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In re land known as Marobe, Family Sope Imere v Family Nikara [2003] VUSC 88; Land Appeal Case 001 of 1994 (14 October 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Land Appellate Jurisdiction)

Land Case No. 1 of 1994

IN THE MATTER OF: A Land appeal from the Efate Island Court. A land situated at and around Bauerfield airport called “MAROBE” on the island of Efate

BETWEEN:

FAMILY SOPE IMERE
of Mele Village, Efate
First Appellant/Appellant

AND:

CHIEF NUNU NAPERIK MALA
of Rangorango, South Efate,
Second Appellant/First Respondent

AND:

IFIRA COMMUNITY
of Ifira Tenuku, Efate
Third Appellant/Sixth Respondent

AND:

IFIRA TENUKU COMMUNITY HOLDING LIMITED
Fourth Appellant/Fourth Respondent

AND:

FAMILY KALSAKAU,
Ifira, Efate, Vanuatu
Fifth Appellant/Third Respondent

AND:

NAFLAK TEUFI
tribe of Ifira Tenuku, Efate
Sixth Appellant/Second Respondent

AND:

FAMILY NIKARA
of Mele Village, Efate
Respondent/Fifth Respondent

Coram: Justice Treston
Chief Kalkot Mormor
Chief Dellwing Manapanga
Chief Steven Maserei

Mrs. Nari for Family Sope Imere
No appearance by or on behalf of Chief Manarewo II
Chief Mala in person
Mr. Kalsakau and Mr. Malcolm for Ifira Community

Ifira Tenuku Community Holding Ltd

Family Kalsakau
Mr. Mataskelekele for Naflak Teufi
Pastor Nikara for family Nikara

RULING ON PRELIMINARY ISSUES

After two abortive hearings in this matter on 25 August 2003 and 19 September 2003, when the Court was unfortunately unable to obtain a coram of the presiding judge and the three assessors, the application was heard at 9am on 13 October 2003.

In accordance with Orders made by Justice Coventry on 10 July 2003, the purpose of the hearing was as follows:-

(a) To decide whether or not Chief Manarewo II could be a separate party from Chief Nunu Mala;

(b) To decide whether or not amended grounds could be accepted;

(c) To decide whether or not any further evidence could be heard at the appeal;

(d) To give directions to prepare for the full hearing of the appeal.

The first application to be dealt with on 13 October 2003 was the application to decide whether or not Chief Manarewo II could be a separate party. There was no appearance of Chief Manarewo II nor of his counsel Mr. Faerua accordingly the application was dismissed and the Court held that Chief Manarewo II not be joined as a separate appellant in the appeal. There was on file an affidavit of service of the notice of the hearing indicating that counsel had been
served on 1 October 2003.

The next preliminary issue to be dealt with was to decide whether or not any further evidence could be heard at the appeal first on behalf of the Ifira Community. It was pointed out to Mr. Kalsakau and Mr. Malcolm that in fact no separate application had been filed on behalf of any of their clients and in particular on behalf of the Ifira Community to determine whether or not that party could apply to call any further evidence but it was argued that their application had been filed as part of the application on behalf of Chief Manarewo II in paragraph 2 of the application dated 7 August 2003. Somewhat reluctantly the Court accepted that the Ifira Community could be seen to be an applicant in that regard.

Mr. Malcolm on behalf of the Appellant, the Ifira Community, argued that, while was accepted that under Order 18 Rule 2 of the Island Courts (Civil Procedure) Rules 1984 parties were only entitled to call 5 witnesses each to support their claim, additional material could be put forward by those witnesses at an appeal, on the basis of the provisions of section 22 (3) of the Island Courts Act [CAP. 167] which provides:-

"The Court hearing the appeal shall consider the records (if any) relevant to the decision and receive such evidence (if any) and make such inquiries (if any) as it thinks fit".

Mr. Malcolm argued that the Court should adopt an inquisitorial role under that provision by making such inquiries (if any) as it thought fit and should approach the question of the admittance of further evidence on the standard which applies to an appeal to the Court of Appeal, particularly Rule 27 (2) of the Court of Appeal Rules which is as follows:-

"The Court of Appeal shall have full discretionary power to receive further evidence on questions of fact, either by orally examination in Court by affidavit or by deposition taken before an examiner or commissioner.

Provided that in a case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds".

Mr. Malcolm argued that the Supreme Court in hearing an appeal in relation to disputes as to ownership of land should adopt the same principle and admit further evidence if there were special grounds made out.

