Kalsakau v Jong Kook Hong [2004] VUCA 2; Civil Appeal Case 30 of 2003 (8 June 2004)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 30 of 2003.

BETWEEN:

NARU KALBEAU KALSAKAU
Appellant

AND:

JONG KOOK HONG
First Respondent

AND:

DANIEL KALORIB
Second Respondent

AND:

DIRECTOR OF LANDS DEPARTMENT
Third Respondent

AND:

DIRECTOR OF LAND RECORDS
Fourth Respondent

AND:

MINISTER OF LANDS
Fifth Respondent

Civil Appeal Case No. 31 of 2003.

BETWEEN:

DIRECTOR OF LANDS DEPARTMENT
First Appellant

AND:

DIRECTOR, LAND RECORDS
Second Appellant

AND:

MINISTER OF LANDS
Third Appellant

AND:

NARU KALBEAU KALSAKAU
First Respondent

AND:

SPECTRUM INVESTMENTS PTY LTD.
Second Respondent

AND:

JACKY BAKOKOTO, KALTOUA BAKOKOTO,
KALORY BAKOKOTO and KIRKIR BAKOKOTO
Third Respondents

Coram: Hon. Justice Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver A. Saksak
Hon. Justice Patrick I. Treston

Counsel: Mr. Boar for Naru K. Kalsakau
Mr. Morrison for Jong Kook Hong
Mr. Edwards and Ms. Molisa for Director of Lands Department, Director of Land Records and Minister of Lands
Mr. Nakou for Spectrum Inv. Pty. Ltd.
Mr. Saling Stephens for Jacky Bakokoto and others

Hearing Date: 1 June 2004
Judgment Date: 8 June 2004

JUDGMENT

These two appeals have been heard together. They involve precisely the same issues and the same factual scenarios although, as can be seen from the papers, the parties are somewhat different. The actions in the Supreme Court were commenced by Mr. Naru Kalbeau Kalsakau in each case and were Originating Summons filed by him seeking orders and declarations that:-

1. The execution of land lease titles between the various parties in 1997 and 2001 in respect of the land which comprises the land known Tamau Land was null and void.
   
2. The Director of Lands Department and the Director of Lands Records and the Minister of Lands be restrained from issuing new land titles on the said Tamau land and in particular the relevant lease titles.
   
3. The respective lessee in each case be restrained from developing or doing any business on the said land lease titles pending the determination of the customary land owners in respect of the said Tamau land in the Supreme Court in Land Appeal Case No. 1 of 1995.
   
4. He be paid compensation of VT10 Million for damages.
   
5. He be paid the costs of and incidental to the applications.
   

The Efate Island Court delivered a decision in Case No. 4 of 1993 concerning the land in question in 1995. That year Mr. Naru Kalbeau Kalsakau paid the Supreme Court appeal fee. Other papers were filed in 2000 and leave was granted to Mr. Kalsakau to appeal out of time to the Supreme Court against the Island Court decision.

On 2 August 2002 the Supreme Court Civil Case the subject of Civil Appeal Case No. 30 of 2003 was struck out by the learned Chief Justice who held that there was not a land case appeal on foot.

In 2003 the Chief Justice declined to strike out the Supreme Court civil case the subject of Civil Appeal Case No. 31 of 2003 and later in that year stayed the proceedings pending resolution of this appeal.

It is against those decisions of the learned Chief Justice that the respective parties appeal.

A relevant and more detailed chronology of the facts is as follows:-

13 March 1995 - Efate Island Court orally delivers its decision in Land Case No. 4 of 1993, concerning Tamau Land, in which Mr. Kalsakau was one of the claimants.

March/April 1995 - Sealed, typed and signed copy of decision released.

21 April 1995 - Mr. Kalsakau pays Supreme Court appeal fee.

11 June 1997 - Lease between Jacky Bakokoto and others (as lessor) and Spectrum Investments Pty. Ltd. (as Lessee) registered in Land Leases Register. (Appeal 31/03).

23 August 2000 - Chief Registrar of the Supreme Court issues a Certificate of Appeal stating that an appeal in respect of Tamau land was still pending before the Supreme Court.

12 December 2000 - Supreme Court grants Mr. Kalsakau leave to file Notice and Grounds of Appeal out of time in Land Appeal Case No. 1 of 1995.

16 March 2001 - Lease between Jong Kook Hong and Daniel Kalorib registered in the Land Leases Register (Appeal 30/03).

31 October 2001 - Mr. Kalsakau files Notice of Appeal in Land Appeal Case No. 1 of 1995 appealing the Efate Island Court judgment in Land Case No. 4 of 1993.

2 August 2002 - The Supreme Court (the learned Chief Justice) strikes out Supreme Court Civil Case in 30/03 on the basis that Mr. Kalsakau has no cause of action as appeal in Land Appeal Case No. 1 of 1995 was filed out of time.

27 May 2003 - The Director of Lands and the Director of Land Records and the Minister of Lands apply for an order that Supreme Court civil case in appeal 31/03 be struck out on the basis that Mr. Kalsakau had no cause of action as the appeal in Civil Case No. 1 of 1995 was made out of time.

12 June 2003 - The learned Chief Justice declines to strike the claim in Supreme Court Civil Case No. 31/03.

11 August 2003 - The learned Chief Justice grants leave to appeal the decision of 12 June 2003 and stay the proceedings until the Court of Appeal has dealt with the appeal

Counsel for the State Law Office submitted that:-

1. The Supreme Court had no jurisdiction or power to extend the time in which Mr. Kalsakau could appeal the decision of the Efate Island Court.
   
