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Umou v Erromango Island Land Tribunal [2008] VUSC 65; Civil Case 93 of 2007 (8 August 2008)

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

Civil Case No. 93 of 2007

BETWEEN:

JACK UMOU
Claimant

AND:

ERROMANGO ISLAND LAND TRIBUNAL
Defendant

Coram: Justice C. N. Tuohy

Counsels: Mr. Yawah for the Claimant
Mr. Nalyal for the Defendant

Date of Hearing: 3 June 2008
Date of Decision: 8 August 2008

RESERVED JUDGMENT

1. This is an application which invokes the Court’s supervisory jurisdiction under section 39 of the Customary Land Tribunal Act No. 7 of 2001 in relation to a decision of the defendant which declared Samuel Narai the true custom owner of "Ponive" land on North Erromango.
   
2. It is useful to set out the section at the beginning as it prescribes the limits of the Court’s powers.
   

"39 Supervision of land tribunals by Supreme Court

(1) If a person who is not qualified to be a member or a secretary of a land tribunal participates in the proceedings of the tribunal, a party to the dispute may apply to the Supreme Court for an order:

(a) to discontinue the proceedings before the tribunal or to cancel its decision; and

(b) to have the dispute determined or re-determined by a differently constituted land tribunal.

(2) If a land tribunal fails to follow any of the procedures under this Act, a party to the dispute may apply to the Supreme Court for an order:

(a) to discontinue the proceedings before the tribunal or to cancel its decision; and

(b) to have the dispute determined or re-determined by a differently constituted land tribunal.

(3) The Supreme Court in determining an application may make such other orders as it considers necessary.

(4) Subject to the Constitution, the decision of the Supreme Court on any application:

(a) is final and conclusive; and

(b) is not to be challenged, appealed against, reviewed, quashed, set aside or called in question in any court on any ground."

3. The hearing was a rehearing which was held pursuant to a consent order of this Court in Civil Case No. 9 of 2006. It took place at Port Narvin on 31 May and 1 June 2007.
   
4. The claimant asks the Court to quash the Tribunal’s decision on 3 grounds:-
   
   • (a) The required Notice of the hearing was given before the establishment of the tribunal in breach of the procedures set up by the Act.
     
   • (b) Two of the judges had been observers at the previous hearing and this disqualified them from acting as judges at this hearing.
     
   • (c) The Chairman of the previous Tribunal Mike Uyori was seen talking to the judges so this was unfair.
     
5. All 3 issues were canvassed in the sworn statements filed by the claimant although his counsel’s written submissions were directed to the first point only. The Court will deal with all three.
   
6. The "Notice of Rehearing" was in evidence. It very clearly identified the case and the tribunal. It provided:-
   

"21 DAYS NOTICE BLONG HEARING IA I STAT LONG NUMBER 2 MAY 2007 KASSEM 22 MAY 2007. MITING BAE I OPEN LONG 22 MAY 2007 KASEM 24 MAY 2007. TIME 8.00 AM TO 3.00 PM.

PLACE BLONG MEETING EMI LONG PORT NARVIN VILLAGE, NORTH EAST ERROMANGO.

ERROMANGO ISLAND LAND TRIBUNAL ISTAP APPEAL LONG TUFALA PARTIES CONCERN BLONG STAP LONG PLES BLONG MEETING LONG DEIT IA."

It was signed by David Naling, Chairman, Erromango Island Land Tribunal. The notice was displayed in both Port Narvin Village and Dillons Bay Village where the claimant lives. The evidence does not disclose specifically the day it was put up but I infer that it was on 2 May.

7. David Naling had by letter dated 2 May 2007 been appointed chairman by the paramount Council of Chiefs of Erromango Island called Erromango Natmonuk Simanlou Council of Chiefs, signed by the Chairman of that Council, Mike Uyori who had also been the Chairman of the previous tribunal. On the same day, Mr. Naling wrote directly to the parties, Jack Umou Family and Samuel Narai Family to advise the date of hearing and the costs which each party had to pay. There is no suggestion that the claimant did not actually receive notice of the hearing on or about 2 May.
   
