Bice v The Republic of Vanuatu
Reasons for striking out a Constitutional Application at First Conference Hearing on 14 April 2026.
A. Introduction
1. On April 14 2026, I conducted a first conference hearing in this Constitutional Application No.877 of 2026 and struck it out.
2. The reasons are set out below: -
B. Constitutional Application
3. A Constitutional Application (“The Application”) was filed on 1st April 2026.
4. A sworn statement was filed separately on 10 April 2026.
5. The Application is said to be made pursuant to Articles 6 (1) and 53 (1) of the Constitution.
6. The Application seeks orders that:
a) The Supreme Court decision in Vanaf v Wetelwur [2016] of VUCA 52, Civil Appeal Case 3546 of 2016 (18 November 2016) has infringed the constitutional rights of the Applicants under Article 73 and Article 74.
b) Consequently, such decision is annulled.
c) Consequently, the Certificate of recorded interest following the above-mentioned Supreme Court decision has infringed the Constitutional rights of the applicants under Article 73 and 74 of the Constitution.
d) Consequently, this Honorable Court must issue relevant orders to cancel the Certificate of Tavlavere boundary.
e) Consequently, the matter must be referred back to the Nakamal.
C. Grounds of the Constitutional Application
7. The Application was said to be advanced on the following grounds: -
a) The Applicants are true customs owners of the 3000 hectares of Wo boundary custom land.
b) Tavlavere land is a plot inside Wo land boundary which is never a custom boundary on its own.
c) The Applicants’ condominium title 652 is specifically attached to Tavlavere plot as shown inside Wo boundary map.
d) When the Vanaf v Wetelwur [2016] of VUCA 52, Civil Appeal Case 3546 of 2016 (18 November 2016) was on foot, the Applicants were not party to the proceedings because they were never aware of the case.
e) The Applicants great grandfather Cecil Wolau was also responsible in the sale of the 1000 hectares part of Wo boundary to Father Joseph Dubis and for the sale of the 2000 hectares to Fujiwara a Japanese business man.
f) The Third Respondent made confession before passing that he stole the Applicants land from Baton the Applicant’s father.
g) A Nakamal meeting held on 26 June 2023 further confirms that the boundary belongs to the Applicants.
h) Prior to the above meeting on 10 December 2021 a custom ceremony was held where Paramount Chief John Star acknowledge the Applicants and his family as true owner of Wo Boundary.
i) The fact that the case of Vanaf v Wetelwur [2016] VUCA 52, Civil Appeal Case 3456 of 2016 (18 November 2016) proceeding and declared Tavlavere land in favour of the Third Respondent has breached the Applicants rights under Article 73 and 74 because Tavlavere is just a plot inside Wo Land boundary belonging to the Applicant.
j) The Certificate of recorded interest has also infringed the Applicants rights under Article 73 and 74 under the Constitution of Vanuatu.
k) Sworn statement of Lenard Bice in support of the Constitutional Petition Application.
D. First Conference Hearing
8. A first conference hearing was listed on 14 April 2026 at 2:30 pm in the afternoon at Dumbea Court Room.
9. I noted that Mr. Yawha filed a response to the Application. I did not consider it because the parties to proceedings started by a Constitutional Application are: - (a) The Applicant; and (b) the Republic of Vanuatu, as the Respondent (Rule 2.4) (1) (a) and (b) of the Constitutional Procedure Rules 2003.
10. I noted that the decision of the Court said to infringe the rights of the Applicants in the Application is not the decision of the Supreme Court as the Applicants referred to but it was a decision of the Court of Appeal in Vanaf -v- Wetelwur [2016] VUCA 52, Civil Appeal case 3456 of 2016 (18 November 2016).
11. A copy of that decision of the Court of Appeal was not attached to the sworn statement filed in support of the Applicant. I obtained a copy from the Pacific Island Legal Information Institute (Paclii).
12. On 14 April 2026, I enquired into the Application in order to find out whether there is a cause of action that is founded in the Constitution. If there is a cause of action founded in the Constitution, I will direct that the Respondent should file and serve their response and make other consequential directions. If there is none, I should strike it out.
