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Natnaour v Vahas Village Land Tribunal [2015] VUSC 154; Judicial Review 10 of 2014 (2 October 2015)

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

Judicial Review Case No. 10 of 2014

BETWEEN:

MANASEH NATNAOUR AND TOM ANDREW NATNAOUR
First Claimants

AND:

CHRISTIAN OSKA, LUWI SIMEON & NOEL OSKA
Second Claimant

AND:

VAHAS VILLAGE LAND TRIBUNAL
First Defendant

AND:

GEORGE TOA AND CHARLES TOA
Second Defendants

Hearing : 29 September 2015 at 10:00am
Date of Judgment : 2 October 2015
Before : Justice Stephen Harrop
Appearances : Jack Kilu for the Claimants
Jennifer Warren (SLO) for the First Defendant
Daniel Yawha for the Second Defendants

RESERVED JUDGMENT OF JUSTICE SM HARROP AS TO ALTERNATIVE GROUND FOR LEAVE TO FILE JUDICIAL REVIEW CAIM OUT OF TIME

Introduction

1. On 12 June 1990, the Malekula Island Court heard a dispute relating to customary land known as Apendihen. It declared Manaseh Nataour as custom owner of that land in a decision dated 21 December 1990.

2. In what became known as Land Appeal Case 9 of 1998 several affected parties appealed to the Supreme Court against the Island Court decision.

3. On 5 July 2004 the Supreme Court (Justice Treston) with the consent of all parties transferred the appeal to a village land tribunal pursuant to section 5 of the Customary Land Tribunal Act [Cap 271] (" the CLT Act").

4.The first defendant, the Vahas Village Land Tribunal ('VVLT"), issued a decision on 21 May 2009 declaring one of the second defendants, George Toa, to be the custom owner of the land in question.

5. On 10 June 2014 the claimants applied for leave to file a judicial review claim out of time, challenging both Justice Treston's decision and that of the VVLT. In a reserved judgment delivered on 6 March 2015, I rejected the challenge to Justice Treston's decision.

6. The hearing of the second limb of the application for leave took place on 29 September 2015 and this judgment determines that application.

Relevant Procedural History

7. The procedural background leading up to the leave application is somewhat complex but it is important to summarise it.

8. I first note that the only potential legitimate claimant is Tom Andrew Natnaour ("TN"). Manaseh Natnaour, his father, was involved in the Island Court case but has since died. The second claimants, as will be explained, are occupants but not the custom owners of the land in question and it is accepted they have no standing to mount a judicial review.

9. There is no suggestion that TN was aware of the decision of the VVLT until approximately April 2012. On 23 January 2012, George Toa and other members of his family lodged a claim, in Civil Case 9 of 2012, for damages for trespass against the second claimants and their families ("the Oskas") who were occupying the land. The latter applied to strike out the claim on the ground that the VVLT decision of 21 May 2009 was invalid, that the Island Court decision from 1990 held sway and that they were in occupation with the consent of the true custom owners, the Natnaours. Importantly for present purposes, TN filed a sworn statement on 16 April 2012 as a witness in support of that strike out application, so he was aware at least by that date of the adverse VVLT decision of 21 May 2009.

10. It became apparent during conferences in Civil Case 9 of 2012 that the validity of the VVLT decision was being challenged by the Oskas. The civil claim was stayed by Justice Spear on 5 August 2013 pending resolution of the judicial review proceeding duly launched by the Oskas (Judicial Review Case 9 of 2013) on 21 June 2013.

11. Judicial review case 9 of 2013 was struck out by me on 10 March 2014 for procedural defaults on the part of the Oskas. However Mr Kilu on their behalf made an application to reinstate the case. In the course of discussion about that, at the conference on 14th April 2014, it became apparent that the Oskas were not the custom owners but merely occupants of the relevant land with the consent of TN, who was or at least claimed to be the custom owner. Mr Kilu accepted this and acknowledged that if anyone had a good claim to challenge the VVLT decision it was TN alone and not the Oskas. Mr Kilu therefore withdrew the application to reinstate. Accordingly, Judicial Review case 9 of 2013 remains struck out.