Mr. Malcolm went on to argue that Rule 16.30 of the Civil Procedure Rules No. 49 of 2002 which related to appeals to Supreme Court from a Magistrates Court should be followed in that an appeal book and written submissions from the parties should be prepared and filed prior to the hearing of the appeal and that this procedure should apply to this appeal from the Island Court to the Supreme Court.

Mr. Kalsakau made submissions as to evidential matters and referred to the judgment of Justice Coventry in Family Laurent Leingkone v Louis Worwor Land Appeal Case No. 1 of 1996 and accepted that it is for the Court to decide whether there should be further evidence but pointed out that in that case the Court had allowed further evidence.

Mr. Kalsakau also submitted that the judge and the assessors in this appeal should visit the land as the Island Court was required to do under Order 18 Rule 9 which provides:-

"In every case where a claim in respect of land, the Court shall visit the land before reaching a decision in the cause".

Mr. Kalsakau conceded that such an Order had not been sought in the application but it was a matter of discretion for the judge.

Mr. Kalsakau also referred to the civil case of Chief Waya Tenene v Kalmarie CC203/02 but conceded that was a matter which was sub judice as the decision was under appeal to the Court of Appeal.

In principle Mr. Kalsakau submitted that the Court should allow further evidence to be called.

Mrs. Nari on behalf of family Sope Imere had no objection to further evidence being admitted, Chief Mala objected to any further evidence being admitted, Mr. Mataskelekele did not object to further evidence being admitted and Pastor Nikara for Family Nikara objected to any further evidence being admitted.

In relation to that application I hold that Ifira Community may not adduce any additional evidence at the hearing of this appeal. That Appellant had the opportunity to adduce its evidence to the Island Court at the original hearing. There is no provision under Rule 16.34 of the Civil Procedure Rules, which provides for appeals from Island Courts to the Supreme Courts, for an appeal book and associated documents to be prepared and I do not consider that it is appropriate to make orders in that regard. In any event as counsel has conceded the proper time to make such an application would have been at the first conference.

The procedure for appeal to the Supreme Court is set out clearly in Rule 16.34 and it seems to me that the Ifira Community is just involving itself in an ex post facto fishing expedition to see how it can bolster up it's own claim in relation to the disputed land. No submission to justify the Court in finding that there were special grounds for the admission of further evidence were made in Court but the Applicants relied upon the details set out in the application of 7 August 2003 which set out as follows:-

"(a) The original memorandum of appeal that was filed by the Family of Chief Nareo Marik Atlangi as represented by Chief Nunu Maperik Mala was filed on 17^th June 1996 by Bob Kalfabun as he was authorised to do such given his knowledge of the Marobe Land case. Attached to that memorandum of appeal were particular documentary evidence such as maps, family tree diagrams, deeds of sale documents, letters and survey maps. On 1^st July 2003, a further memorandum of appeal was filed by Chief Manarewo II, which contained three separate affidavits from three individuals, two of whom are now deceased.

(b) The Applicants contend that the witness statements that were delivered to the Island Court during the substantive hearing of the Marobe Land Claim were all based on their respective knowledge of the events and happenings as relayed to them by work of mouth from those who survived then. Given the nature of the evidence based on knowledge, it is fair that the Court allow further evidence to be called by the Applicants.

(c) The Applicants submit that the Court must allow them to call further evidence on the basis that the evidence being called is "traditional evidence" or evidence bases on customary knowledge and necessary to determine the issue of ownership as to land. the traditional evidence refers to statements made according to custom and the notions of traditional land ownership systems. The case authorities of Adjebi Kojo II v Bonsie [1957] 1 WLR 1223; State v Giddings[1981] PNGLR 423 are on point in illustrating judicial acceptance of "traditional evidence" and the treatment of such evidence.

(d) The Applicants submit to the Court that the further evidence that will be called is necessary as given the lapse of time between the date of judgment on 25^th February 1994 and the date of hearing of the appeal. That lapse of time has in fact allowed parties to properly identify information that would be relevant, admissible and of weight to ensure a proper determination of the appeal.

(e) The Applicants assert in this application that the evidence that they wish to call is not a rehearing of the evidence already admitted in these proceedings. However, the further evidence that they are seeking to produce is of sufficient materiality and cogency as to be likely to have an important influence on the result of the appeal and also was not available at the lower hearing in the Island Court. The Applicants submit that if the Court uses its discretion to allow the further evidence to be submitted it would not create a new case. This principle is supported in the case of New Zealand Dairy Co-operative Dairy Co. Ltd v Commerce Commission [1991] 1 NZLR 601 and reaffirmed in Power NZ Ltd v Mercury Energy Ltd [1996] 1 NZLR 106

(f) The further evidence submitted will not prejudice any of the other parties as it will only go to furnish the grounds of appeal of the Applicants and therefore produce cogent and reliable evidence for the Court to use in determining the issues on appeal".

