In or about 1997 the Respondent
lodged a claim for customary ownership of all that land known as “LAWAT”
land situated
at or near Cape Queiros, East Santo in the Santo/Malo Island
Court (Island Court).
After receiving suchaim
the clerk to the Island Court made arrangements for the claim to be
publiciblicised or issued
in accordance with the provisions of Order 6 Rules 8
and 9 of the Island Court (Civil Procedure) (Amendment) Rules No.1 of
1993
(the Principal Rules). The public notices were put up in and around Port
Olry and Cape Queiros and on the property
itself, advising the general
public of the Respondent’s claim and also inviting any person who think he
may have a claim
to lodge the same in the Island Court before the expiration
of 30 days notice. Such publicity was given for a period of several
months
at least two times but no other person came forward to lodge or register any
claim as to the customary ownership
of the land.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Appellant saw the Notice at
Port Olry. He attended the Court Clerk who explained the purpose of the
Notice of him.
He understood the purpose of the Notice. Two years later on 7th
July 1999 the Island Court gave judgment in Land Case No.12 of 1997 and
declared the Respondent to be the undisputed
custom-owner of LAWAT land in
the following words:-
“Lee Caleb Nohe Hemi kastom ona
blong graon nem blong hem
“LAWAT” we istap long Cape
Queros long aelan blong Santo.”
There was no other party to
and/or in Land Case Nof 1997. However, following the judgement the
presidiesiding Senior Magistrate
in Land Case No.12 of 1997 issued a further
Notice advising the general public of the Judgment and again inviting
persons
who are unhappy with the judgement that they have a further 60 days
to appeal to the Supreme Court. The Notice reads:
<
“NOTIS BLONG JASMEN BLONG KASTOM ONASI
BLONG UNCONTESTND CLAIM
Mi, Jimmy Garae, Senior Magistret mo Presiden Santo/Mal Aalen Kot, folem Oda 6 ba 6 blong Aalen Kot (Sivil Prosija) Rul, CAP.167,
mo
olsem we I amended by rul 11,12 mo 13 blong Oda ia by Aalan Kot (Sivil
Prosija) (Amenmen) Rul No.1 blong 1993, mi
nao givim notis se Santo/Malo
Aalen Kot ibin long namba 7 dei blong Manis Julae, 1999 givim wan jasmen we
I diklerem
Mr LEE C Nohe olsem uncontested (nokat man I agensem klem) custom
owner blong graon nem blong hem “LAWAT” we istap long Kap
Kweros long aelan
blong Santo.
n lang="EN-GB">Eni man we ino klat long jasmen ia hemi save apil iko
long Suprim Kot Kot insaet long 60 day stat long
de Kot igivimaot jasmen.
Signed: Jimmy Garae.”
Following that Notice, the
Appellant lodged a Notice of Appeal and a Memorandum of Appeal dated 24th
August 1999 on 23rd August 1999 and paying the sum of VT75,000 as
his appeal fee.
The Respondent on his part
issued a summons seekmong other things leave to e to apply for an order for
mandamus and certiorari.
Upon hearing that summons Counsel for the Appellant
raised the issue of the appeal of the Appellant and submitted that the
appeal be heard before the summons. I accepted that submission after
satisfying myself that the Appellants have in fact
lodged appeal and having
paid the appropriate fee. Being first in time it was proper in my view to
hear the appeal.
Counsel for the Respondent
however raised two preliminaryinary issues for consideration by the Court before
hearing of
the appeal itself. These were:-
an lang="EN-GB" style="font-style: normal">(1) p;&nssp; p; &nbp; &nbp;
clasoBody aligft" s"textn: left; margin-left: 36.0pt; margin-top:-top: 1; m 1; marginargin-bott-bottom: 1om: 1">
">
(2) &nbssp; &nbssp; &nbp;
Are the srovisions of Rules 12 of Order 6 of the Island Courts (Civil
Procedure) Rules 1984 as amended by the Island Courts
(Civil Procedure)
(Amendment) Rules No.11 of 1993 intra vire prons of the Act, ort, or
alternatively, are they ultra
vires the provisions of the Act.
The Court issued Direction
Orders on 14th February requiring the Respondent to make written
submissions concerning the two issues within 7 days. The Appellant had 7
days thereafter to respond, and the Respondent had a further 7 days to
reply. Counsel for the Respondent complied with
Direction Orders No.1.
Counsel for the Appellant failed to comply with Order 2 and therefore Order
(3) could not be performed.
