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Felix Family v Kalsilik Family [2004] VUSC 20; Land Appeal Case 046 of 1998 (20 December 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

LAND APPEAL CASE No. 46 of 1998

BETWEEN:

KALTER FELIX AND FAMILY
Appellants

AND:

KALSILIK FAMILY
Respondents

Mr. Willie Daniel for the Intended Party in LAC 46/98 – Chief Tarisaliu
Mr. Bill Bani for the Intended Party in LAC 46/98
Ms Christina Thyna for the Respondent in LAC 46/98 and Claimant in CC 178/04
Mr. Boar for the Intended Party – Family Boblang in LAC 46/98

JUDGMENT

There are two applications before this Court. The first application is filed on 18 November 2004 by Mr. Willie Daniel for the First Intended Party – Chief Tarisaliu, in Land Appeal Case No. 46 of 1998. The application seeks for the following Orders:

1. An order that he be allowed to be joined as an interested party to the current proceedings before the Honourable Court in Land Appeal Case No.___ of 20__.
   
2. An order that he be allowed to address the honorable Court about certain matters pertinent to the determination of the current proceedings in Land Appeal Case No.___ of 200__.
   
3. An order that the decision of the Island Court in Land Case No. 4 of 1995 dated 13 March 1998 be quashed and set aside.
   
4. An order that this matter be referred back to the Efate Island Court to be retried.
   

5. Any orders as deem fit by the Court.

Mr. Willie Daniel filed a sworn statement on behalf of his clients. It shows that his client had filed a land claim in 1988 on a land which is now subject of this Appeal before the Supreme Court. That case was filed in the Efate Island Court in civil case No. 4 of 1988, between: Chief Tarisaliu and Boblang family. Court fees of VT20,000 were paid. Civil Case No. 04 of 1988 is over the disputed Land Title No. 1940 which now on appeal before the Supreme Court. The Island Court had never heard and determined the claim. Civil Case No. 04 of 1988 is still pending before the Efate Island Court.

The second application was filed on 11 November 2004 by Mr. George Boar on behalf of the Second Intended Appellant to this appeal, Boblang family. The Application seeks for orders that Boblang family be joined as Appellant in the Land Appeal Case No. 46 of 1998 and leave to file a Notice of Appeal out of time.

Sworn Statements were filed by each party before the Court and the deponents were cross-examined.

The evidence is also that Chief Tarisaliu knew about the hearing of Land Case No. 04 of 1995 over the same Title 1940 he claimed in CC 04 of 1988 before the Efate Island Court. However, he said nothing about his claim but gave evidence in favour of the current Appellant. When questioned about his knowledge, he said he had a claim before the Island Court on the same land, and it has yet to be determined.

The appellant also filed a sworn statement to show that Boblang family knew about the Land Case No. 04 of 1995 on the same Land Title 1940 which is in dispute.

On consideration the Intended Parties, Chief Tarisaliu and Boblang Family are not parties to the Efate Island dispute in Land Case No. 04 of 1995. They cannot be joined as a party at the appeal level.

The concern for the Court is about the Civil Claim No. 04 of 1988 between Chief Tarisaliu (Claimant) and Boblang Family (Defendant), a land case filed in the Efate Island Court on same land Title 1940. It is still to be heard and determined. If the Supreme Court proceeds to hear this appeal, the parties in CC 04 of 1988 will be prejudiced and their right will be affected.

The allegations/complained are made against the administration and registration processes of the Efate Land Court. This is a kind of matter which should have been dealt with at the conference stages so that proper direction be made accordingly. As this was not done, common sense and justice requires that the Land Case No. 04 of 1995 judgment be set aside and Land Case No. 04 of 1995 together with Civil Case No. 04 of 1988 be jointly heard by the Efate Island Court differently composed.

ORDER

1. Order 1 sought by the Intended Appellant Chief Tarisaliu and order 1 sought by Family Boblang in their respective applications are refused.
   
2. Order 2 of orders sought by Chief Tarisaliu is refused as it is already dealt with.
   
3. The judgment of Efate Island Court in Land Case No.04 of 1995 is set aside. The Land Appeal Case No. 04 of 1995 is reverted back to the Efate Island Court.
   
4. The Efate Island Court Clerk must combine/join Civil Case No. 04 of 1988 between Chief Tarisaliu and Boblang Family and Land Case No. 04 of 1995 between Kalter Felix and Family and Kalsilik Family for hearing.
   
5. The Efate Island Court Clerk to list the matters before the Efate Island Court differently composed for land conferences and hearing as soon as practicable.
   
6. All parties in Civil Case No. 04 of 1988 and Land Case No. 04 of 1995 are informed and notified of the joiner and hearing of both cases by the Efate Island Court. There is no need for further Public Notice.
   
7. Each party to bear their own costs.
   

DATED at Port-Vila this 20^th day of December 2004

BY THE COURT

Vincent LUNABEK
Chief Justice