8. In fact the hearing did not start on 22 May. On 29 May Erromango Simanlou held a meeting at which the judges for the rehearing were appointed. They were:-
   

David Narai (Chairman)

Andrew Naimai

Joe Yokre

John Ativi

Bill Nivselu (Secretary)

9. The Tribunal commenced its hearing on 31 May. At the outset, the claimant objected to the hearing proceeding. His objection appears to have been based on a belief that the case was still before this Court. The objection did not relate to the notice of hearing. After adjourning to consider the objection, the Tribunal rejected it and resumed the hearing.
   
10. The other party Samuel Narai then presented his evidence which consisted of a considerable number of witnesses as well as himself. The claimant, who was present throughout the hearing, was asked to present his claim and his witnesses. He declined to do so. One of his witnesses Joe Kohwe, answered questions which the judges directed to the claimant but the claimant provided no evidence of the basis for his claim to custom ownership of Ponive land despite being given ample opportunity to do so. At the end of the 2 day hearing, the Tribunal gave its decision.
    
11. The claimant’s argument about the 21 day notice is based upon section 25 of the Act which provides:-
    

"25. Notice of hearing

(1) Within 21 days after the establishment of a land tribunal, the secretary of the land tribunal must give notice under subsection (2) to the parties to the dispute.

(2) The notice must:

(a) be in writing in Bislama, French, English or another language of the one or more of the parties to the dispute; and

(b) specify the date and time of the meeting of the land tribunal to hear the dispute; and

(c) the place of meeting of the land tribunal, being a place which is convenient having regard to the location of the land, the residences of the tribunal’s members, the residences of the parties and the availability and security of meeting places; and

(d) the name and address of the secretary of the land tribunal; and

(e) if applicable – the grounds of the appeal."

12. Section 26 is also relevant.
    

"26. Start of hearing and objections

(1) The land tribunal must, so far as practicable, meet to hear a dispute at the time and on the date and at the place specified in the notice given under section 25.

(2) Whenever a land tribunal first meets to hear a dispute, the chairperson must:

(a) open the meeting with a prayer; and

(b) introduce himself or herself, the other members and the secretary of the land tribunal; and

(c) ask if there are any objections to the qualification of the chairperson, any of the other members or the secretary.

(3) Subject to subsection (4), the chairperson must consider any objection, and if he or she considers that the objection is justified, he or she must disqualify the person concerned and adjourn the meeting to enable another person to be appointed.

(4) If the objection is to the chairperson of the land tribunal, the other members of the tribunal must consider the objection, and if they consider that the objection is justified, they must disqualify the chairperson and adjourn the meeting to enable another chairperson to be appointed.

(5) If a party to a dispute fails to follow any of the procedures under this Act, another party to the dispute may apply to the land tribunal for an order directing the party to comply with the procedure."

13. The claimant argues that the Tribunal was only established when the members (other than the Chairman) were appointed by Erromango Simanlou only a day or two before the hearing started. Therefore the notice was given before the establishment of the Tribunal not within 21 days after it.
    
14. The defendant argued that this was a rehearing, not a new claim, and that the Tribunal was actually established in 2005 prior to the first hearing. All that happened at the Simanlou Council hearing of 29 May is that the Council chose new judges to sit on the Tribunal.
    

Discussion

15. The process is set out in Part 5 of the Act. It starts with the giving of a notice of appeal under section 22 to the Chairman of the Island Council against a lower tribunal’s decision. Under section 23, the Chairman must then convene a meeting of the Simanlou within 21 days. Simanlou must then establish an island land tribunal to determine the appeal: section 22 (2). The procedure for appointment of the members where, as in Erromango, there is only one custom area is set out in section 22 (3) and (4). Reading section 22 as a whole it is clear that "establishing" an island land tribunal in terms of section 22 (2) means appointing its members pursuant to (in this case) section 22 (3) and (4). Obviously the original tribunal was established in 2005.
    