The appeal was listed for 2nd March,
2001. Counsel for the Respondent appeared on that date. Mr Toa did not to
the detriment of his client.
Submissions
p class="MsoBodyText" alignalign="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
Mr Hakwa made a lengthy
written submissions outlining first the brief facts. Secondly he submitted
on the statutory legal
provisions beginning with the Constitution, the
Island Courts Act [CAP.167] and its subsidiary legislations, Rules and
Orders and the Interpretation Act [CAP.132] sections 12 and 15. These were
submitted for consideration by the Court in relation to the two issues and
other
issues raised in the summons of the Respondents.
Those submissions and
arts were unchallenged and thnd therefore the Court accepted them in their
entirety.
Issues
(a)
Standing
In relation to the issue of
standing of the Appellant, sect section 22(1) of the Act reads:-
“Any person aggrieved by an
order cision of an island court murt may within 30 days from the date of
such order or decision
appeal therefrom to -
(a) the Supreme Court, in matters concerning disg disputes as to ownership of land …….,”
This section provides for and
creates a right of appeal. Order 60, Rule 1 of thef the High Court (Civil
Procedure) Rules
1964 provides for the manner in which appeals shall be
dealt with and brought. This concerns only appeals from the Magistrate’s
Court to the Supreme Court and I will not set out its provision.
The term “appeal” is defined
as follows as:-
p class="MsoBoMsoBodyText" align="left" style="text-align: left; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margitom:
1">
(a) ;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp;
“a requert for a review by a superiort of ision of a lower
court.” see Collins Paper back English Dictionary (2ndnd
Edition) 1992.
(b) p;&nbbsp;&nsp; &nsp; p; &nnsp;&
sp;
“aan>“any proceeding taken to rectify an erroneous decision of a court or
tribunal by bringing it before a highurt.”ee Oss Concise
Law
Dictionary (8th > EditiEdition) 1on) 1993.
(c) ;&nspp;&nssp; p; &nbp; &nbp;
by the losing party, from a lower
court to one of superior jurisdiction for the purpose of obtaining a review”
see Dictionary of selectedegal And s, Edwa Edward J.rd J.
Boarder (2nd Edition) 1979. (emphasis, mine)
I favour the definition given
in (c) above. Whilst the definitions in (a) and (b) respectively are also
helpful, the definition
in (c) goes further to include the person who has
and can have the standing or right to appeal against a decision of a lower
court to or in a superior court. I have therefore underlined the words “by
the losing party” because this suggests or
indicate in my opinion that in a
proceeding before any court, except in contentious applications or matters
of probate
or adoption, there is usually more than one party. And where
there are more than one parties before a court, the losing party
always has
the right to appeal to a superior court for review.
The Chambers Dictionary
1993 defines
“appeal” as “process by which a party may have a decision reviewed by
a higher court of authority.”
I again emphasis the
“party” here used because it indicates that in a lega legal proceeding there are
usually parties,
and all parties, in particular the losing party, has the
right to appeal. The same defines “Party” as “a side in a lawsuit.”
class="Mss="MsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
Collins Paper back English
Dictionefines
“Party” as “the person taking part in legal proceedings.”
Osborn’s Concise Law Dictionary defines
“party” as “ a person who takes part in a transaction or legal proceedings.”
The word “party” or “parties” is used widely
in the Act and the Principal
Rules. Rule 8 provides for any other person interested in a claim before the
court to join
as a party in the proceeding. Order 9 of the Magistrate’s
Court (Civil Procedure) Rules, 1976 defines what a “party” or “parties”
in
or to an action or cause are.
ass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
Rule 8 of Order 6, Order 9
(Magistrates’t Rules) and Order 17 (Supr(Supreme Court Rules) make
provisions under which any
person interested in a cause or action before the
Court may apply to become a party thereto. I do not intend to set out these
provisions.
lass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
From the given facts, the
appellant was not a party in Land Case No.12 of 1997. He knew full well
about the claim by the
Respondent but he chose on his own free will not to
become a party. At no time has he shown that he applied in accordance with
the Rules to be joined as a party to Land Case No.12 of 1997.
I am therefore satisfied and
accept the Respondent’missions that for the purpopurposes of this purported
appeal, the word
“party” must mean and can only mean a person who is (or
was) a party to the proceedings in Land Case No.12 of 1997. Further,
I am
satisfied that the term “Any person aggrieved” as used by section 22(1) of
the Act must and can only mean a person
who is or was a party in or to legal
proceedings No.12 of 1997 and who having lost the battle in that lawsuit,
and being
aggrieved by that decision or judgment, has and can invoke that
appeal right in section 22(1).
