(a) and (j) of the Constitution and that the Constitutional Application be dismissed in its entirety and costs against the Applicant.

On 1 September 2005, the Court granted leave for Messrs James Tari, George Boar and Edward Nalial to appear and make submissions on behalf of their respective interested parties they each represented. The Court also granted Mr Hakwa’s Application to stay the EIC Judgment dated 22 July 2004. The Court, then, proceeded to hear the Constitutional Application on the same date.

The following counsel, Messrs Edward Nalial, George Boar and James Tari objected for the Applicant to make such an application because of the following reasons:-

(1) Mr Noel Malas is not a party to Land Case No.01 of 1997 in the Efate Island Court.
(2) Family Malasikoto, Family Elmu Labua Kaltamate and Family Lakeleotaua are parties to Land Case No.01 of 1997 and have all the legal requirements of the process and procedures before the Efate Island Court delivered its Judgment on 22 July 2004.
(3) In the Constitutional Application No.02 of 2005, there is no pronouncement as to whether Noel Malas is a party or is the custom owner.

On 1 September 2005, the Court made the following ORDERS:-

"ORDERS

1. That the Constitutional Application No.02 of 2005 is dismissed.
2. That the costs are awarded in favour of the Respondent Government. The costs are assessed in Vatu 20,000 to be paid within 7 days from the date of the Order.

Dated at Port-Vila this 1st day of September 2005
BY THE COURT

Vincent LUNABEK
Chief Justice"

The reasons for the dismissal of the Constitutional Application are set out below. The detailed histories of the matter are contained in the sworn statement of the Applicant, Mr Noel Malas of 29 March 2005. A summary of the background information is provided below:

▪ In July 1993, Family LEIPOE KALTOAMALAS claimed land called "PONATOKA" in Land Claim No.06 of 1993.
▪ Efated Island Court made a publicity of the land claim pursuant to Island Court processes and rules.
▪ Family Kaltapang Malastapu, whose application is a member, filed a Land Counter-claim with a map and history of Family Malas.

There were 7 Claimants in Land Case No.06 of 1993. They are as follows:

(a) Family Leipoe Kaltoamalas
(b) Family Kaltapang Malastapu
(c) Family Kaltongo Maripongi Tarimiala Munumunulou
(d) Family Lakeleo Taua
(e) Family Masau Vakalo
(f) Family Taravaki
(g) Family Songoriki

All parties in Land Case No.06 of 1993 submitted their respective map and family histories over Ponatoka land.

On 18 June 1997, Family Malasikoto of Imere, Efate filed a separate land claim on PANGONA LAND. Pangona land is inside the old title No.80 at Devil’s Point, Efate. Family Malasikoto submitted a map and their histories. The land claim over Pangona was Land Case No.01 of 1997.

Efate Island Court published the land claim over Pangona in Land Case No.01 of 1997 in accordance with the process and rules of the Island Court. Two (2) other Families counter-claimed Pangona land. They were:

(a) Family Lakeleo Taua
(b) Family Elmu Labua Kaltamate

Only Family Lakeleo Taua was a party in both Land Cases No.06 of 1993 and No.01 of 1997. Family Malasikoto and Family Elmu Labua Kaltamate have hot lodged a land claim in Land Case No.06 of 1993.

Both Ponatoka and Pangona lands share common boundaries.

On 5 July 2004, the Efate Island Court heard Land Case No.06 of 1993 and gave its oral Judgment on 12 July 2004. The reasons were published on 13 July 2004.

The following three (3) parties appealed the Efate Island Court Judgment dated 13 July 2004:

(a) Family Kaltongo Maraipongi Tarimiala Munumunulou;
(b) Family Kaltapang Malastapu; and
(c) Family Leipoe Kaltoamalas filed an appeal by way of Judicial Review.

The Applicants Family filed their appeal against the Judgment of Efate Island Court dated 13 July 2004, on 13 August 2004, in Land Appeal Case No.58 of 2004.

