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

CIVIL APPEAL NO. 29 OF 2010

BETWEEN:

TOM SIRO
Appellant

AND:

SAMUEL ANDIKAR
First Respondent

JEAN BAPTIST ANDIKAR
Second Respondent

JEAN PIERRE VARALE
Third Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John Mansfield
Hon. Justice Daniel Fatiaki
Hon. Justice Raynor Asher 
Hon. Justice Robert Spear

Counsel: Saling Stephens for the Appellant
 Bill Bani for the First and Second Respondents 

Hearing: 29 March 2011
Decision: 8 April 2011

REASONS FOR JUDGMENT

[1] This appeal is against the decision of the Supreme Court dated 12 October 2010 which dismissed Tom Siro's claim in an action for trespass.

Background

[2] At the heart of this case is a cave known as the Millennium Cave. It straddles the Vatar River on the Island of Santo. Since 2003, Samuel Andikar (with the assistance of other members of the Andikar family) has been taking tourists to the Millennium Cave and earning a healthy profit from a charge of VT 2000 per head. Tom Siro claims that this tourism venture has only been able to operate as the tourists gain access to the cave by travelling over his land. He seeks substantial damages for the on-going trespass. 

[3] This is not the first time that this Court has had to consider the dispute between Tom Siro and the Andikars in relation to the Millennium Cave – Andikar v Siro [2008] VUCA 1; Civil Appeal Case 02 0f 2008 (30 April 2008). 

[4] It is necessary to have regard to some of the history to this case.

[5] The original claim by Tom Siro in this proceeding bearing date 15 November 2006 was against: 

a.	Jean Baptiste Andikar as First Defendant;

b.	Simon Andimele (another Andikar) as Second Defendant; and

c.	Andvok Varale as Third Defendant.

[6] That original claim alleged that, since August 2003, the Defendants had trespassed on to Tom Siro's land as they took tourists up to and into the Millennium Cave. That claim was defended and heard by the Supreme Court in September 2007 with judgment given on 14 February 2008. The Supreme Court found for Tom Siro and awarded him substantial damages. In particular, the Supreme Court found that the Millennium Cave was on Tom Siro's land and that the Andikars had accordingly trespassed onto that land by taking the tourists in to the cave.

[7] The three defendants then successfully appealed that decision. This Court determined that the Millennium Cave could not be considered Tom Siro's exclusive property or even that he could claim exclusive rights to it. 

The assumption is that, if access to the cave is only through Tom Siro's custom land, then he must also have ownership of the Millennium Cave. If a river forms the boundary between two pieces of land, then unless there is a particular document which says otherwise, the boundary of each piece of land will either be at the respective edges of the river or at the centre of the river. There is a presumption at common law that each adjoining landowner owns the land under the water to its mid point: see Blount v Layard [1891] 2 Ch 68ln. The decision of the Island Court of Santo/Malo of 30 August 1993 did not decide that the upper part of the Funaspef land extended across all the Vatar River. It simply did not consider that because it was deciding who the custom owners of the Funaspef land were. It did not address whether the boundary between the Funaspef land and the Tankar land was at each edge of the Vatar River or its middle.

As the Millennium Cave straddles the river, apparently with footing on both Funaspef land and Tankar land, it was erroneous to reason from the restricted access to it that it was owned by Tom Siro.

The question of access is a different one. If access to a site which is partly on his land is difficult to access from his land by the owner, that does not mean the person is not still the owner of that part of the site which is on his land.

 [8] By the time of the first appeal, it had also become clear that the tourism business was indeed being operated by Samuel Andikar; another member of the same Andikar family.

 [9] John Baptiste Andikar is the declared custom owner of that land which forms the lower part of the Funaspef land towards Luganville. Tom Siro is the declared custom owner of the upper part of the Funaspef land. This distinction has some significance in respect of the road used to take the tourists to and from the Millennium Cave. The road runs initially across the lower part of the Funaspef land (Andikar land) and then across the upper part of the Funaspef land (Tom Siro's land) passing by the mouth of the Millennium Cave. The road then makes its way further inland. It has been used for generations as the access roadway by the Andikars, by Tom Siro, by their respective ancestors, and by those living further inland.

The Second Trial

[10] The case returned to the Supreme Court after the first appeal. Tom Siro sought to reshape his case. He filed an amended claim dated 23 October 2008 and then a second amended claim dated 11 May 2009. Both amended claims identified the Defendants to be:

a. Samuel Andikar as First Defendant

b. Jean Baptiste Andikar as Second Defendant

c. Jean Pierre Varale as Third Defendant.

[11] This seemingly resulted in (1) Simon Andimele being replaced by Samuel Andikar, and (2), Andvok Varale being replaced by Jean Pierre Varale. However, it does not appear that the addition or removal of these parties was pursuant to court order as required by Rule 3.2 Civil Procedure Rules. The only attention that this issue received was an application to the Supreme Court by Tom Siro in March 2008 to join Samuel Andikar as a Defendant. That application was refused as the first Supreme Court decision was, at that time, under appeal.

