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Family Mete v Family Wolu [2006] VUSC 68; Land Appeal Case 053 of 2004 (17 August 2006)

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

LAND APPEAL CASE No.53 of 2004

IN THE MATTER OF: ISLAND COURTS ACT [CAP.167]

Mr Felix Laumae for the Applicant / Intended Appellant
Mr Daniel Yawha for the Respondent

JUDGMENT

This is an application by the Intended Appellant, Family Mete, dated 6 May 2005 and filed on 10 May 2005 to extend time for an appeal against a judgment of Tafea Island Court of 27 October 2003. There were various appeals filed by the Intended Appellant against various Tafea Island Court judgments obtained by the above-named Respondents. However, those appeals filed against the judgments of Island Court obtained by Family Natingo, Family Avelvel, Family Yaviong were all withdrawn. The only appeal which is still on foot is that filed against the judgment of the Tafea Island Court dated 27 October 2003. The Respondent to that appeal is Family Wolu.

On 27 October 2003, the Tafea Island Court issued a Land Judgment on a land called "Nompunlou". It is an undisputed claim of land. The land Nompunlou is located at Dillons Bay on the Island of Erromango.

The Applicant filed two (2) sworn statements in support of their application. One by William Mete of 1 April 2005 and another by John Mete filed on 11 May 2006.

The Respondent filed a sworn statement of Kenneth Wolu on 11 May 2006 in reply.

The facts are not in dispute. From the sworn statements the following facts can be extracted:-

• On 4 November 1999, the Respondent Family Wolu filed a land claim at the Tafea Island Court claiming for the ownership of the land called "Nompunlou" situated at Dillons Bay on the Island of Erromango.

• The Tafea Island Court issued 2 advertisements on 3rd November 1999 and 18 September 2003.

• The advertisements were to the effect that there is a claim registered at the Tafea Island Court on 4 November 1999. The claim was lodged by Family Wolu of Dillons Bay Erromango. The claim that they are the rightful owner of the land "Nompunlou" at Dillons Bay Erromango. Any person who thinks that he has an interest on that land, has 30 days to file a counterclaim. The advertisements were made at Dillons Bay, Erromango.

• It is a fact that apart from the land claim of Family Wolu about "Nompunlou" land, no other person filed a counterclaim at the Tafea Island Court to counterclaim "Nompunlou" land from 4 November 1999 to 27 October 2003.

• On 27 October 2003, it was a fact that, one representative of the Family Mete was present in the Tafea Island Court. He attempted to make an opposition/objection to the issuance of the Judgment so that Family Mete could file a counterclaim. The Tafea Island Court refused his application on the basis that the 30 days period had expired and Family Mete were not a party to the land claim.

• On the same date, the Tafea Island Court issued a Judgment on that undisputed land claim in favour of Family Wolu. The effect of that Judgment is that Family Wolu is the custom owner of the land called "Nompulou" situated at Dillon’s Bay on the Island of Erromango.

• It is also a fact that Family Mete knew about the land claim lodged by Family Wolu at Tanna Island Court on November 1999.

• It is a fact that Family Mete knew about the advertisements of the land claim about "Nompunlou" at Dillons Bay on Erromango on November 1999 and 18 September 2003. This is confirmed by Mr William Mete in his sworn statement of 1 April 2005 (paragraph 8).

• It is a fact that after the issuance of the Judgment on 27 October 2003, the Tanna Island Court issued a Notice of the Judgment to notify the Claimants and any person on Dillons Bay on Erromango and Tafea Province and elsewhere in the country that a judgment has been issued by the Tanna Island Court on 27 October 2003. It declares that Family Wolu is the right custom owner of "Nompunlou" land located at Dillons Bay, western part of the Island of Erromango. If a person is aggrieved by the said judgment, he has 60 days to file and serve an appeal to the Supreme Court. The 60 days starts on the date of the Judgment.

• The Intended Appellants filed their appeal on 9 January 2004.

• The application to grant an extension of time to file the appeal was filed on 10 May 2005.

The Applicants/Intended Appellants contended that the Notice of Judgment is undated and should not be relied upon and considered by the Court.

However, on the facts and circumstance of this case, I accept that it is a proper and valid Judgment Notice. The Intended Appellants were aware of it.