12. Mr Kilu then indicated he was instructed by TN to apply (on the same grounds as the Oskas) for judicial review of the VVLT decision of 2009. He did so by filing the application for leave on 10 June 2014, the second limb of which is being addressed in this judgment.

The grounds for the application for leave and for the proposed judicial review claim if leave is granted

13. In support of the application for leave Mr Kilu has filed his own sworn statement of 22 May 2014 annexing a proposed judicial review claim, a memorandum dated 8 August 2014 containing submissions, a memorandum dated 8 October 2014 containing further submissions and finally his submissions of 3 August 2015 for the purposes of the hearing on 29 September.

14. The key complaint which TN makes about the VVLT decision is that he did not know about the hearing and therefore had no opportunity to take part. He says that he was not served with proper notice of the hearing. Because his family were declared back in 1990 to be the true custom land owners of Apendihen land, it was vitally important that they were served with proper notice. TN says that the second defendants ought to have been aware of the earlier declaration but may not have been because they were not involved in the original Island Court case.

15. Regardless, TN says there was an obligation to serve him and that did not happen. TN says that not only were he and his family not aware of the 2009 hearing but that they did not become aware of the declaration made on 21 May 2009 until about three years later, in April 2012. TN says that action was taken to challenge the VVLT decision when the Judicial Review Case 9 of 2013 was lodged in June 2013, about 14 months after becoming aware of the VVLT decision. However it was the Oskas, not him who took that action. TN did not himself challenge the VVLT decision until the application for leave with which this judgment is concerned was filed on 10 June 2014.

16. TN submits that it can be inferred that the defendants deliberately kept TN and his family in the dark about both the hearing and the result for the three years.

17. In terms of the requirements of Rule 17.8, TN submits he has an arguable case, is directly affected and there has been no undue delay in making the claim, observing that after learning of the VVLT declaration, it took some time to collect lawyer's fees and transport fees for travel to Vila to consult Counsel and instruct him to commence proceedings. He says that there is no other remedy which would resolve the matter fully and directly and that there is no prejudice to the defendants if leave is granted.

18. Overall, Mr Kilu submits on behalf of TN that the substantial justice of the case in terms of Rule 17.5 (2) requires that the VVLT declaration be quashed and that the matter be sent back to another, properly-composed, tribunal to adjudicate on the dispute between all interested parties.

19. The recurring theme of failure to serve TN and his family appears in the various documents filed by Mr Kilu. In addition, in the draft claim which would be filed were leave granted, there is a challenge to the process of the VVLT in that the persons who sat were not properly appointed to do so, in terms of sections 35, 36 and 37 of the CLT Act. It is also asserted that it ought not to have been the Vahas VLT which heard the dispute, rather it should have been the An-Duwai Village Land Tribunal, under section 8 of the CLT Act.

20. For the purposes of the application, which as Mr Kilu rightly emphasises is merely an application for leave rather the determination of the proposed judicial review, I have as requested by Mr Kilu taken into account statements filed in the earlier proceeding. On the claimant side they are TN's sworn statement of 27 March 2014 in JR 9 of 2014, Jackson Yan Hambath's sworn on 27 March 2014, Noel Oska's sworn on 27 March 2014, John Aiden's sworn on 31 March 2014 and Moise Sumsum's sworn on 31 March 2014. In addition Mr Kilu has prepared a recent statement of TN in response to those of Bridlay Lay and Moise Joel but this has not yet been sworn. Without objection from opposing counsel I have read and taken that statement into account as if it were sworn.

21. On the defence side, I have taken into account the sworn statements of Joel Toa sworn on 28 November 2012 and 14 October 2013 in Civil Case 9 of 2012, of Alicta Vutikwirinavanua on 13 February 2014,of Gorden Arnhambat on 10 October 2014 and two statements filed recently, those of Moise Joel sworn on 15 June 2015 and Bridlay Lay sworn on 3 July 2015.