13. The Application says that the decision of the Court of Appeal in Vanaf -v- Wetelwur [2016] VUCA 52, Civil Appeal case 346 of 2016 (18 November 2016) has infringed the Constitutional rights of the Applicants under Articles 73 and 74 of the Constitution.
14. I enquire and ask Mrs. Tabisa Harrison as the way those rights or provisions have been infringed; and the facts on which the application is based. She did not answer nor show me how those rights have been infringed and on what facts. This Constitutional application does not show how those rights have been infringed and on what facts. Rule 2.3 (1) (a) (b) (c) (d) (e) (f) and (2) (a) (b) of the Constitutional Procedure Rule set out what a Constitutional application must contain in this way: -
“2.3 What a Constitutional Application must contain
(1) A written Constitutional Application must set out:
(a) the rights that have been infringed, are being infringed or provisions for which redress is sought; and
(b) the Article of the Constitution that confers those rights or sets out those
provisions; and
(c) the person or body that infringed those rights or provisions; and
(d) the way those rights or provisions have been infringed; and
(e) the facts on which the application is based; and
(f) the remedies applied for by the applicant to enforce those rights or seek redress.
(2) The Application must have with it:
(a) a sworn statement by the applicant in support of the Application, setting out details of the evidence the applicant relies on; and
(b) any other sworn statements that support the Application.”
15. This Constitutional Application was not filed in accordance with the Constitutional Procedure Rules 2003. The Constitutional application seemed to be incomplete as the application and the sworn statement in support are not filed together at the same time as provided by Rule 2.5. (1) which provides:
“2.5 Filing
(1) A Constitutional Application is filed by lodging 4 copies of the Application and sworn statement with the Court”.
16. It appears on its face that this Constitutional Application is incomplete and as such invalid. I deal with it on the assumption that it is valid.
17. The decision of the Supreme Court in Land Appeal case 06 of 2012 was decided on 20th September 2016. An appeal to the Court of Appeal in Vanaf -v- Wetelwur [2016] VUCA 52, Civil Appeal case No. 3546 of 2016 (18 November 2016) was decided on 18 November 2016 which stated that the Appellant (Family Vanaf) has no right to appeal. The decision of the Supreme Court of 20 September 2016 over the customary ownership of Tavlavere land on Gaua Island declaring ownership of that land to Family Wetelwur, is not disturbed. The Constitutional Application was filed on the 1st April 2026. It is now about 10 years later.
18. The sworn statement of Lenard Bice filed on 10 April 2026 in support of the Application says, among other matters, that the decision of the Court of Appeal in the case of Vanaf -v- Wetelwur [2016] VUCA 52, Civil Appeal case 3456 of 2016 (18 November 2016) when on foot, the Applicants were not aware of the case which declared the Tavlavere land in favour of the Third Respondent.
19. I peruse the judgement of the Court of Appeal in Vanaf -v- Wetelwur [2016] VUCA 52. Relevantly, the Court of Appeal observed: -
“2. There has been a history of litigation between all the parties in this appeal in respect of Tavlavere Land on Gaua Island. The Banks and Torres Island Court (“BTIC”) heard a disputed claim for ownership of the land and gave judgment in November 2005. The decision was appealed to the Supreme Court and by a consent order dated 20th March 2012 the BTIC decision was set aside and the matter was listed for hearing again. Directions were also given by the Supreme Court in an effort to ensure a speedy resolution of the dispute. The case was promptly re-heard and BTIC handed down its new judgment on 30th May 2012. The Island Court restated the decision it made after the first hearing and again decided the First Respondent in this appeal (“Family Wetelwur”) was custom owner of Tavlavere land. The 30th May 2012 judgment was appealed by Family Vanaf and Family Vavak. The appeal came before the Supreme Court in Land Appeal case 06 of 2012. The appeal was heard by Justice Aru and two assessors (Chiefs Abraham Fred and Abel Patteson) on Gaua over two days on 19th and 20th September 2016. The decision was read out on 20th September and type written reasons published a short while later. The Supreme Court dismissed the appeals by Family Vanaf and Family Vavak and they now seek to appeal the decision of the Supreme Court.”