In or about 19 July 2004, the Efate Island Court (same composition) sat to hear Land Case No.01 of 1997 over Pangona land. The two (2) other parties withdrew their counter-claims. The Efate Island Court declared Family Malasikoto as custom owners of Pangona land. There was no opposition. The Efate Island Court delivered its Judgment on 22 July 2004. It is said that the complaint of the Applicant is that when one compare the initial boundaries of the Kaltapang Malastapu Family and the map of Malasikoto, it is difficult for the Claimant to show the Court which part of Ponatoka his family owned because the Efate Island Court in its Judgment of 22 july 2004, included areas of land within the boundaries of Ponatoka land. That is the basis of this Constitutional Application.

The Solicitor General submitted that the Constitutional Application must be struck out for the following reasons:-

First, because for the Applicant to be entitled to the relief under Articles 6(2) and 53(2) of the Constitution, the Applicant must first establish that he has a right over the land which he claimed has been infringed by the Judgment of the Efate Island Court of 22 July 2004. In the present case, the Applicant cannot establish that he has a right over the land.

Second, an appeal against the Judgment of Efate Island Court dated 22 July 2004 is pending before the Supreme Court. The Applicant had not exhausted all avenues available.

Finally, the Applicant seeks orders, declarations, quashing orders and mandatory orders of the Judicial Review type remedies. They are available under the Judicial Review type claim but not the Constitutional Application.

Articles 5(1); 6(1), (2) and 53(1), (2) of the Constitution are the relevant provision they provide as follows:-

"CHAPTER 2

FUNDAMENTAL RIGHTS AND DUTIES

PART 1 – Fundamental Rights

FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL

5. (1) The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health-

(a) life;
(b) liberty;
(c) security of the person;
(d) protection of the law;
(e) freedom from inhuman treatment and forced labour;
(f) freedom of conscience and worship;
(g) freedom of expression;
(h) freedom of assembly and association;
(i) freedom of movement;
(j) protection for the privacy of the home and other property and from unjust deprivation of property;
(k) equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes for the special benefit, welfare, protection and advancement of females, children and young persons, members of under-privileged groups or inhabitants of less developed areas."

"ENFORCEMENT OF FUNDAMENTAL RIGHTS

6.(1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.

(2) The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right."

"APPLICATION TO SUPREME COURT REGARDING INFRINGEMENTS OF CONSTITUTION

53. (1) Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.

(2) The Supreme Court has jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution."

The Applicant claims that the Efate Island Court has acted in breach of the Article 5(1)(d), (j) and (k) of the Constitution. Is that claim tenable?

The answer to the claim is in the negative. I accept the submission of the Solicitor General that for the Applicant to claim for an enforcement of the breach of his fundamental rights, the Applicant must first establish that he has a right on the land. Second, the Applicant must then establish that that right has been infringed by the Judgment of the Island Court dated 22 July 2004.

In the present case, the facts as illustrated in the sworn statement of the Applicant show the following:

▪ The Applicant challenges the Judgment of the Efate Island Court Land Case No.01 of 1997 dated 22 July 2004 on the basis of a Constitutional Application.
▪ He seeks a declaration that the Judgment of the Efate Island Court of 22 July 2004 is declared invalid, void and of no effect.
▪ He seeks for an order quashing the Judgment of the Efate Island Court Land Case No.01 of 1997 dated 22 July 2004.
▪ He seeks also mandatory relief. These are judicial review type remedies. They are available under the judicial review claim but not on Constitutional Application.
▪ Further, the Applicant was not a party to Land Case No.01 of 1997 over Pangona land.
▪ The Applicant has no declaratory right over Pangona land.
▪ Further the Judgment of the Efate Island Court in Land Case No.06 of 1993 on 13 July 2004 in which the Applicant is a party and now appellant is still pending before the Supreme Court for hearing. There is yet a final declaratory right to be determined.

It is clear that the Applicant fails to establish that he has a right of property over the Pangona land or part of Ponatoka land claimed to have been affected by the Judgment of the Efate Island Court of 22 July 2004.

It is also clear that, the Efate Island Court Judgment of 22 July 2004 complained of was issued by the Efate Island Court in accordance with the Island Court’s functions pursuant to the Island Courts Act [CAP.167] and as such was effected in accordance with the law. There were no rights established by the Applicant to seek protection under the Constitution.

The Constitutional Application is misconceived. It is therefore dismissed as there is no proper cause for such an application.

These are the reasons of the Orders issued by the Supreme Court on 1st September 2005.

DATED at Port-Vila this 7th day of March 2007

BY THE COURT

Vincent LUNABEK
Chief Justice