22. Responses and written submissions opposing leave have been filed by both first and second defendants.

Discussion

23. As I have already noted, it is important to keep in mind that this is an application for leave to file a judicial review claim out of time rather than the determination of that claim. The jurisdiction which TN asks the Court to exercise is that contained in under Rule 17.5 which provides: " 17.5 (1) The claim must be made with 6 months of the enactment or the decision. (2) However, the Court may extend the time for making a claim if it is satisfied that substantial justice requires it".

24. Counsel agree, as do I, that in determining what substantial justice requires, the criteria in Rule 17.8 (3) are properly considered. Those are the criteria which a judge must consider at a first case conference in any judicial review case in order to determine whether the claim should proceed. If not satisfied of (all of) them the judge must decline to hear the case and must strike it out.

25. Rule 17.8 (3) provides: " the Judge will not hear the claim unless he or she is satisfied that: (a) the claimant has an arguable case; and (b) it is directly affected by the enactment or decision; (c) there has been no undue delay in making the claim; and (d) there is no other remedy that resolves the matter fully and directly."

26. I begin by noting that Rule 17.5 and Rule 17.8(3)(c) both refer to the passage of time; these claims are clearly meant to be pursued promptly and without undue delay. Judicial review claims not ordinary civil claims but involve special challenges to enactments or decisions which aggrieve the claimant. A claimant has six years to lodge an ordinary civil claim but a judicial review claim must be lodged within six months. If it is lodged after that there is a risk it will not be heard despite being meritorious.

27. The Rules reflect the need for certainty of decision-making and promptness in challenging important decisions.

28. The effect of Rule 17.8 (3) (c) is that even if the claim has been lodged within six months the Court will still not, indeed must not, hear it if there has been undue delay in making it. Accordingly, as Justice Tuohy noted in Kalsakau.v Wells [2006] VUSC 79, at paragraph (21): " It is plain that under R 17.8(3)(c), the Court has to look at the delay since the decision, not just since the R 17.5 time limit expired. That follows because R 17.8 applies to all claims both within and outside the time limit."

29. In this case the first challenge made by TN to the VVLT decision was when he filed the application for leave on 10 June 2014. That was more than five years after the decision sought to be challenged was made on 21 May 2009. On any view, and particularly having regard to six-month time limit in Rule 17.5 this is a very substantial delay; it is ten times the maximum period stipulated in Rule 17.5(1).

30. Of course, TN says, and I accept, that he was unaware of the May 2009 decision until April 2012. That gives him a strong basis for contending that justice requires that he should not have held against him at least the delay prior to that point. However, the scheme of the Rules is such that a meritorious applicant may be unable to obtain an extension of time even where he is unaware of the decision during the six-month period. The Rule does not start time running from the date the applicant becomes aware of the decision, but from the date of the decision.

31. Accordingly, the long period since the decision was made during which it has been unchallenged by TN cannot be overlooked in the overall context of this application. The clear inference from Rule 17.8 (3) (c) is that there will be cases where a claimant has an arguable case (and meets the other Rule 17.8(3) criteria), has filed a claim within 6 months yet is not permitted to pursue it because there has been undue delay within that six-month period. The concept of "substantial justice" is not limited in focus on what may be fair to the claimant; the interests of others who were privy to, or who may have relied on, the decision during the five years must also be considered. Having been successful before the VVLT, they have been entitled to rely on the absence of challenge for a lengthy period. There is no indication of particular prejudice flowing to the defendants or others but general prejudice is a factor in assessing substantial justice. As I observed earlier, the scheme of the Civil Procedure Rules relating to judicial review stipulates that challenges to important decisions must be made without undue delay. While the Court is always cautious about the depriving a challenger of a hearing, especially in a land case, it needs to be made on a timely manner. That was not done here.

