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Maliu v Molitamata Village Land Tribunal [2009] VUSC 52; Civil Case 28 of 2008 (23 February 2009)

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

Civil Case No. 28 of 2008

BETWEEN:

AKISINA MALIU
Claimant

AND:

MOLITAMATA VILLAGE LAND TRIBUNAL
Defendant

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mrs Marisan P. Vire for the Claimant/Applicant
Mr George F. Boar for the Defendants

Date of Hearing: 20th February 2009

DECISION

1. On 28th October 2008 the Applicant filed an Application seeking extension of time to file Application For Judicial Review pursuant to Rule 17.5 of the Civil Procedure Rules No. 49 of 2002 together with the sworn statement in support of even date.
   
2. The decision sought to be reviewed was the decision of the Defendant Lands Tribunal dated 24th May 2004 declaring Juda George, Woia Tin and Mateas as the custom-owners of Visio Land.
   
3. The Application was fixed for Hearing by Order dated 19th November 2008 for 20th February 2009.
   
4. Today Mrs Vire is seeking an order for stay of proceedings for a period of 3 months to allow parties to sort out their boundaries in another dispute before a land tribunal.
   
5. There is no proper application seeking such stay and there are no sworn statements in support thereof.
   
6. Mr Boar objects to the stay application. He argues the Interested Party Juda George, his client has had judgment for more than 4 years from May 2004. He argues the Claimant was never a party to the dispute in 2004 although at all material times he was available even at the hearing of the dispute. Never at any time did he seek to become a party. He submits the Claimant cannot now after 4 years when his client has had judgment, seek to become a party to the Case. He submits the Court should reject the application.
   
7. Rule 17.5(1) is clear. Claims for Judicial Review must be made within 6 months of the decision. Subrule (2) gives the Court a discretion to extend time if the Court is satisfied that substantial justice requires it.
   
8. I have seen and read the sworn statements of the Claimant filed in support of his application to extend time. There is no reasonable explanation by him as to why he did not file his claim to become a party at the time. Statements made on behalf of the defendants show he was at all material times present when the Lands Tribunal was sitting. He saw notices and have them torn up.
   
9. Further, it is more than 4 years down the line after the Lands Tribunal had made its decision in May 2004. Now he is seeking a further 3 months to seek and secure information which he hopes would assist his Case. That is what is known as "fishing expedition".
   
10. The balance of convenience favours the Defendant and the Interested Party to the extent that the Court must refuse the Claimant’s application for stay. Accordingly, the application is dismissed.
    
11. Unfortunately, the consequential effect of this decision is that the Application For Extension of Time must also be dismissed.
    
12. The Claimant has obviously put the Defendant to costs. The Defendants are entitled to their costs of and incidental to this proceeding to be agreed or be determined by the Court.
    

DATED at Luganville this 20th day of February 2009.

PUBLISHED: 23rd February 2009.

BY THE COURT

OLIVER A. SAKSAK
Judge