Rombu v Family Rasu [2006] VUCA 22; CAC 07-06 (6 October 2006)

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IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

BETWEEN:	VANUA ROMBU
	First Appellant

AND:	FAMILY RASU
	First Respondent

AND:	PETER TALIVO
	Second Respondent

AND:	GEORGE LIPLIP
	Third Respondent

AND:	SAWA MATARAVE
	Fourth Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice J. Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel V. Fatiaki
Hon. Justice Hamlison Bulu
Hon. Justice Christopher N. Tuohy

Counsel: Mr. Hillary Toa for Appellant
Mr. Saling Stephens for 1st Respondent
No appearance for 2nd Respondent
Mr. Yawha for 3rd Respondent
Mr. Nalyal for 4th Respondent

This is an appeal incorporating three separate matters where individual parties are seeking to appeal against orders that affect them in relation to the prosecution of an appeal in the Supreme Court from a decision of the Santo/Malo Island Court in Land Case No. 3 of 1992.

Judgment was delivered in the Island Court on 28 March 1996. Section 22 of the Island Courts Act [Cap 167] establishes a right of appeal to the Supreme Court from the decision of an Island Court in all matters concerning disputes as to ownership of land, and section 23 describes the powers of the Supreme Court on appeal. Those sections provided:

"22. (1) Any person aggrieved by an order or decision of an island court may within 30 days from the date of such order or decision appeal therefrom to –

An appeal against the decision of the Island Court was lodged within time by the first respondent, Family Rasu on 26 April 1996. The appeal is Land Appeal Case no. 7 of 1996. Little action occurred in the appeal until mid-2005 when it seems steps towards hearing the appeal started to occur. The appeal has not yet been heard. The appeal challenges part of the decision in that Family Rasu claim ownership of a greater portion of the disputed land than the Island Court awarded them.

On 19 July 2005 the appellant Vanua Rombu applied to the Supreme Court to be joined as a party to Land Appeal Case no. 7 of 1996. Vanua Rombu had not been a party to the Island Court proceeding and had not registered a claim with the Island Court in respect of an interest in the land when notice of the Island Court proceedings had been publicly given. His application to be joined in the appeal was dismissed.

The primary judge observed that the Court of Appeal had held in Loparu v Sope [2005] VUCA 4; CAC 26 of 2004, judgment delivered 3 May 2005, that the time limit in s.22 is to be strictly interpreted. Vanua Rombu’s application was made more than ten years out of time.

The first issue for this Court is an appeal by Vanua Rombu against the dismissal of his application to be joined in the Land Appeal case.

The learned primary judge decided the matter on the basis that Vanua Rombu could have become a party to the Land Appeal case if, as a person aggrieved by the Island Court decision, he had sought to appeal against the Island Court decision within the time prescribed by s.22 of the Island Courts Act. That approach has been accepted as correct by the parties to this appeal. For the purpose of this appeal it is not necessary for us to consider whether that approach is correct. It assumes that the expression "any person aggrieved" in s.22 should be widely interpreted to include a person who was not a party to the proceedings in the Island Court. There are statements in the judgment of this Court in Loparu v Sope, CAC No. 26 of 2004, judgment 5 May 2005, which are supportive of the wide interpretation. However, those statements were not essential to the decision in that appeal and should be regarded as obiter dicta. Further it was not necessary to decide that question of interpretation in Kalsakau v Jong Kook Hong [2004] VUCA 2; CAC 30 of 2003 judgment 8 June 2004. It is a question that should be left until it is directly raised and fully argued.

Sworn evidence from Vanua Rombu placed before the primary judge is to the effect that he became aware of the land claim before the Island Court hearing. He went to the Island Court when the case was listed for trial and he sought to be joined as a party. He was told that he could do so only if he paid the prescribed Court fees. However, he was unable to pay the fee and he was, for that reason, precluded from participating. However, he listened to the Court proceedings. When the decision was handed down he heard of the outcome, but it was not until he consulted a solicitor in connection with his application to be joined as a party to the Land Appeal in 2005 that he saw a full copy of the judgment.

At times material to this case, the Island Court Act vested jurisdiction in Island Courts to determine disputed land claims. The constitutional basis for that jurisdiction is discussed in Valele Family v James Touru, [2002] VUCA 3; CAC No. 1 of 2002, judgment 26 April 2002. The procedure laid down in the Island Courts (Civil Procedure) Rules 1984 is designed to ensure that anyone who claims an interest in custom land becomes aware when a claim is made in an Island Court to establish ownership. Order 6 Rule 6 provided that the clerk of Court shall set a date for the hearing of a land claim which is not less than 30 days hence. The clerk shall then issue a summons requiring attendance of the defendant or defendants at the hearing of the claim. The proceedings are then served on the defendant or defendants, being the other parties named by the plaintiff as parties against whom the claim is made. Rule 8 requires that by notices posted on the land and by other appropriate means the clerk shall advise the public of the date of the hearing of the cause and the names of the parties; and the clerk shall inform the public that all person having interest in the proposed cause shall as soon as possible apply to the Court to be joined as plaintiffs or defendants as the case may be. Rule 9 requires that the notice shall continue for a period of 30 days from the date when the notices are posted on the land.

Order 18 of the Island Court (Civil Procedure) Rules lays down procedures to be followed at the hearing. Rule 9 of that Order requires that the Court visit the land before reaching a decision.

In combination, these various provisions as to notice and the Court’s attendance on the land are intended to remove the chance that someone who has a genuine interest in the land will not become aware of the proceedings. In the present case, it seems the procedures brought the claim to the notice of Vanua Rombu. The time limit in s.22 recognises that it is important to bring finality to disputed land claims and to this end, the Act provides a strict time limit within which any aggrieved person must challenge the decision.