(b) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;
sp;
Are
provisions ofs 12 5 of 6 ofRulesa virction 22 n 22
of the Act?
The whole process begins with
a Notice issued under Rule 8 of Order 6 which reads:-ads:-
“where the subject matter of
the claim is land the clerk shall by notice 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 persons having an interest in the proposed cause shall as soon as
possible apply to the Court to be joint as
plaintiffs or defendants, as the
case may be.”
Rule 9 of the Order 6 provides
for the period of 3s:-
“such publicity as is
oned in Order 6 rule 8 shal shall continue for a period of 30 days from the
date the notices were
posted on the land.”
Rule 11 of the Order 6 reads:-
“If the land the subject
matter of a claim remains undisputed after 30 days referred to in rule 9,
then the presiding
magistrate shall cause to be entered a judgement in the
records of the court in the name of the claimant or claimants, as the
case
may be.”
Rule 12 of the Order 6 reads:-
“Such judgement as is referred
to i 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
advertisements by the party or parties in favour of whom the judgment
has
been entered.”
<
Rule the Order 6 reads:-
“Any party ng to appeal
such judh judgement may do so pursuant to section 22 of the Act.”
<
Rule 14 of the Order 6 reads:-
“If no appeal has been lodged
within thin the time specified in section 22 of the Act then the presiding
magistrate shall
cause the judgement to be registered with the Land Records
Office and at the Supreme Court Registry.”
Rule 15 of the Order 6 reads:-
“If no appeal has been lodged
after 60 days from the delivering of a judgment in a contested land – claim
then the presiding
magistrate shall cause the said judgement to be
registered with the Land Records Office and at the Supreme Court Registry.”
There are no difficulties over
or with the provisions of Rules 9, 11, 13, and 14 of Order 6. The real
difficulties lie
with Rules 12 and 15. The process is clear. In land matters
before the cause is heard by the court, the cause or matter is
notified to
the public. (Rule 8) (step 1). That notice lasts for a period of 30 days
(Rule 9) (step 2). After the period
of 30 days where no person responses to
the notices posted under Rule 8, the matter or cause is undisputed and
without
a need of hearing the presiding magistrate shall cause to be entered
a judgment in favour of the claimant(s). (Rule 11) – (step
3). That is all
there is to that. There is no further need and requirement for the court to
advertise the judgement as
required by Rule 12 and in the manner prescribed
by Rule 8. The matter comes to an end. It is res judicata. The only other
requirement is for the presiding magistrate to cause the judgement to be
registered in accordance with Rule 14. There
is no time limit here for an
undisputed claim to ownership of land.
Where however notices have
been posted (Ru and other persons come fore forward and express their
interests to be joint
as parties that opportunity must be allowed. The
matter or cause is listed for hearing. After hearing judgment is delivered.
Any person therefore who being a party and is aggrieved at the order or
decision has difficulties in lodging his appeal
within 30 days as allowed,
he can lodge an application to seek an extension of time. But it is required
that such application
has to be made within 60 days after the date of the
order or decision a party wishes to appeal against. (Section 22(5) of the
Act)
It is therefore my opinion
that Rule 12 purports to enlarge the time limited for appeals to the Supreme
Court by a further
30 days. It is only the Parliament that can do so by an
amending legislation. Rule 12 was made by the then Chief Justice purporting
to exercise his powers under section 20 of the Act. I rule that Rule 12 is
ultra vires section 22(1) of the Act. Further
I rule that Rule 15 is ultra
vires section 22(1) and (5) of the Act. Accordingly pursuant to section
15(4) of the Interpretation Act [CAP.132] I declare Rules 12 and 15 to be
void and of no effect.
It follows therefort the
appeal of the Appellant must fail. I order that that the appeal be dismissed in
its entirety.
Further the judgment of the Santo/Malo Island Court in Land
Case No.12 of 1997 handed down on 7th July 1999 is hereby
confirmed. I Order that the Judgement be registered in accordance with Rule
14 of Order 6 forthwith.
I further order the Appellant
to pay the Respondent’s costs of and incidental to this matter to be taxed
failing agreement.
PHED at Luganville
this 12th day of March, rch, 2001.
BY THE COURT
OLIVER A. SAKSAK
class="MsoBodyText" align="ign="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/cases/VUSC/2001/18.html