There were also allegations of bad advice provided by the then Clerk of Tafea Island Court, Jona Mesao. It was alleged that his father-in-law is James Yaviong one of the parties successful by default. I have perused the sworn statements filed in support of the application and the response. I find no relevant material in support of the allegations. The allegations against the Clerk are ill-founded. In any event, Mr Yaviong is not the successful declared custom owners of "Nompunlou" land, the subject of this case.

The relevant provisions of the Island Courts Act [CAP.167] in relation to claim procedures, process of and filing of a land claim are: Sections 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the subsidiary legislations (as amended):-

"PUBLICITY IN LAND CASES

8. Where the subject matter of the claim is land the clerk shall, by notices posted on the land and by other appropriate means, advise the public of the date of the hearing of the cause and of the names of the parties; and the clerk shall inform the public that all person having an interest in the proposed cause shall as soon as possible apply to the court to be joined as plaintiffs or Defendants, as the case may be.

"PERIOD OF PUBLICITY

9. Such publicity as is mentioned in Order 6 rule 8 shall continue for a period of 30 days as from the date of the notices were posted on the land.

COSTS OF PUBLICITY

10. The costs of publicizing the land-claim shall be born in full by the party or parties registering the claim.

REGISTRATION OF UNDISPUTED CLAIMS

11. If the land the subject matter of a claim remains undisputed after the 30 days referred to in rule 9, then the presiding magistrate shall cause to be entered a judgment in the records of the court in the name of the claimant or Claimants, as the case may be.

ADVERTISING THE JUDGMENT

12. Such judgment as is referred to in rule 11, shall then be advertised in the manner prescribed in rule 8 for a period of 60 days subject to the payment of the costs of such advertisement by the party or parties in favour of whom the judgment has been entered.

RIGHT OF APPEAL

13. Any party wishing to appeal such judgment may do so pursuant to section 22 of the Act.

REGISTRATION OF CLAIM

14. If no appeal has been lodged within the time specified in section 22 of the Act then the presiding magistrate shall cause the said judgment to be registered with the Land Records Office and at the Supreme Court Registry.

REGISTRATION OF CONTESTED LAND CASE

15. If no appeal has bee lodged after 60 days from the delivery of a judgment in a contested land-claim then the presiding magistrate shall cause the said judgment to be registered with the Land Records Office and the Supreme Court Registry.

PROOF OF CUSTOMARY OWNERSHIP

16. The production of a certificate from the Land Records Office or the Supreme Court Registry shall be sufficient proof in tall matter as to the true custom ownership of the land mentioned in the certificate."

Section 22 of the Island Courts Act is the relevant provision for appeals. It reads:

"APPEALS

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 therefrom to-

(a) the Supreme Court, in all matters concerning disputes as to ownership of land;

(b) the competent magistrate’s court in all other matters.

(2) The court hearing an appeal against a decision of an island court shall appoint two or more assessors knowledgeable in custom to sit with the court.
(3) The court hearing the appeal shall consider the records (if any) relevant to the decision and receive such evidence (if any) and make such inquiries (if any) as it thinks fit.
(4) An appeal made to the Supreme Court under subsection (1)(a) shall be final and no appeal shall lie therefrom to the Court of Appeal.
(5) Notwithstanding the 30 day period 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 therefor is made within 60 days from the date of the order or decision appealed against."

Application of the law to the facts which are not in dispute

Applying the law to the facts, I am of the view that this application cannot succeed. 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 Appeal in Raupepe case cannot help/assist the Applicant, Intended Appellant in the present case. The Intended Appellants were aware about he registration of the land claim of Nomplunlou in the Tafea Island Court. They were aware about the Judgment Notice. They took no steps to protect their interest. The only step taken by the Intended Appellant was to file an appeal on 9 January 2004. It was out of time.

Section 22 of the Island Court Act [CAP.167] must be interpreted and applied strictly in line with the Court of Appeal judgment in Naru Kalbeau Kalsakau v. Director of Lands which is applied and followed by the Supreme Court judgments since the Appeal Judgment. The application is therefore dismissed. The Respondents are entitled to their costs.

The following Order is issued by the Court:

ORDER

1. The application of the Intended Appellant, Family Mete, is dismissed.
2. The Respondents are entitled to their costs in the proceedings incidental to this application.
3. The costs are to be agreed if not to be assessed and taxed.
4. The next date for conference as to costs: Thursday 5 September 2006 at 1.30PM.

DATED at Port-Vila this 17th day of August 2006

BY THE COURT

Vincent LUNABEK

Chief Justice