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Sohe Family v Malo Island Land Tribunal [2019] VUCA 2; Civil Appeal Case 1675 of 2018 (22 February 2019)

Before: Chief Justice Vincent Lunabek

Justice J. Von Doussa

Justice J. W. Hansen

Justice D. Fatiaki

Justice G.A. Andree Wiltens

Justice S. Felix

Counsels: Mrs Marisan Vire for the Appellant
Mr Tom Loughman for the First and Second Respondents
Mr Edward Nalyal for the Third Respondents

Hearing Date: 11^th February 2019

Date of Decision: 22 February 2019

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JUDGMENT

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1. Introduction
   

1. This Court is satisfied that the Fourth, Fifth, Sixth and Seventh Respondents have been properly served with the relevant documents including the notices to the appeal hearing but failed to appear and therefore agrees to proceed with this appeal.
   
2. The appeal was advanced on the basis that the Judge was wrong in his ruling dated 14^th May 2018 refusing to allow an extension of time for the appellant to file a Judicial Review claim under Rule 17.5(1) of the Civil Procedure Rules.
   
3. We have not exactly followed the grounds of appeal as filed but focussed on the points relied upon by Ms Vire in the course of her submission to give a complete response to those grounds relied upon by the appellant in this court and in the court bellow.
   

2. Background
   

4. The Appellant was a party in a customary land dispute proceeding that started in 2004 at the Joint Village Land Tribunal level under the now repealed Customary Land Tribunal Act.
   
5. The proceedings continued through appellate process to the Second Respondent and then to the First Respondent still under the now repealed Customary Land Tribunal Act. The First Respondent on 28 December 2005 made the declaration as to custom ownership which the appellant now seeks to challenge.

6. The appellant on 10^th October 2017, applied to the Supreme Court to allow them an extension of time to file a Judicial review Claim for the review of the decisions of the First Respondent on five grounds;
   
7. The first ground is that the First Respondent was wrong in allowing new parties to join in the proceedings. The arguments on the second, third, fourth and fifth grounds are an attempt to challenge the findings of the tribunal in relation to the custom law and the evidence of custom land boundaries.
   
8. Saksak J, in his ruling of May 14^th 2018, refused the application of for an extension of time on the basis that the appellants were a party in the 28^th December 2005 proceeding before the First Respondent and that there was nothing prejudicial to them in this situation.
   

100. Discussion
     

9. With regards to the only reason for delay submitted by Ms Vire, we do not accept that the non-performance of the appellant’s former lawyer for a delay of about 12 years is a valid reason.
   
10. As for the merit of the proposed application for Judicial Review, the issue of allowing a new party to be joined in the appeal stage of a customary land dispute proceeding is a legal issue that has been addressed by this Court in the case of West Tanna Area Council Land Tribunal v Natuman [2010] VUCA 35; Civil Appeal 21 of 2010 (3 December 2010). The Court said:
    

“The term "the parties to the dispute" is not defined. Clearly any person to the initially-notified dispute will be a party. The term is not intended to be a restrictive one. Otherwise it would not be consistent with the way the various tribunals are to operate. However, especially because section 27 provides for all parties to be given a full and fair hearing, it is clear that the "parties" may include any party whose proper interests may be affected by the resolution of the dispute. Those parties will depend on the circumstances of the particular case. In certain circumstances, as the primary judge observed, those persons may include persons who under custom law may have an interest in the land in dispute even though they are not named in the original notice of dispute.”

11. The adding of a new party to the dispute at an appeal stage by the First Respondent was therefore within the meaning of the now-repealed Customary Land Tribunal Act;
    
12. As for the other four grounds relied upon in their claim for Judicial Review before the Court below, we consider those grounds allege factual errors made within jurisdiction.
    
13. The points of custom and land boundaries are substantive matters within the jurisdiction of the land tribunals and cannot be challenged through a Judicial Review proceeding as attempted by the Appellant.
    
14. They can only be challenged through appellate process and within a period of 21 days after the announcement of the decision as provided for in Section 22(1)(b) of the now repealed Customary Land Tribunal Act.
    
15. In this present case, all the appellate steps have been exhausted and the appeal periods also have expired;
    
16. There was nothing irregular as far as procedural rules and processes are concerned that could give the court the basis to intervene by way of a judicial review.
    
17. An attempt to re litigate the matter through a Judicial Review claim is an abuse of process
    

4. Decision
   

18. The appeal is therefore dismissed
    
19. The Appellant is ordered to pay costs of 50.000 VT to the First and Second Respondent and 10.000 VT to the Third Respondent.
    

Dated at Port Vila this 22^nd of February 2019

BY THE COURT

Hon. Vincent LUNABEK

Chief Justice.