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Bangalulu v Malasikoto [2008] VUSC 40; Land Appeal Case 59 of 2006 (13 June 2008)

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

Land Appeal Case No. 59 of 2006

BETWEEN:

FAMILY MASOEPONGI TAMARIKI BANGALULU
Appellants

AND:

FAMILY MALASIKOTO
First Respondent

AND:

FAMILY KALOKANUE
Second Respondent

AND:

FAMILY ELMU LABUA KALTAMATE
Third Respondent

Mr. Michel Ova – in person
Mr. Felix Laumae for the First Respondent
Mr. Nakman Sambo Kalokanue – in person
Mr. Victor Malas (Not present but written submissions in the Court file)

JUDGMENT

This is an application of the Applicants to file an appeal out of time. The application is filed on 25 April 2006. It seeks among any other matters, that leave be granted for the Applicants to appeal the judgment of the Efate Island Court (EIC) dated 22 July 2004 over the ownership of a land called Pangona land.

For various reasons as set out in the judgment of this Court in Land Appeal Case No. 58 of 2004, dated 7 March 2008, the Applicant’s application of 25 April 2006 is dealt with on 10 June 2008.

The Applicant’s file two (2) sworn statements of Mr. Michael Ova in support of it, respectively on 25 April 2006 and 19 September 2007.

The First Respondent filed a cross-application on 30 November 2006 with sworn statements of Silas Vatoko filed in support on 4 December 2006 and 5 May 2008.

The Second and Third Respondents responded to the Application by way of submissions. They do not file and serve any sworn statement in support of their response.

The grounds of the Application are set out in the Application of 25 April 2006 itself and the sworn statements of Michael Ova. The Applicants provide various grounds. They can be summarised as follows:-

1. The Applicants say they were declared custom owner of the land known as Tukutuku Ranch (currently lease title No. 12/0814/003) by the Mele Council of Chief on 2 September 2002. The Declaration of the Mele Council of Chiefs was written on 9 September 2002.
   
2. Tukutuku Ranch is situated in a land within the land known as Pangona Land.
   
3. Pangona Land was a disputed land. A claim over the ownership of that land was made before the EIC in 1997 and was registered by the EIC as Land Case No. 1 of 1997.
   
4. The Applicants say that they did not file a claim over Pangona Land in Land Case No. 1 of 1997 because they were informed that the ownership claim over Pangona Land was in respect to land other than land comprising Tukutuku Ranch land.
   
5. The Applicants say that the EIC in Land Case No. 1 of 1997 did not take into consideration of the Chief’s declaration that the Applicants are the custom owners of the land. The Applicants say also in the alternative that the EIC was not aware of the Chief’s declaration of the Applicant’s as the custom owners of Tukutuku land.
   
6. On 23 December 2003, the Applicants say they were registered as lessors of the lands.
   
7. On 26 October 2004, the Minister of Land Register rectified the land lease title No. 12/0814/003 by substituting the Applicant’s name with the First Respondent’s name.
   

The chronology of the events, to the extent of their relevancy to the present case, is set out below:-

• In June 1997: Family Malasikoto had lodged a claim as Original Claimant in Land Case No. 1 of 1997. Counter-claims were lodged by Family Lakeleotaua Kalokanue Nakmau and Family Elmu Labua Kaltamate over the same land. The land which was the subject of the dispute is Pangona land;
  
• On 19 July 2004, the Efate Island Court (EIC) heard Pangona Land claim;
  
• On 22 July 2004, the EIC delivered its judgment declaring Family Malasikoto as rightful custom owner of Pangona Land, with the effect that Families Nakmau and Labua retain rights subject to the over-riding authority of Family Malasikoto;
  
• After the EIC Judgment of 22 July 2004, Family Labua filed a land Appeal against that judgment on Pangona land;
  
• On 11 August 2005, Family Labua withdrew their Land Appeal against the EIC judgment of 22 July 2004 over Pangona land;
  
• On 25 April 2006, Family Bangalulu filed an application for leave to appeal out of time and stay of the EIC judgment of 22 July 2004 over Pangona land;
  
• In February 2007, the Supreme Court suspended the effect of the EIC judgment of 22 July 2004 over Pangona land together with the EIC judgment of 2004 over Ponatoka land in Land Appeal Case No. 58 of 2004. The Land Appeal Case No. 58 of 2004 is still pending before the Supreme Court for hearing.
  

The Law

Section 22 (1) and (5) of the Island Courts Act [CAP. 167] (as amended) are the relevant provisions. They provide as follows:-

"22. (1) Any person aggrieved by an order or decision of an Island Court may within 30 days from the date of such order or decision appeal from it to the competent Magistrate’s Court.

(2) ...........

(3) ...........

(4) ..........

(5) Notwithstanding the 30 days specified in subsection (1) the Supreme Court or the Magistrate’s Court, as the case may be, may on application by an appellant grant an extension of such period provided the application therefore is made within 60 days from the date of the order or decision appealed against."