Copies of the decisions referred to in those grounds were not made available to the Court and as I say no references was made to those matters in oral submissions.

I am of the view that the Applicants have failed to satisfy the Court that there are special grounds, even if that were appropriate test, for further evidence to be adduced. In the application, it was submitted that as a matter of fairness and proper adjudication of the issues further evidence should be allowed, but I note that there were five witnesses called on behalf of the Applicant at the Island Court hearing and that it had the opportunity to adduce that evidence at that time and it is not contended that the matters to be adduced were not known at that time. It seems to me that the Applicant wishes to have a rehearing of the evidence which is in my view is inappropriate in this context. Very full oral evidence was given in the Island Court. All parties including this one had adequate time and opportunity to adduce such evidence as they wished. A completely adequate record was kept of the evidence and of the many documentary exhibits. In short the Court does not think fit to receive additional evidence in the context of this appeal.

The application by Ifira Community to call and submit further evidence is declined.

The next matter for determination was the application of and on behalf of Naflak Teufi to amend the grounds of appeal and to call more evidence at the hearing. There was an application filed on 11 August 2003 on the basis that an issue of concern is that a "Naflak" or Totem tribe does posses the right in custom to own land and that there should be further evidence on this issue because many people and some of the parties believed that a "Naflak" cannot own land. It was submitted that the new evidence to be introduced was not made available to the Efate Island Court. In a further document dated 04 July 2003 the Applicant requested the Court to allow the right to produce further documentary evidence or other new evidence to verify claims as custom owner of the disputed land and that that right should be allowed in the interest (sic) of justice.

Mr. Mataskelekele submitted that no oral evidence would be required but the documentary evidence was from historical books, and that section 22 (3) was wide enough to give the Court discretion to have such new evidence admitted through a new witness in addition to the five witnesses that had already given evidence on behalf of the Naflak Teufi. It was conceded that the evidence of the historical books was available at the time of the Island Court hearing but that the witness was simply not called and this was a special case where fresh evidence ought to be allowed.

Ms. Nari for the family Sope Imere submitted that if the additional witness has the knowledge of the history of the books she had no objection to the evidence being admitted. Chief Mala in person objected to any other witness and the additional evidence. Mr. Kalsakau and Mr. Malcolm for the Ifira Community, Ifira Tenuku Community Holdings and family Kalsakau wished to make no response and had no objection to the addition evidence and Pastor Nikara for family Nikara objected to any further evidence.

As with the previous application I am of the view that the additional evidence ought not to be admitted and I rule accordingly. Counsel for this Applicant did not produce any detail of the evidence proposed to be admitted either by the name of the prospective witness with his qualifications and experience, nor any particular detail of historical documents which he sought to have admitted. On the basis of the information before the Court, the Court is not satisfied that there is a special case for such evidence to be admitted or that it is in the interests of justice that they should be so admitted. Counsel quite properly conceded that the material had been available at the time of the Island Court hearing and I am of the view that there would be prejudicial effect to other Appellants and Respondents should the evidence be admitted at this stage. I am not of the view that it is necessary for it to be admitted for the proper determination of the appeal which, after all, is an appeal and not a re-hearing. In particular the Applicant has already called the maximum number of witnesses that it was entitled to at the time of the Island Court hearing. I decline to exercise my discretion to allow the admission of new evidence.

As part of the Order made on 10 July 2003 for the preliminary hearing one of the matters was to decide whether or not amended grounds of appeal could be accepted. No application in this regard was made by any party on 13 October 2003 other than that on behalf of the Naflak Teufi. I allow that further ground namely-

"The rules set out in pages 38 and 39 of the judgment are general and do not take into account other aspects of customary land ownership rules of Efate, for example:

1. Although land ownership follows a patrilineal system, in certain cases land is inherited through the female lineage.
   
2. The rules do not clearly distinguish between the perpetual rights of the custom owner or owners of the land, and usage rights of users who are not the custom owner or owners of the land".
   

Other than that I direct that no amended grounds of appeal may now be accepted and that the submissions already filed for the earlier appeal hearing that was never completed will be the grounds upon which the appeal will proceed.

In arriving at this decision I have consulted with the three assessors named above as far as matter of custom are concerned.

Dated AT PORT VILA, this 14^th day of October 2003

BY THE COURT

P. I. TRESTON
Judge