16. Rehearings are dealt with in section 24 of the Act. Section 24 (1) gives any party to appeal to an island land tribunal an absolute right to a rehearing on giving notice within 21 days of the announcement of the original decision. Section 24 (3) requires the chairperson of the island council of chiefs on receiving such a notice to then convene a meeting of the council within 21 days. Section 24 (4) provides that the island council
    

"must establish another island land tribunal to rehear the dispute. The island land tribunal is to conduct the rehearing as if it was hearing and determining the dispute for the first time".

17. What happened in this case does not fit exactly into the process outlined above. The rehearing was not initiated by a notice under section 24 of the Act. It was initiated by a consent order which simply said "the land dispute the subject of this proceeding be heard by a differently constituted Erromango Island Land Tribunal". It did not specifically state that the procedure set out in section 24 was to apply. However the consent order could not be effective without a process for constituting the different tribunal so to make sense of the order, it must be assumed that the process in section 24 was to apply.
    
18. It follows from the above that the Tribunal which reheard this dispute was established only when its members were appointed at the Simanlou meeting held on 29 May.
    
19. However both parties in this case appear to be under the misapprehension, that there must be 21 days notice given of a hearing or rehearing. A careful reading of section 25 (1) set out above shows that that is not so. The 21 days refers to the period within which notice must be given after the tribunal is established, not the length of the notice. There is no length of time fixed for the notice. No doubt it must be one which is reasonable in the circumstances to enable a party to prepare for the hearing.
    
20. The submission made by the claimant is technically correct. The notice of hearing was not given within the 21 day period after the establishment of the tribunal, it was given about 28 days before. In reality though, the claimant had ample time to prepare his case. Furthermore he and his witnesses were there. The only thing had had little notice of was the membership of the tribunal.
    
21. There is no doubt though that he had enough time to decide whether he would object to the membership. The claimant said in his first sworn statement, as did his witness Albea Frank, that he did object to judges Andrew and John who were observers at the previous tribunal hearing. The Tribunal did not accept that objection.
    
22. In the view of the Court, the Tribunal was right not to accept the objection. There is no evidence that judges Andrew and John played any part in the earlier hearing, either as witnesses or judges. It is no basis to find bias simply because they may have heard the evidence or some of it before as observers.
    
23. Nor is there an substance in the complaint about Mike Uyori. There is no evidence that he was talking to the members of the Tribunal about the case before them. The hearing took place over 2 days. The fact that at some unspecified time during these 2 days, a member or members of the Tribunal were seen speaking to him is no sufficient basis for inferring that in some way, their decision was tainted. Allegations of bias of this nature must be looked at with common sense and in the light of the realities of living in a village.
    
24. All in all, I am satisfied that there was no actual unfairness in the way this rehearing took place. On the contrary, reading the well kept minutes, I am impressed by the fairness with which the rehearing was conducted. In that light, I have to consider whether the technical breach of section 25 (1) requires the Court to overturn the Tribunal’s decision.
    
25. Section 39 is curiously worded. It does not directly say what the Court is to do if one of the matters in the section is made out. However it does not require the Court to make one of the orders which it is empowered by the section to make. I consider that it was Parliament's intention to give the Court a discretion. It is very unlikely that Parliament would have wished the Court to overturn an Island Land Tribunal decision on the basis of some minor and inconsequential irregularity in procedure. I consider that that is what has happened in this case. The claimant actually had full opportunity to present his case but chose not to. His allegations of bias also have no substance. In the exercise of the Court’s discretion, I decline to make any order disturbing the decision of the Tribunal.
    
26. The application is dismissed. The defendant is entitled to costs which are to be fixed by the Court if not agreed.
    

DATED at Port Vila, this 8th day of August, 2008.

C. N. TUOHY
Judge.