In Raupepe v Raupepe & others, [2000] VUCA 6; CAC No. 12 of 1998, judgment delivered 20 October 2000, the Court of Appeal observed:

"It is a fundamental procedural requirement in Court proceedings concerning the ownership of land that all people who claim, or are likely to claim, an interest in the land be before the Court. There are two reasons for that. The first, is the natural justice reason to ensure that those whose interest might be affected have the opportunity to be heard at the trial and to put whatever information they want to put in support of their position or against somebody else’s position. The second reason is that the judgment of the Court because it determines for the world at large who owns the land, must be one that binds all those people who might have an interest in the land. A judgment would not bind those people unless they are before the Court as parties"

The Court there recognised the conclusive effect of a final judgment in a land claim brought under the Island Courts Act. The natural justice issue discussed in Raupepe is addressed by those provisions of the Island Court (Civil Procedure) Rules discussed above which are intended to give wide notice to everyone who might claim an interest in disputed custom land.

The language of s.22 does not permit of any exception to the strict time limits which it imposes, and the application of s.22 in the present case must defeat the late claim of Vanua Rombu, even if he is to be treated as a "person aggrieved" by the Island Court decision.

Counsel for Vanua Rombu advanced the submission that the application for s.22 infringed his constitutional fundamental rights and freedoms, and in particular rights and freedoms guaranteed by Article 5 (1) (j) which recognises an entitlement to protection for the privacy of the home and other property and from unjust deprivation of property. He contended that to prevent him from now asserting his ownership rights to the custom land in question constituted an unjust deprivation of property.

The effect of this submission is to argue that s.22 of the Island Court Act exceeds the constitutional power of Parliament, and is therefore invalid. This is an argument that can be raised only in proceedings which follow the requirements of a Constitutional Petition, to which the Republic of Vanuatu must be a party: see Rule 2.4 of the Constitutional Procedure Rules, Order No. 26 of 2003. It is not an argument that can be determined in the present proceedings. However we think it is appropriate that we make two observations.

First, the Constitution requires Parliament to establish a process for determining disputed land claims, and the process is that which is outlined earlier in this judgment. Inevitably, in the resolution of any disputed claim there will be parties who are dissatisfied with the result. So long as the process for determination of the claims is a fair and reasonable one, constitutional rights will not be infringed even though the process has the effect of defeating the alleged claim of an unsuccessful claimant. The result will not be an "unjust" deprivation of property. The judgment of the Court of Appeal in Francois v Ozols, [1998] VUCA 5; CAC No 155 of 1996 is supportive of this view. In that case the Court of Appeal held that: -

"If the effect of one of its Orders was to remove property or money from the litigant, such removal could not constitute an "unjust deprivation of property" within the meaning of Article 5 (1) (j). The deprivations would be one in accordance with law (at pg 11)."

A second observation is that the fundamental rights and freedoms recognised in Article 5 (1) of the Constitution are "subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and wealth." In balancing the rights of parties the importance of achieving certainty for those who are parties to a dispute, and the importance in the public interest of bringing disputes to finality are factors that must be brought into account. These considerations provide the justification for imposing limitation periods on the enforcement of rights, and must be taken into account in considering the reasonableness of the requirements of s.22 of the Island Courts Act.

Although in the particular circumstances of this case the situation of Vanua Rombu may attract a measure of sympathy, s.22 is plain, and the primary judge was clearly correct in dismissing his application.

The other two issues raised in this appeal concerns separate applications that were made to the primary judge by the third respondent and the fourth respondent for leave to file a "cross appeal" in the appeal instituted by Family Rasu. Whilst Family Rasu commenced an appeal within the time prescribed by s.22, the third and fourth respondents took no action within the prescribed time limits, and belatedly thought it appropriate to seek leave to cross appeal to challenge the contentions of Family Rasu before the Supreme Court, and to argue for an outcome which differs from the Island Court decision. The primary judge purported to grant leave to each of the third respondent and the fourth respondent to file a cross-appeal outside the time limit prescribed in s.22. Before this Court, Family Rasu contends that s.22 does not permit any variation of the strict time limits and that the leave granted to the third and fourth respondents should be set aside.

The Island Courts Act makes no provision for cross appeals. We consider it does not do so for the simple reason that a notice of cross appeal by other parties is not necessary. Once an appeal is validly instituted by one of the parties, the power of the Court under s.23 of the Island Courts Act is enlivened. The Court is authorised by s. 23 (a) to " make any such order .................. as the Island Court could have made .......... in such cause or matter". In other words, once the appeal is instituted, the Supreme Court can make whatever order the Island Court could have made, as is appropriate. The other parties to the appeal are able to contend for whatever outcome they think is proper. If on the hearing of the present appeal, the Supreme Court concludes that there should have been a result more favourable to the third or fourth respondent, the Court is empowered under s.23 to reflect that conclusion in its judgment. To achieve such an outcome, formal cross appeals by the respondent are not necessary.

The orders which purported to give leave to file cross appeals out of time are unnecessary and of no effect. Nothing would be achieved by setting them aside. In the circumstances we think that the appeals by Family Rasu should be dismissed. As the applications before the primary judge were unnecessary, we do not think it would be appropriate to allow costs on this appeal to the third and fourth respondents.

Hon. Chief Justice Vincent Lunabek	Hon. J. Bruce Robertson J.

Hon. John. W. Von Doussa J.	Hon. Daniel V. Fatiaki J.

Hon. Hamlison Bulu J.	Hon. Christopher N. Tuohy J.

Court of Appeal of Vanuatu

Rombu v Family Rasu [2006] VUCA 22; CAC 07-06 (6 October 2006)