32. Importantly for present purposes there is no adequate explanation (there is no sworn evidence at all on the point) for the delay in making this claim for the two years and two months between the TN becoming aware of the VVLT decision in April 2012 and lodging the application on 10 June 2014. Nothing at all was done for 14 months prior to the launching of judicial review claim 9 of 2013 by the Oskas (who did not, as they should have, seek leave).

33. TN does not say that he did nothing between June 2013 and June 2014 because the Oskas had filed their claim although, as a matter of fairness to him, I think it can be inferred this was his view. He describes the Oskas' claim as being a challenge by him in his statement of 27 March 2014. However, the reality is that he was aware of the adverse decision affecting him from April 2012 and did nothing himself to challenge it as he ought to have.

34. He, as representative of the family, should have been aware from 5 July 2004 that the Supreme Court had, with the express consent of his father Manaseh Natnaour (who was present at the hearing before Justice Treston with his son Harry Natnaour) moved the challenge to the Island Court decision in his family's favour to the land tribunal for determination. He or other members of his family should have been proactive in ensuring that they kept an eye on the process which followed. Their success before the Island Court was subject to appeal and because it was appealed their position as custom owners remained undetermined.

35. I repeat that there is no sworn statement from TN explaining why he did not launch a challenge to the VVLT decision in April 2012. In Avock v Republic of Vanuatu [2002] VUCA 44,the Court of Appeal observed, in a case where an application for leave was (only) four months out of time .."there is a heavy onus" on the person to explain why they have not commenced proceedings in the time which is provided. Obtaining finality is always an important ingredient in matters which can lead to judicial review". That can only apply with greater force where the delay is much greater and nothing is done when the claimant finds out the six months expired years earlier.

36. When considered overall, I am not satisfied that there has been either an adequate explanation for the latter part of the delay, or that there has been no undue delay in making the application for leave. There has overall been a substantial delay of more than five years. Even after becoming aware of the VVLT decision, a further delay of more than four times the Rule 17.5 period (2 years and 2 months) ensued with no step taken by TN. Even allowing for the Oskas' claim in judicial review case 9 of 2013, no challenge at all was made between April 2012 and June 2013, in itself a substantial delay of 14 months.

37. When that unexplained delay is considered against the backdrop of a three-year delay which had already accrued since the decision was made, it is in my view excessive and undue delay. Anyone in TN's position, learning of the decision of the VVLT in May 2009 and realising that it was already three years since the decision was made, had to act urgently to apply for leave out of time.

38. I consider the delay is, of itself, fatal to this application. If leave were granted to file the judicial review claim out of time under Rule 17.5(2), then at the first conference I would decline to hear the claim because under Rule 17.8(3)(c) I would not be satisfied there had been no undue delay in making the claim. There is no point in granting leave to file a claim that will not be permitted to proceed. Consideration of "substantial justice " is required under Rule 17.5(2) and may allow the late filing of a claim but Rule 17.8(3)(c) requires only consideration of whether the delay has been "undue".

39. In case I am wrong in this conclusion (that the delay alone is fatal), I turn to consider the arguability of the proposed claim.

40. As I have noted the primary and repeated complaint of TN is that he and his family were not served with notice of the hearing. For present purposes it would be inappropriate to make factual findings based on the sworn statements which have been filed where they are in conflict in the absence of cross-examination of the witnesses. However, despite that, I see no arguable basis for the complaint about lack of service. That is because of the law, not the facts. I accept for present purposes that TN and his family were not personally served with notice of the hearing of the VVLT. TN's problem however is that that is not required by section 7 of the CLT Act which provides:

Notice of disputes

(1) If a person or a group of persons:

• (a) is a party to a dispute about the ownership or boundaries of customary land; and
  
• (b) wants to have the dispute dealt with under this Act;
  

the person or group must give notice of the dispute in accordance with subsections (2) and (3).

