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

Civil Appeal Case No. 24 of 2006.

BETWEEN:	JOHN NOEL, SEREK TOTO, THELE TOTO, JUDY TOTO, TOM BAKERTOTO, EDWARD TOTO	
	First Appellants	
		
AND:	CHAMPAGNE BEACH WORKING COMMITTEE	
	Second Appellant	
		
AND:	OBED TOTO, BILWAR TOTO, ROWEL TOTO, PETER TOTO & KEN TOTO	
	Respondents	

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. Boar for Appellants
Mr. Saling Stephens for Respondents

Date of Hearing:	28 September 2006
Date of Decision:	06 October 2006

REASONS FOR JUDGMENT

At the end of the hearing of this appeal, we advised that the appeal would be allowed with reasons to follow. We now give those reasons.

The appeal was against a judgment of a judge of the Supreme Court given on 23 June 2006 in which he struck out the appellants’ claims in their entirety on the basis that they were frivolous, vexatious and without legal foundation.

The parties are all descendants of the late Crero Toto. In a judgment of the Supreme Court dated 19 April 1995 in Case 18 of 1994, in which John Noel was applicant and Obed Toto was respondent (Noel v Toto [1995] VUSC 3), Kent J made the following declarations in relation to Champagne Beach:

"1.	I declare that Obed Toto is custom owner of the land found in Land Case L6/85 to be his, as representative of the descendants of Crero Toto deceased.

2.	The Applicant John Noel and those who he represents are by reason of the decision in Land Appeal Case L6/85, custom owners of the land.

3.	The children of the late Crero Toto are entitled to share equally in the "unearned income" from the land.

4.	The applicant is entitled to an account as to the profits from the land since the date of the decision in Land Appeal Case L6/85"

In the last paragraph of his judgment, Kent J said:

"As to the management of the land, I think that the parties should quickly make their peace with one another. It may be that that will involve some custom arrangement between them. I think that all parties should act reasonably with respect to this matter, so that any problems as to future management can be avoided. The parties have indicated that they have some proposals for the future and I trust that they can reach agreement. By them all working together in a spirit of co-operation, they will all benefit and derive full satisfaction from their custom land."

Unhappily, the claim in the present proceeding is testament to the fact that the parties have been quite unable to work together in the spirit of cooperation urged by Kent J.

The claim alleges that the respondents, in particular Obed Toto, have failed to distribute any income generated from tourism related activities on Champagne Beach to the appellants; that Obed has obstructed their efforts to develop tourist-related activities at the Beach; that by a locked gate he has excluded them from access to the Beach; that he has allowed animals to wander the Beach to the discomfort of tourists; and that he has threatened to assault the appellants.

The remedies sought include orders that the respondents account for all monies received from Champagne Beach from 1985 to date; that all revenue from the beach be collected by the second appellants and paid into an account; that the respondents be restrained from preventing the appellants’ tourism development activities; that Obed remove his gate on the access road, that he remove his animals and that he be restrained from assaulting and threatening the appellants.

It was first argued before the primary judge that the claim was time-barred. While not upholding this submission, his Lordship held that the proceeding was in substance an attempt to appeal the judgment of Kent J 11 years after the event and for that reason was an abuse of process. He also held that John Noel, being a grandchild and not a child of Crero Toto, had no right under Kent J’s judgment to share income and that there was clear evidence that the others named as first appellants are receiving their shares of income. On this basis he held that their claims were frivolous and vexatious.

His Lordship also found that because there was evidence that John Noel, although not a child of Crero Toto, had received some income from the Beach, he had "come to Court with unclean hands and therefore should not be entitled to the reliefs sought".

Although, as this Court pointed out in Kalses v Le Manganese de Vate Ltd [2005] VUCA 2, Civil Appeal Case 34 pf 2003 (3 May 2005), there is no specific provision in the Civil Procedure Rules to strike out a proceeding on the grounds that there is no reasonable cause of action or that it is frivolous, vexatious or an abuse of process, it was not disputed that such a power exists. Jurisdiction can be found within the broad terms of ss.28 (1) (b) and 65 (1) of the Judicial Services and Courts Act No. 54 of 2000 and the Civil Procedure Rules themselves provide in Rules 1.2 and 1.7 a basis for exercising the jurisdiction. In practice the existence of such an inherent jurisdiction has been assumed by the Supreme Court: see e.g. the judgments of Treston J in Naflak Teufi v Kalsakau [2004] VUSC 94; Civil Case 102 of 2002 (6 May 2004) and Kalomtak Wiwi Family v Minister of Lands [2004] VUSC 47, Civil Case 14 of 2004 (2 September 2004).

However it has always been recognised that the jurisdiction should be exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material; the claimant’s case must be so clearly untenable that it cannot possibly succeed: Electricity Corp Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641.

We do not think that this is such a case. We do not see that by seeking to have Obed Toto account for the income received from the Beach, the appellants (who include not only his grandchild John Noel but several of his children as well) are attempting to relitigate the decision of Kent J. His judgment recognised that all the descendants of Crero Toto are custom owners of the Beach. He also found "that Obed Toto is custom owner as representative of the family of the late Crero Toto and this being so, he does not by virtue of being head of the family, have the right to retain the money for his own benefit entirely". Although his declaration was that it was the children of Crero who were entitled to share equally in the "unearned income" he made it clear that this was in relation to the circumstances then existing and that circumstances would change and different people would become entitled to distribution of income. He specifically stated: 

"It is not necessary to consider the situation where a member of that level of descent had died leaving survivors. That is not the case here. If it were, I think that generally, the share to which any such person would have been entitled, should go to the surviving children of any such person. There may of course, be other considerations which would affect the situation in any particular case".

In fact that situation does now arise. Julie Toto, the eldest of Crero’s children and John Noel’s mother, has since died.

"Unearned income" will continue to accrue from the Beach and those rightfully entitled to share in it will have a continuing right to a proper accounting. The Limitation Act simply does not arise if there is ignoring of the thrust of the order and individual rights.

It is also not appropriate to dismiss the appellants’ claims, supported by sworn statements from John Noel, Serec Toto and Tom Baker Toto, that they have not received their rightful share of that income with the statement that "evidence is clear that they are receiving their share of the income"

Disputed issues of fact should be decided at trial not on an application to strike out which is normally dealt with on the basis that the facts pleaded in the claim can be proven.

There are also specific claims relating to the management of the land, access, animals and potential tourist related developments. Those issues were deliberately not decided by Kent J. Nor are they even alluded to in the judgment under appeal. All those claims however have also been dismissed. They are real issues which the appellants are entitled to have addressed.

Accordingly, we are of the view that the judgment under appeal cannot stand. The appeal is allowed. The proceeding is reinstated and is remitted to the Supreme Court for resolution. In our view, it would be appropriate for the matter to be allocated to a different judge.

Finally, we once more commend to the parties the sentiments expressed by Kent J about future co-operation with regard to the Beach. Obed Toto needs to recognise that he does not have sole ownership and control of the Beach but as eldest son he is the representative of the custom owners who include all Crero Toto’s descendants, male or female. They all need to accord to him the respect that that position entitles him to. Otherwise all parties may find that the goose stops laying its golden eggs and cruise ships will find new and different destinations.

Dated at PORT VILA on 06 October 2006

BY THE COURT

Hon. Chief Justice V. Lunabek	Hon. J. Bruce Robertson J.	
		
Hon. John. W. Von Doussa J.	Hon. Daniel Fatiaki J.	
		
Hon. Hamlison Bulu J.	Hon. Christopher N. Tuohy.