The Applicants were not a party to the Land Case No. 1 of 1997 before EIC. They were not party to the Judgment of the EIC delivered on 22 July 2004.

The question then to be asked is: Can the Applicants appeal the Judgment of EIC although, they are not a party to the case before the EIC dated 22 July 2004?

The answer to that question must be in the affirmative for the following reasons:-

Section 22 (1) does not limit the right of appeal of a decision or order of an Island Court to the parties before the Island Court. "Any aggrieved person" by an order or decision of an Island Court can appeal against it.

In this case, the Respondents concede that the Applicants are entitled to appeal against the decision of the EIC of 22 July 2004 provided that the application met the requirements of section 22 (5) of the Island Courts Act.

The requirement under section 22 (5) is that the Court may on application by appellant grant an extension of the 30 days period to appeal provided the application is made within 60 days from the date of the order or decision appealed against.

In this case, the Applicants through their representative, Mr. Michael Ova, informs the Court that he was aware of the judgment of the Court dated 22 July 2004 back in 2004 and also in 2005. However, he could not do anything as he was a member of the board of Mele Trustees and he would not want to compromise the memorandum of the association of the company. However, other members of his family did nothing either by then until they filed the application on 25 April 2006. From the date of the judgment to the filing of the application it is more than one year and three months after 60 days from the date of the decision of the EIC of 22 July 2004.

Authorities laid down by the Court of Appeal and Supreme Court judgments are for the Courts to be of strict compliance with the terms of section 22 (5) of the Island Courts Act [CAP. 167] in relation to an appeal and in relation to an application seeking an extension of time for an appeal. Below are the authorities in support of the strict interpretation of section 22 (5) of the Island Courts Act [CAP. 167]:-

The Court of Appeal in Naru Kalbeau Kalsakau v. Jong Kook Hong [2004] VUCA2, Civil Appeal Case 30 of 2003 (8 June 2004) at page 5 made it very clear and states:-

"We are of the clear view that strict compliance with the terms of subsections (1) and (5) in relation to an appeal and in relation to an application seeking an extension of time for an appeal is essential. In short the person aggrieved by an order or decision of the Island Court must appeal within 30 days from the date of such order or decision o decision to the Supreme Court in relation to a matter concerning a dispute as to ownership of land. We consider that the "date of such order or decision" commencing the time frame within which the 30 days for an appeal must be made, commences from the date on which the reasons for the decision duly signed and sealed are made available to the parties. Likewise the further 30 days period as specified in section 22 (5) of the Act runs from that date. Further any application for grant of an extension of the 30 day [sic] period must be made within 60 days. Outside the 60 days no relief can be sought or granted [emphasis].

Subsequently, the Court of Appeal in Loparu v. Sope [2005] VUCA 4; Civil Appeal Case No. 26 of 2004 (3 May 2005) relying on the Kalsakau case above states:-

"Section 22 (above) sets out a process for appeal subsequent to an Island Court decision. The wording of section 22 does not restrict an appeal to parties in the Island Court hearing but can include "any person aggrieved by an order or decision". Such an appeal would be to the Supreme Court as the matter concerned a dispute as to ownership of land. The Appellants in this case did not follow the statutory process by appealing within 30 days period within 60 days referred to in the enactment had they been out of time."

Most recently the Court of Appeal in Vanua Rombu v. Family Rasu [2006] VUCA 22; CA C 07/06 (6 October 2006 at page 4 referring to Kalsakau and Loparu cases states:-

"Language of section 22 does not permit ANY EXCEPTION to the strict time limits which it imposes, and the application of section 22 in the present case must defeat the late claim of Vanuatu Rombu, even if he is to be treated as a "person aggrieved" by the Island Court decision."

The decision of the Court of Appeal is applied by this Court in a number of cases and the decision of this Court in the case of Family Mete v. Family Wolu (2006) VUSC 68, Land Appeal Case No. 53 of 2004 (17 August 2006) is a recent application in which the Court held:-

"... The application to grant an extension of time must be made within 60 days from the date of the order or decision appealed against. The Tafea Island Court issued its decision/judgment on 27 October 2003. The application seeking the grant of an extension of the period to file an appeal is not made within 60 days from the date of the decision appealed against. The application was filed on 10 May 2005. It was 1 year and 5 months outside the 60 days required under section 22 (5) of the Island Courts Act [CAP. 167].

The decision of the Court of the Appeal in Raupepe case cannot help/assist the Applicant, Intended Appellant in the present case ...

Section 22 of the Island Courts Act [CAP. 167] must be interpreted and applied strictly in line with Court of Appeal judgment in Naru Kalbeau v. Director of Lands which is applied and followed by the Supreme Court judgment since the Appeal Judgment."

In this case, the application for leave to appeal out of time must be refused. Order is made to this effect. No order as to costs.

DATED at Port Vila, this 13th day of June, 2008.

BY THE COURT

Vincent LUNABEK
Chief Justice.