20. It is difficult to understand the position of the Applicants that they were not aware that Tavlavere custom land was the subject of disputes between people and Families of Gaua island before the Banks and Torres Island Court, composed of chiefs of Gaua island, which sat to hear this dispute at Gaua island twice, the Supreme Court also sat with two local chiefs at Gaua for 2 days and the appeal before the Court of Appeal (sitting in Port Vila).
21. From the reading of the sworn statement of Lenard Bice filed in support of the Application, the Applicants may only be aware that they might have an interest in Tavlavere custom land in August 2022 when Aswin Wetelwur, the daughter of John Ashwin Wetelwur, informed them of what her father told her on 11 March 2021 before he passed away that “Tavlavere land” did not belong to John Ashwin Wetelwur and his family but to the old man Baton who is related to the Applicants.
22. The Applicant Lenard Bice cannot attached to his sworn statement a so-called “last declaration” of John Ashwin Wetelwur before his death on 11 March 2021 and expect that the Court will rely on it. The so-called “last declaration” was not made to Lenard Bice but to Ashwin Esther. It is hearsay and the Court cannot rely on it (see section 149 of the Evidence Act No.18 of 2025).
23. The sworn statement of the Applicants Lenard Bice does not show any extraordinary circumstance that caused the Applicants not to be aware of the customary land disputes over Tavlavere custom land and that they did not defend their rights and which led them to only show up in April 2026 when they filed their Constitutional Application 10 years later after the decision of the Court of Appeal complained of was made.
24. On my further enquiry to Mrs. Tabisa Harrison, she admitted that the Applicants filed the Constitutional application because of the Certificate of Recorded Interest given to the Family Wetelwur over the ownership of Tavlavere custom land on Gaua island, that triggered them to file the Constitutional application.
25. Ten (10) years delay is too long a challenge to the finality of the matter in dispute. An application under this circumstance becomes an abuse of the process of the Court. The finality of the judgements of the Courts must be respected.
26. The decision of the Court of Appeal in Vanaf -v- Wetelwur [2016] VUCA 52, is clear. In any event, the Court of Appeal was acting in accordance with its ordinary functions under the Constitution, and the Judicial Services and Courts Act [CAP 270]. If the effect of its decision in Vanaf -v- Wetelwur [2016] was that the judgement of the Supreme Court of 20 September 2016 declaring Family Wetelwur custom owner of Tavlavere custom land, is the final judgement, such a decision could not constitute an infringement of the Constitutional rights of the Applicants. The effect of that decision of the Court of Appeal in Vanaf -v- Wetelwur [2016] VUSCA 52, would be one effected in accordance with the law [see Francois -v- Ozols [1998]] VUCA 5; Civil Appeal case 155 of 1996 (25 June 1998); Kalnpel -v- The Governement of the Republic of Vanuatu [2023] VUCA 10; (17 February 2023).
27. This Constitutional Application is inappropriate. It has a frivolous and vexations quality. It is an abuse of the process of the Court. Again, in this case like in the Constitutional Application No 26/718, I struck out also on 14 April 2026 on the similar point, it is worth that I repeat the observation of D’Imecourt CJ in President of the Republic of Vanuatu -v- the Attorney General [1992] Vanuatu Law reports 575 at 591 cited by Your Humble Servant in the President referral [1998] VUSC 18: -
“[G]reat caution will be exercised by the Supreme Court of Vanuatu to ensure that the safeguards guaranteed under the Constitution are not abused and that its value is not diminished by applications to the Supreme Court that are frivolous, vexatious or abuse of the process of the Court”. (See Kalnpel -v- The Government of the Republic of Vanuatu [2023] VUCA 10).
28. This Constitutional Application is strike out.
29. I make no order as to costs.
30. Those are the reasons for the oral decision I made on 14 April 2026.
Dated at Port Vila, this 22 April, 2026.
BY THE COURT
________________________
Hon. Chief Justice
Vincent Lunabek