2. Mr. Kalsakau could not succeed in either of his claims because the Island Court decision had not been stayed. Mr. Kalsakau had no standing to challenge either lease because he was not the declared custom land owner and had no other right to possess the land and was not a party to either lease. In the absence of any stay of the decision of the Efate Island Court the leases were validly entered into between the declared custom land owner and the lessees.
   

It was submitted that both of Mr. Kalsakau’s claims should properly be struck out.

Mr. Morrison, Mr. Stephens and Mr. Nakou effectively adopted the submissions made by Mr. Edwards.

Mr. Boar, on behalf of Mr. Kalsakau argued that the paying of the invoice in relation to the land appeal was sufficient to demonstrate his client’s “strong intention to appeal”. It was submitted that his client’s application for leave to appeal out of time on 12 December 2000 was properly granted and that decision had not been appealed against. It was submitted on behalf of Mr. Kalsakau that when the learned Chief Justice made the other order he was functus officio and that it was inappropriate for him to enter a decision on the basis that Mr. Kalsakau had not appealed the judgment of the Island Court.

Section 22 of the Island Courts Act (the “Act”) provides:-

“(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 magistrates’ 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 decisions 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 therefore is made within 60 days from the date of the order or decision appealed against.”

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 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 period must be made within 60 days. Outside the 60 days no relief can be sought or granted.

In this particular case the evidence as to “the date of the decision” is uncertain, vague and equivocal. Examination of the Island Court file reveals that the handwritten decision of the learned magistrate is dated 13 March 1995. Likewise the 59 page typed, sealed and signed decision is also dated 13 March 1995. There was some evidence available to this Court however that the learned magistrate orally delivered his decision on 13 March 1995 and that the typed, signed and sealed decision may not have been available until sometime later. It certainly must have been available before Mr. Kalsakau paid his invoice dated 20 April 1995 and obtained a receipt dated 21 April 1995. However, there remains some doubt as to whether or not Mr. Kalsakau had paid that invoice within the 30 days specified by Section 22 (1) although he certainly paid it within the 60 days specified by Section 22 (5).

The question is whether or not payment of that invoice was sufficient to constitute an appeal under Section 22 because Section 22 (1) does not require a notice of appeal as such to be filed.

It may be that although Mr. Kalsakau did apply to the Supreme Court on 12 September 2000 for leave to file a notice and grounds of appeal out of time he may not have needed to have done so. It is not a matter which we need to determine and is one which we ought not to determine because there is no appeal against the learned Chief Justice’s decision of 12 December 2000.

In any event it would be inappropriate for this Court to make any ruling in relation to Mr. Kalsakau’s application for leave to appeal out of time because of the uncertainty surrounding the question of exactly when the decision of the Island Court was actually made on which Mr. Kalsakau bears the onus of proof and also because the other parties who may be affected by any decision in relation to granting of leave to file a notice and grounds of appeal out of time are not before this Court. Those parties are the other parties to the Island Court decision and would have to be given an opportunity to be heard on any such application. However for reasons which follow that course of action is not necessary.

In relation to second submission made by Mr. Edwards as to whether the civil cases in the Supreme Court should be struck out for want of standing, we dealt with a similar matter in Thérèse Traverso –v- Chief Kas Kolou [2003] VUCA 18; CAC No. 26 of 2003 where we said:-

“When there has been a determination by an Island Court followed by the lodging of an appeal it should not be assumed that that creates the circumstances of a dispute.”

In addition no party, including Mr. Kalsakau, applied for a stay of the Island Court decision dated 13 March 1995 where the Court held as follows:-

“This Court therefore declares the following declarations by way of affirming the chief’s decision:-

(c) The Court declares that Claimants No. 1, 2 and 4 are owners of their already identified parcels of land within Tamau. This declaration is not made in the sense of co-owners but each of the aforementioned claimants in this declaration knows where his plot of land is.

(d) That land development already started be now continued.

(e) That the winning parties shall meet all costs of these proceedings. The total cost involve is VT165,000 due and payable within 3 months. 30 days to appeal.

Thus we find that in each of the actions subject to appeal the leases were properly entered between the declared custom owners and the respective lessees and in the absence of any stay of the Island Court decision the leases are lawful and valid.

In addition, in terms of Traverso’s case (above), as there was no dispute, the leases did not need to be signed by the Minister under Section 8 of the Land Reform Act [CAP. 123].

Accordingly, we uphold the learned Chief Justice’s ruling striking out the Supreme Court Civil Case in Civil Appeal Case No. 30 of 2003 and we strike out the Supreme Court Civil Case in Civil Appeal Case No. 31 of 2003 as the claimant Mr. Kalsakau, in each of those cases, had no cause of action as he is neither a declared customary land owner, nor a party to the leases, nor does he have any present interest in relation to either of the leases. He has no standing to have the leases set aside.

In neither case could Mr. Kalsakau challenge the lease as being null and void, nor could he seek from the Court a ruling that the Director of Land Records or the Minister of Lands be restrained from issuing new land leases on the relevant Tamau Land nor could he succeed in his application that the present lessees be restrained from developing and or doing any business on the land pending the determination of the Supreme Court in Land Appeal Case No. 1 of 1995. Likewise the claim for compensation must fail in each case. Should he ultimately be a party to the Land Appeal Case and should he succeed he would have rights in equity in relation to the recovery of any benefits which the present declared custom land owner might have gained.

We award costs against Mr. Kalsakau in favour of the other parties in each appeal case as agreed or as determined by the Supreme Court in due course.

DATED at Port Vila, this 8^th day of June 2004.

Hon. Robertson J.
Hon. von Doussa J.
Hon. Fatiaki J.
Hon. Treston J.
Hon. Saksak J.