[12] Neither Mr Stephens nor Mr Bani could assist as to how this proceeding had been reshaped in this way in the absence of orders of the Supreme Court. We can only conclude that the need to obtain orders from the Supreme Court permitting the changes to the parties was overlooked as Tom Siro sought to reshape and advance his claim. Be that as it may, we consider that this causes difficulty only in respect of Jean Pierre Varale.

[13] Mr Bani commenced acting for the three "original" Defendants on 17 March 2008 which was just after the first Supreme Court decision (14 February 2008) and before the first appeal (29 April 2008). Mr Bani represented all three "original" Defendants as the Appellants in the first appeal. He has, however, only acted for Samuel Andikar and Jean Baptiste Andikar since the case returned to the Supreme Court after the first appeal. That is evidenced, in particular, by the defence filed to the amended claim which specifies that it is the defence of the "First and Second Defendants". Mr Bani confirmed to us that he has been acting, at all times, with full instructions from Samuel Andikar and Jean Baptiste Andikar.

[14] Accordingly, while procedurally irregular, we see no harm arising from the claim having been redirected at Samuel Andikar; particularly, given the conclusions that we have reached with this appeal.

Jean Pierre Varale

[15] The same cannot be said about the inclusion of Jean Pierre Varale. The amended claim alleges that, since the first appeal, Jean Pierre Varale has built a house on Tom Siro's land, that he is still living in that house on Tom Siro's land and that he is also carrying out subsistence farming on that land. Tom Siro seeks an order that Jean Pierre Varale dismantles and removes the house and quits the land.

[16] While the second Supreme Court decision of 12 October 2010 acknowledged this claim against Jean Pierre Varale, it did not go further than that. Specifically, it did not decide that aspect of the claim. Mr Stephens appeared unsure how we should deal with this. He stated in his written submissions:

Basically, the refusal by the (Supreme Court) to deal with a particular relief sought by a claimant is akin to refusing a claimant the right to a fair hearing and a breach of natural justice.

[17] While there are options available to us to deal with an aspect of a claim overlooked by the trial judge, it is unnecessary for further consideration to be given to them. Jean Pierre Varale is not a party to this proceeding and he never has been. There is no evidence that he has been served with any documents in relation to the proceeding and, in particular, the operative second amended claim. There is nothing before us to indicate that he is even aware of this case. It is difficult to understand how these difficulties were not identified at the time of the second Supreme Court trial in February and May 2010 particularly as Jean Pierre Varale did not appear either personally or by counsel. The trial judge may have wrongly assumed that Mr Bani was acting for all three defendants and that, indeed, is how it appears the appearances of counsel are noted in the decision. However, the defence to the amended claim is clearly stated to be only by the First and Second Defendants.

[18] In respect of Jean Pierre Varale, this is not an irregularity that can be overlooked as we have felt able to do with Samuel Andikar. It is a fundamental flaw in the proceeding in respect of Jean Pierre Varale. Essentially, there is nothing to appeal as Jean Pierre Varale is not a party to the proceeding and he never has been. 

Orders as to Parties
[19] To tidy the proceeding up, we order:

a. That Samuel Andikar be added as the First Defendant; 

b. That Simon Andimele be removed as the Second Defendant;

c. That Jean Baptiste Andikar be described as the Second Defendant;

d. That Andvok Varale be removed as the Third Defendant; and

e. That Jean Pierre Varale no longer be described or considered as a party to this proceeding.

[20] The second Supreme Court decision, dismissing the claim, determined that Tom Siro had failed to prove that, "he was the sole owner of the Millennium Cave and that he had exclusive right to possession of it and the surrounding lands" (para 9(a)). The decision considers the roadway used to access the cave from Luganville. We will return to this roadway point later in this decision.

The Points on Appeal
[21] Mr Stephens raised five separate points of appeal which we summarise in this way:

a. First ground: that the trial judge failed to recognise the overwhelming and unchallenged evidence of loss presented by Tom Siro;

b. Second ground: that the trial judge wrongly held that the cave was owned by Tom Siro and the Andikars;

c. Third and Fourth grounds – abandoned during the appeal hearing;

d. Fifth ground – relates to Jean Pierre Varale and which we have already addressed.

Consideration
[22] It is convenient to deal first with the issue of liability in trespass (the second appeal point) before considering the first point which is necessarily dependent on a finding of liability.

[23] Mr Stephens confirmed that the reshaped claim against the Andikars did not relate to entry into the Millennium Cave. This had to be so given the earlier decision of this Court that the cave was not exclusively owned by Tom Siro. As it straddles the Vatar River, ownership rights must be shared between Tom Siro as the custom owner of one side of the river at that point and whoever is eventually declared the custom owner of the land on the other side of the river; which is Tankar land. That Tankar land is claimed by both Tom Siro and John Baptiste Andikar.

