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Seksek v Customary Land Management Office [2023] VUSC 181; Civil Case 2400 of 2023 (22 September 2023)

BETWEEN:

RIETH VOR SEKSEK
Claimant

AND:

CUSTOMARY LAND MANAGEMENT OFFICE
First Defendant

AND:

JAMES NGISA OF FAMILY NGISA
Second Defendant

Date: 22^nd September 2023
By: Justice W.K. Hastings
Counsel: Mr J Vohor for the Claimant

DECISION

____________________________________________________________________________

1. This is an urgent application for a restraining order filed on 12 September 2023 and brought to me today, 20 September 2023.
   
2. The applicant seeks to restrain the first and second defendants from holding nakamal meetings at Kole Village that discuss Vathaluth custom land at East Santo until an Island Court review of a decision of the Ser Avtor Area Land Tribunal is resolved. That review is listed as Review No. 20/3068 and was brought under s 45 of the Custom Land Management Act. The applicant claims the decision of the Ser Avtor Area Land Tribunal erroneously decided the Vathaluth land boundaries in a manner that overlaps Loretiakarkar custom land.
   
3. The application was heard in chambers. Mr Vohor appeared and took me through the history of the dispute. He explained on a sketch map where the boundaries overlap. He said the Island Court hearing was not listed in June, but he anticipates the hearing will be listed for November. No one appeared on behalf of either defendant.
   
4. There are a number of problems with the application:
   
   1. The sworn statement of proof of service states that Sam Tavue was served on 13 September 2023 with copies of the Supreme Court claim, urgent application for a restraining order, sworn statement of Daniel Hinge in support of the urgent application for a restraining order, sworn statement of urgency, and an undertaking as to damages, all filed at Santo on 12 September 2023. Rule 5.8 (1) states that a document is served personally on an individual by giving a copy of it to the individual. Sam Tavue is not a party to this proceeding. James Ngisa is named as the second defendant, and he has not been personally served in accordance wit r.5.8.
      
   2. The sworn statement of urgency states that the deponent, Mr Vohor, wrote to the “Head of Chief Nakamal Mr Kaven Kuvu” in an undated letter around the end of August 2023 and to the Custom Land Officer (Santo) Ms Waneymay on 6 September 2023, asking each to stop or adjourn “any meeting about Vataluth land and wait for the island court appeal review.” Although neither has replied in writing, Mr Vohor said his client has been telephoned to say that the nakamal will require a court order to stop discussing matters relating to the land boundary that is the subject of the review proceeding in the Island Court. There is, however, nothing in the sworn statement of urgency that states when the next nakamal meeting will be held and how any discussion or decision of such a meeting could affect Loretiakarkar custom land when it is the Island Court that has carriage of the matter. There is not enough information in the sworn statement of urgency for the Court to decide if indeed the application is urgent.
      
   100. The urgent application for a restraining order and the Supreme Court claim seek the same remedy, namely “a restraining order against the first and second defendants from holding Nakamal meeting for the determination of the Custom ownership of Vathaluh pending the Appeal of the Claimant to be heard first.” A restraining order is an interlocutory order in Part 7 of the Civil Procedure Rules that does not finally determine the rights, duties and obligations of the parties to a proceeding. It is not the claim itself. By framing the claim in terms of the restraining order application, the applicant has essentially made the application as framed into a final determination if it is granted or declined. The proceeding to which Part 7 refers is a proceeding in the Supreme Court. The proceeding to which this application refers is the proceeding in the Island Court. The Island Court, by virtue of s 6 of the Island Courts Act, has “full jurisdiction ... over causes and matters in which all the parties are resident or being within the territorial jurisdiction of the Court.” Section 8 states that “the civil jurisdiction of an Island Court extends to the hearing, trial and determination of all civil matters..” The application needs to be reframed as an interlocutory application to the Island Court in the Island Court proceeding.
        
   4. I am also concerned that the application is overbroad for two reasons. The first is, if granted, the order may catch people who were not party to the application. The second is that the nakamal can discuss anything it likes with the knowledge that the Island Court reviewing the custom land boundary decision of the Ser Avtor Area Land Tribunal has the final say.
      
5. For these reasons, I must decline the application for a restraining order. As the Supreme Court claim is framed, declining the application for a restraining order means that the Supreme Court claim also fails and is struck out. The way forward for the claimant is to bring this application in the Island Court that has carriage of the review proceeding no. 20/3068.
   

Dated at Luganville this 22^nd day of September 2023

BY THE COURT

.................................................

Justice W.K. Hastings