Family Kalontano v Duruaki Council of Chiefs [2002] VUSC 32; Constitutional Case 040 of 2002 (24 May 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

CONST. CASE No.40 2002

BETWEEN:

FAMILY KALONTANO

Petitioner

AND:

DURUAKI COUNCIL OF CHIEFS

First Respondent

AND:

CHIEF F. MALESU

Second Respondent

AND:

CHIEF K. TARIPOAMARA

Third Respondent

AND:

CHIEF A. MARIMASOE

Fourth Respondent

AND:

CHIEF T. MATAKORMARATA

Fifth Respondent

Coram: Chief Justice Vincent Lunabek

Counsel: Kami Aromalo in person representing the Petitioner

Mr. Kiel Loughman for the Respondents

DECISION

This is a Constitutional Petition. The Petitioner is Kammy Aromalo who petitioned the Court on behalf of Family Kalontano (Petitioner) against the Respondents: Duruaki Council of Chiefs and other individual chiefs.

The Petitioner alleges that his rights under Article 5(1)(d), (g) and (k) of the Constitution have been breached by the Respondents.

The Petitioner says that Family Kalontano (Petitioner) is disputing custom chief title with another family “Family Lieth”.

The Petitioner refers the dispute over the custom title of chief to the First Respondent to resolve it.

It is common ground that the title of custom chief has not yet been determined by the First Respondent.

It is in the process of attempting to meet and consider the issue of the dispute that the Petitioner alleged that some of his rights guaranteed under Article 5(1)(d), (g) and (k) are breached by the Respondents and, thus, the filing of this Petition before the Supreme Court.

The Respondents file an application to strike out the Petition on the grounds as set out in the defence dated 18 April 2002.

I have had opportunity to consider arguments and submissions of the Petitioner and the Respondents and I come to the conclusion that the Petition must be struck out for the following reasons:

1. It is premature.

2. The dispute has yet to be determined by the First Respondent between the two disputing parties.

3. The Petitioner is not prejudiced. There is no breach of his rights guaranteed under Article 5 of the Constitution.

4. The Petitioner has yet to exercise his rights to put his case before the appropriate customary institution having the jurisdiction to deal with the matter in dispute.

5. The last but not the least reason is that the Petition has no cause of action. The allegations of constitutional rights breach are levelled against individual persons. There is no legal remedy available to the Petitioner by way of constitutional petition such as in the present case. This is the substantive reason and on its own can dispose of the entire case.

UPON the basis of the above, the Court makes the following Orders and Directions:

1. THAT the Petition is struck out.

2. THAT the disputing parties are ordered and directed that the dispute be referred to the village level first and/or the dispute be dealt with pursuant to the structure as outlined by the Respondents’ in their affidavits.

3. THAT the Petitioner is ordered to pay the costs to the Respondents which costs are assessed at 40,000 VT.

4. THAT the Petitioner is directed to pay the costs of Vatu 40,000 within 4 months as from the date of this Order. The payments be by way of instalments of Vatu 10,000 each month commencing at end of May 2002 until full payment.

DATED at PORT-VILA, this 24^th DAY of MAY, 2002

BY THE COURT

Vincent LUNABEK

Chief Justice