[24] Mr Stephens confirmed that the claim in trespass was confined to the Andikars and their tourist parties crossing his land by travelling along the road on their way to and from the Millennium Cave. No doubt, Tom Siro gained some direction for his reshaped claim by the concluding comments in the first appeal decision. That is, that the parties should look to the "potential benefits of some co-operation between them." Also, the suggestion that, "it was quite common for people in circumstances like the present to give permission for a tour operator to take tourists across his land to a particular site on the basis of being paid a modest portion of the fee charged to each tourist." 

[25] Of course, those comments were an attempt to be helpful and to persuade the parties as neighbours to work together for mutual benefit rather than to maintain this dispute. It certainly did not follow a detailed consideration by this Court of the entitlement of either party to charge a fee to those travelling over this particular track.

[26] The evidence at the second trial was that this roadway had been created many years ago for the benefit of those travelling inland in this area from Luganville. It was not created by any of the parties. The trial judge dealt with it in this way (para 9(a)):

Both parties gave evidence about a roadway leading from the bottom of Funaspef land owned by (John Baptiste Andikar) up into the upper part of the land owned by (Tom Siro) and further up inland to other parcels of land. (Tom Siro) also accepted that the road way has been used by the ancestors of the disputing parties in the past and is still being used today. All the parties accepted that none of them had built or cut up this road way. The road way is, as it were, a public road for all users to access their lands further inland to gain access to the coast or the sea.

[27] Mr Stephens sought to obtain strength for his argument that those crossing Tom Siro's land along this roadway were trespassers from the following extract from the first appeal decision:

… they have used a path across the lower part of the Funaspef land of which Jean Baptiste Andikar is the custom owner and then across the upper part of the land of which Tom SIro is the custom owner. The three Andikar parties now accept that, without the permission of Tom Siro, they would have been trespassing on his land by using that path if in fact they had done that.

[28] However, whether or not they were "trespassers" as such is a legal question and it is not necessarily to be answered simply by an acknowledgment from lay individuals. Furthermore, whether they were trespassing by crossing the land via the road way was not the issue before this Court in the first trial or the first appeal. It was, however, raised fairly and squarely in the second trial and answered by the trial judge by his determination that the roadway was, indeed, a public road; that is, a roadway able to be used by the public.

[29] The trial judge was clearly influenced by the concession from Tom Siro as to the history to the roadway (as already explained) and that it was a custom road (custom rod) which simply confirmed other evidence to that same effect. While we do not have the benefit of the trial judge's notes, Mr Bani referred us to his written submissions to the Supreme Court at the second trial where he quoted the answer given by Tom Siro in cross-examination – "Rod ya, I no Jean Baptiste we I mekem. Hem I rod blong ol bubu bifo finis". That is, that Jean Baptiste did not make the road and that it was the road of their ancestors.

[30] Mr Stephens was unable to point to any other evidence that even suggested a contrary view. He simply relied on the declaration of the Island Court of Santo/Malo of 30 August 1993 that Tom Siro was the custom owner of the upper Funaspef land that was crossed by a section of that roadway.

[31] Tom Siro has not persuaded us that the trial judge was wrong to find, in effect, that the fact that Tom Siro was the custom owner of the land across which the road passed did not provide him with the exclusive right to determine who might use the road such that a toll could be taken. The trial judge is likely to have had in mind s. 17 of the Land Reform Act [CAP 123]:

17. Public roads

(1) Public roads in existence or under construction on the Day of Independence shall vest on that Day in the Government on behalf of the people.

(2) No person other than the Minister may close a public road or take a toll from persons using a public road.

[32] A "public road" is defined in the schedule to the Interpretation Act [CAP132]:

.."public road" includes any road, highway, market place, square, street, bridge or other way which is used by the public whether by lawful right or by usage; 
(Emphasis added)

[33] Given the concession by Tom Siro as to the history to the road and its usage, it appears clear that the trial judge was, with respect, on sound ground indeed when he referred to the roadway as "a public road". That being so, Tom Siro is legally prohibited from either closing the road or taking, "a toll" from those crossing his land along this road. Indeed, it appears that the road is likely to have vested in the Government at Independence. All this goes directly against Tom Siro's claim that the section of the roadway that crossed his land belongs exclusively to him and that he is entitled to profit from those who used it.

Conclusion
[34] It therefore follows that we consider that the trial judge was correct to dismiss the claim that there was on-going trespass by the Andikars such as might sound in damages. It consequently becomes unnecessary for us to consider the first point of appeal.

[35] The appeal is dismissed. The First and Second Respondents are entitled to standard costs and disbursements to be fixed or argued. 

DATED at Port Vila, this 8th day of April 2011

BY THE COURT

Hon. Vincent Lunabek J

Hon. John Mansfield J

Hon. Daniel Fatiaki J

Hon Raynor Asher J

Hon. Robert Spear J