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Rongo v Mele [2010] VUSC 55; Civil Case 36 of 2009 (6 May 2010)

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

Civil Case No. 36 of 2009

BETWEEN:

FAMILY RONGO
Represented by Dorsen Rongo
Claimants

AND:

LUI MELE, ANDREW KUE, NERMAN CHEROM, MELE REX
Comprising Sanma Land Tribunal
First Defendants

AND:

FAMILY ROPOMOLI
Second Defendants

AND:

FAMILY VARI SUPE
Third Defendants

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr George Boar for the Claimants/Applicants
Mr Vira Mele – Spokesman for First Defendants
Mr Joe Halili – Spokesman for Second Defendants
Mr Jack Andfala – Spokesman for Third Defendants

RULING

1. The Claimants as applicants make application pursuant to Rule 17.5 of the Civil Procedure Rules No. 49 of 2002 (the Rules). They seek orders for leave to extend time to file and judicial review claim, and for costs.
   
2. The applicants intend to file a judicial review claim seeking review of the Santo Island Land Tribunal decision made on 26th and 27th November 2007 and to have the decision set aside on the basis that it was wrong in law.
   
3. The application for leave was filed on 8th December 2009 together with a supporting sworn statement by Dorsen Rongo filed on 14th January 2010 and also from Chief Luvus Tamata filed on 19th February 2010.
   
4. Mr Jack Andfalo filed a sworn statement in response on 4th May 2010 together with some written submissions.
   
5. Mr George Boar filed written submissions at 0850 a.m today 6th May 2010.
   
6. Mr Boar and all the three spokesmen for the Defendants were given opportunity to make oral submissions in addition to their written submissions.
   
7. The oral decision handed down after hearing submissions made in light of those evidence and submissions was to the effect that the application for leave to extend time was dismissed with no order as to costs.
   
8. The relevant provision to consider is Rule 17.5 of the Rules which state-
   

"Time for filing claim.

17.5 (1) The Claim must be made within 6 months of the enactment or the decision.

(2) However, the Court may extend the time for making a claim if it is satisfied that substantial justice requires it."

9. It is clear the Court has discretion to extend time but only if the Court is satisfied that substantial justice of the case requires it. And the onus is on the applicant.
   
10. The applicant submits four issues that amount to the test for the Court to consider and apply –
    
    • (a) Whether the claimants have an arguable case?
      

The Court answers this issue in the negative.

From the evidence of Jack Andfalo, this dispute has been litigated over and over again in the village area and island land tribunals. At those hearings, the applicants have been parties together with others who were parties to the hearing in November 2007. Most decisions have favoured the Third Defendants and those decisions have been consistent. So what is the benefit of quashing the decision and sending the dispute back for a rehearing? It would only result in more time and cost spent and more delay to the disadvantage of the party who has judgment in its favour by denying them the right to enjoy the fruit of their judgment.

(b) Whether the claimants are directly affected by the decision of 26 – 27 November 2007?

The answer is also in the negative.

There is clear unchallenged evidence that on 5th November 2007, the claimants attended the hearing and withdrew their claim. As such, they were not affected by the decision of the Island Land Tribunal made on 26th – 27th November 2007 to give them standing in order to be able to invoke the application of Rule 17.5 (2).

(c) Whether there has been an undue delay?

The answer is yes. Clearly, there was undue delay of 2 years and 4 months. The claimant gives sickness as the reason for not taking any action and refers to a medical report. The medical report does not show that Dorsen Rongo was bedridden and unable to move and talk.

(d) Whether there was another remedy available to the claimant?

The answer is no, but the claimant is not entitled to resort to judicial review process simply because he was not affected by the decision complained of, and that there has been undue delay on his part that only he can be blamed for.

11. It is for those reasonings that the claimants’ application was dismissed. The Court was of the view that no costs should be awarded and that each party should meet their own costs.
    
12. The Court took the decision to dismiss the claimants’ application in order to allow finality to this long dispute.
    

DATED at Luganville this 6th day of May 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge