Loparu v Sope [2005] VUCA 4; Civil Appeal Case 26 of 2004 (3 May 2005)

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

Civil Appeal Case No. 26 of 2004

BETWEEN:

KALRAN LOPARU, KALKOT KALTABANG,
MICHAEL KALTABANG & OTHERS
Appellants

AND:

THOMAS SOPE, KIT SOPE, KALSAVE SOPE & OTHERS
Respondents

Coram: Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Oliver Saksak
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu

Counsels: Mr. George Nakou for the Appellants
Mr. Ishmael Kalsakau for the Respondents

Hearing Date: 28 April 2005
Judgment Date: 3 May 2005

JUDGMENT

This is an appeal against the Order of the learned Chief Justice in the Supreme Court sitting at Port Vila which was made on 25 November 2004. The Court dismissed the Appellants’ application for Judicial Review. The grounds of the appeal are that the learned Chief Justice did not accord a reasonable hearing to the Appellants and the parties concerned and contradicted the rules of natural justice in refusing to hear the Appellants’ evidence.

On 3 October 2003 the Efate Island Court delivered a Judgment on a land claim between Sope Kalmatalu and Family Kalpoi and Naflak Wit Family. No appeal was filed against that decision during the 30 days provided by Section 22 (1) of the Island Courts Act [CAP. 167] and no application for extension of time for the appeal was made within 60 days from the date of the decision appealed against under Section 22 (5).

The full text of Section 22 is as follows:-

“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 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 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 magistrates’ 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.”

The claim for judicial review of the Efate Island Court decision of 3 October 2003 was filed on 19 March 2004 claiming that the decision should not be registered and that part of the land adjudicated upon in the decision should not be dealt with and that the Respondents should be restrained from threatening behaviour or damage of existing crops on the land involved and that certain parties should be added to the case heard by the Island Court.

In its orders the Supreme Court struck out the Appellants’ claim and ordered costs to the Respondents on the basis that there was no arguable case. It held the Appellants were not directly affected by the decision as they were not parties to it but only witnesses. The Supreme Court held that the claim for judicial review was ill-conceived and that the Respondents’ named in the claim for judicial review were not the proper respondents required to be joined by rule 17.4 of the Civil Procedure Rules, No. 49 of 2002.

The issue before this Court is whether, as the appropriate step for the Appellants to appeal in the usual way against the Island Court’s decision had not been taken, the Appellants can now apply for judicial review of the decision.

It is clear that at least three of the Appellants (Kalkot Kaltabang, Kenneth Kalomtak and Lewi Kalpoi) were witnesses in the Island Court. In addition the Appellant Kalran Loparu had signed a statement as the part of the Naflak Wit claim.

The Appellants’ contention that they did not have the right to be present at the hearing in the Efate Island Court concerning the subject land is, as the Respondent has submitted, mischievous. Most of the Appellants were not only aware of the Island Court proceedings but took part in them and the fact that they elected to be part of the Naflak Wit claim was their choice. They did not elect to claim as custom owners independently of the Naflak Wit but as part of that claim. They had their opportunity to become claimants but did not take it at the time and now seek another bite of the cherry.

Section 22 (above) sets out a process for appeal subsequent to an Island Court decision. The wording of section 22 does not restrict an appeal to parties in the Island Court hearing but can include “any person aggrieved by an order or decision”. Such an appeal would be to the Supreme Court as the matter concerned a dispute as to ownership of land. The Appellants in this case did not follow the statutory process by appealing within 30 days or by making an application to grant an extension of 30 days period within 60 days referred to in the enactment had they been out of time.

The Appellants clearly knew about the Island Court hearing and took part in it. They had the opportunity of appealing but did not do so.

A claim for Judicial Review can be made pursuant to rule 17.4 of the Civil Procedure Rules:-

“Claim for judicial review

17.4 (1) A person claiming judicial review may file a claim claiming:-

(a) a declaration about an enactment; or

(b) a mandatory order, a prohibiting order or a quashing order about a decision.

(2) The claim must name as defendant:-

(a) for a declaration, the Attorney General; and

(b) for an order about a decision, the person who made or should have made the decision.

(3) The claim must:-

(a) set out the grounds for making the claim; and

(b) have with it a sworn statement in support of the claim; and

(c) be in Form 34.”

The Appellants sought an order quashing a decision. It is required by the rules that it name as a defendant the person who made or should have made the decision, which in this case was the Efate Island Court.

The learned Chief Justice in his reasons held that the defendants to the claim for Judicial Review were not the proper persons. The Island Court should have been named as the defendant.

In our view the Chief Justice’s decision as to that is unchallengeable.

A further criticism of the Supreme Court decision was based on the fact that the Court refused to hear the Appellants’ evidence. Under the Civil Procedure Rules the court must be satisfied as to the Claimants’ case. The role of the Court is set out in rule 17.8 which provides as follows:-

“Court to be satisfied of claimant’s case

17.8 (1) As soon as practicable after the defence has been filed and served, the judge must call a conference.

(2) At the conference, the judge must consider the matters in subrule (3).

(3) The judge will not hear the claim unless he or she is satisfied that:-

(a) the claimant has an arguable case; and

(b) the claimant is directly affected by the enactment or decision; and

(c) there has been no undue delay in making the claim; and

(d) there is no other remedy that resolves the matter fully and directly.

(4) To be satisfied, the judge may at the conference:

• (a) consider the papers filed in the proceeding; and
  
• (b) hear argument from the parties.
  

(5) If the judge is not satisfied about the matters in subrule (3), the judge must decline to hear the claim and strike it out.”

His Honour considered the provisions of Rule 17.8 (3) and concluded that there was no arguable case apart from the fact that the named Defendants were not the proper ones.

Under rule 17.8 (4) the judge is not required to hear the Claimant’s evidence at the first conference but may consider the papers filed in the proceedings and hear argument from the parties. The learned Chief Justice did that properly and in terms of Rule 17.8 (5) declined to hear the claim and struck it out.

Judicial review under the rules may apply to a decision of a statutory court where that body exceeds its jurisdiction or fails to comply with the appropriate statutory process. In an appropriate case there could be a basis for an application for judicial review of a decision such as this, but any appeal on the merits of the case as to factual findings can only be made under the statutory process of appeal under the Island Courts Act. The Appellants had the opportunity to appeal as “persons aggrieved by an order or decision of an Island Court” but failed to pursue their rights in that regard.

We agree that the learned Chief Justice was correct in finding that the application to add other Claimants to the list of Appellants could not change or cure the fundamental misconception of the judicial review claimed in these circumstances.

Accordingly the appeal is dismissed and costs of VT50,000 are awarded to the Respondents against the Appellants.

DATED at Port Vila, this 3^rd day of May 2005.

BY THE COURT

Hon. Bruce Robertson J.
Hon. John von Doussa J.
Hon. Oliver A. Saksak J.
Hon. Patrick Treston J.
Hon. Hamlison Bulu J.