(2) The notice must be given

• (a) if the land is situated wholly within the boundaries of a village – to the principal chief of that village; or
  
• (b) if the land is situated within the boundaries of more than one village – to the principal chief of each of those villages.
  

(3) The notice must:

• (a) be given orally or in writing in Bislama, French, English or another language of the person or group giving the notice; and
  
• (b) specify clearly the land which is in dispute; and
  
• (c) contain the names of the parties to the dispute.
  

41. As can been seen the notice by the claimant party, the second defendants, simply had to be given to the principal chief of the village. No service on parties likely to be interested was required.

42. Under section 8 the obligation of the chief was then to establish a single village land tribunal to determine the dispute within 21 days after receiving the notice.

43. Once that was done, section 25 of the Act applied. This provides:

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 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) specify 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) specify the name and address of the secretary of the land tribunal; and

(e) if applicable – specify the grounds of the appeal

44. Here there is detailed evidence from Mr Vutikwirinavanua and Mr Arnhambat as to what happened in this case. On the face of it there does not appear to be any arguable challenge to their evidence that the process was in compliance with the CLT Act. They explain that a public notice to surrounding villages was issued and a copy is annexed to both of their sworn statements. In addition there is the evidence of Bridlay Lay as to his putting up of the public notice. He says this was pasted up about 10 metres away from the family Natnaour's residence and he believes they would have seen it every day when coming and going home in the village.

45. There are comments by Mr Lay and by Mr Joel to the effect that the claimants were well aware of the hearing but decided not to attend because they did not believe the tribunal had the power to decide on land disputes. That is strongly disputed by TN and I am unable to resolve the issue on the information before me. There is obvious practical force in TN's comment that the only reason he and his family did not attend the hearing was simply because they were not aware of it.

46. For present purposes however the question is whether TN has an arguable case that the VVLT process by way of publication of notice of the hearing was defective. I see no arguable basis for this. TN is complaining of the absence of personal service but there is no requirement for that. There is no reason to believe on the information available to me that TN could successfully challenge the process that was adopted so far as publication of the hearing is concerned. Because he was not aware of the hearing or the advertising, he is in a difficult position in contending that what others say happened is wrong.

47. As I have noted, the "ignorance of the hearing" ground is the primary, but not the only, point raised by TN. There are two other grounds, the improper appointment of the people who sat on the Tribunal and that the case should have been heard by another tribunal. These appear to me to be very much secondary challenges and no particulars have been provided in sworn evidence or in submissions.

48. There is also the recent suggestion in TN's unsworn statement of possible bias in connection with the conduct of paramount chief Moise Joel at the hearing. Again, this does not seem to me strongly arguable. It is not something which has been raised prior to the recent unsworn statement and TN was, of course, not at the hearing to observe what Mr Joel did. Mr Joel says that because he is related to the Toa family he needed to step aside from sitting on the Tribunal which he was otherwise going to chair. There is nothing inherently wrong in his subsequently speaking to the Tribunal in support of the claim provided he was not acting in a decision-making role. If a claimant happens to have a paramount chief supporting his claim, he should not be deprived of that support just because he might have chaired the tribunal had there been no conflict of interests.

Conclusion

49. Overall I am not satisfied, in terms of Rule 17.5,that substantial justice requires that the six-month period which expired on 21 November 2009 be extended. The delay since then is very substantial and even though I accept that TN was not aware of the decision until April 2012 he did not act without undue delay once he did become aware of it. His family was aware from July 2004 that there would be a CLT Act hearing before a village tribunal of the challenge to his family's success for the Island Court in 1990.

50. The delay is of such magnitude that substantial justice requires that the application for leave be dismissed on that ground alone. Alternatively, in case I am wrong about that, the arguability of the proposed claim is not such as to justify extension in all the circumstances.

52. The application for leave to file the judicial review claim is dismissed.

53. The defendants are entitled to standard costs which may be taxed if they cannot be agreed.

54. I thank counsel for their submissions.

BY THE COURT