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Timatasomat v Family Kalpoi [2007] VUSC 23; Land Appeal Case 71 of 2006 (13 February 2007)

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

LAND APPEAL CASE No.71 of 2006

IN THE MATTER OF: A land Appeal from the Efate Island Court concerning Teouma – Rentapau Land

BETWEEN:

TIMATASOMAT & SOMOR USAMOLI
Applicants

AND:

FAMILY KALPOI
First Respondent

AND:

FAMILY KALPONG
Second Respondent

AND:

FAMILY KORIMAN
Third Respondent

AND:

FAMILY KALMERMER
Fourth Respondent

AND:

FAMILY KALWATONG
Fifth Respondents

AND:

CHIEF KALTAPAU & Descendants
Sixth Respondent

AND:

FAMILY KALONIKARA
Seventh Respondent

AND:

FAMILY NASE KALMET TALEO
Eighth Respondent

AND:

FAMILY FATAN KALMARI
Ninth Respondent

▪ Mr Gray Willie Timatasoliu, a representative of Chief Timatasomat
▪ Mr Lukai Malau, a representative of Somor Usamoli
▪ Mr James Tari for Family Kalpoilep
▪ Mr Silas Hakwa for the Family Kalmermer
▪ Mr Jack Kilu for Family Koriman
▪ Mr Nigel Morrison for Family Kalpong & Family Kaltapau
▪ Mr Ishmael Kalsakau for Family Kalonikara
▪ Mr Daniel Yawha for Family Kalwatong
▪ Mr Saling Stephens for Family Kalmari
▪ Family Nase Kalmet Taleo

JUDGMENT

This is an application by Timatasomat to be joined as a party in the Land Appeal Case No.71 of 2006. Mr Lukai Malau, a representative of Somor Usamoli was present. He said Mr Gray Willie will speak for both of them. There is no application filed by Somor Usamoli. The only application was that filed by Gray Willie Timataso Liu on behalf of Timatasomat on 3rd August 2006. Timataso Liu filed two (2) sworn statements on 4 August 2006 and 7 February 2007 in support of the application. The Respondents filed responses and sworn statements to challenge the application.

The Court gave time to Mr Gray Willie Timataso Liu to present his application. He gave oral evidence. He said he made sworn statements on behalf of the Applicant, Timatasomat. Upon enquiring from the bench as to the whereabouts of the Applicant, Chief Timatasomat, Gray Willie informed the Court that Chief Timatasomat was present in Court. She was the surviving wife of Timatasomat of Tongoa Island. She was then called into the witness box. She stated her case, gave evidence and was cross-examined by Mr Jack Kilu and Mr Saling Stephens. Her evidence is that she heard that people from Eratap Village have already made claim over the land. It was good that she will be joined as a party in the Land Appeal Case. She lives in Port-Vila since 1999. She confirmed she is the Chief and her people worked under her (authority). In 1993, Timatasomat Family lived in Tongoa. In 1993, she and one of her children stayed in Port-Vila. In 1999, she did not check if there was claim over Teouma Rentapao land. Her husband died in 1997. Mr Gray Willie and Mr Lukai Malau gave evidence.

The findings are as follows:

▪ Teouma Rentapao land claim was made in accordance with procedural requirements of publicity through advertisement in 1993.
▪ The Efate Island Court delivered its judgment in the Land Case No.8 of 1993 on 24 March 2006.
▪ There was no land claim made by the Applicant in respect to the said land in 1993 or 1999 until this appeal. The applicant lives in Vila since 1999.
▪ They do not live in the area of land in dispute. They claim to have custom interest over the said land. They do show any association with the disputed land.
▪ There are also inconsistent evidence provided in the testimonies and hearsays.
▪ There is therefore lack of compelling evidence in support of the application.

Section 22(1) of the Island Court [CAP.167] is the relevant provision. It provides that: "Any person aggrieved by an order or decision of an Island Court may within 30 days from the date of such an order or decision appeal therefrom to-

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

The application under consideration is an application by the Applicant to join the parties on the Land Appeal Case No.71 of 2006. The current position of the law which as reflected in the judgments of the Court of Appeal and Supreme Court, is that, a person who is not a party in a land case in the Island Court cannot be joined as a party in the Supreme Court on a land appeal.

However, Section 22(1) of the Island Court speaks of "any person aggrieved by an order or decision of an Island Court may... appeal...". [Emphasis added]

The wordings of Section 22(1) are clear. Section 22(1) does not limit the right to appeal an order or decision of an Island Court only to the parties before that Island Court but on the contrary, it extends that right to "any person aggrieved" by such an order or decision. However, this appeal must be made within 30 days from the date of the order or decision appealed against. If an extension of such a period is required, such an application must be made within 60 days from the date of the order or decision appealed against.

In the present case, the applicants are not parties in the Efate Island Court. They apply to this Court. Their application was heard. They provide oral evidence. They were cross-examined by the other parties. The Respondents provide responses and submissions. After considerations, the Court dismissed the application because there was lack of compelling evidence and in any event, the appeal was filed far beyond 30 days period. Further even if an extension of time to appeal is requested, it would be far beyond 60 days requirement under Section 22(1) of the Island Courts Act [CAP.167].

ORDER

1. The application is dismissed.

2. There is no order as to costs.

DATED at Port-Vila this 13th day of February 2007

BY THE COURT

Vincent LUNABEK
Chief Justice