Kalpoi v Sope [2004] VUSC 33; Civil Case 053 of 2004 (25 November 2004)

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

CIVIL CASE No. 53 of 2004

BETWEEN:

KALRAN KALPOI
Claimant

AND:

THOMAS SOPE, KIT SOPE, KALSAVE SOPE, BARPAR TALEO, PATAS PATAN, KALTAMAT PATAN, KALOSIK PATAN, JOHN PATAS
Defendants

Mr. George Nakou for the Claimant
Mr. Ishmael Kalsakau for the Defendants

ORDER

1. This claim is struck out.
   
2. Costs of Vatu 5,000 for the Defendants.
   

REASONS

This is a claim for judicial review. The claim is purported to be issued under Part 17 – Judicial Review of the Civil Rules. The claim seeks for the following Orders:

1. A declaration that the Efate Island Court declaration of October 1, 2003 in relation to a part of land, is of no effect.
   
2. Orders that the Presiding Magistrate is refrained from causing the Efate Island Court Judgment of December 1, 2003 to be registered at the Supreme Court Registry and the Land Records Office.
   
3. Orders that the Director of Land Records Office and the Acting Chief Registrar be restrained from registering the said Judgment if the Presiding Magistrate has already caused the Island Court Judgment to be registered.
   
4. Orders that the Respondents be restrained from executing or dealing with the land coloured orange on the sworn statement dated March 16, 2004 of the Applicant in any way until this application has be determined by the Court.
   
5. Orders that the Respondent be restrained from intimidating, threatening, assaulting representatives, family members of the Applicants and also not to cause any damage to the existing garden crops, coconut trees, residence until this application is heard and determined by the Supreme Court of Vanuatu.
   
6. Further Orders as the Court thinks fit.
   
7. The grounds are set out therein.
   

The Respondents filed a response to the claim and say that the Applicant had no locus standi to make this application for judicial review. The particulars of the response are set out therein.

In the conference hearing of 25 November 2004, I consider the papers filed in the proceedings, and hear both counsel, I am not satisfied that there is an arguable case. The claimant is not directly affected a s he is a witness but not a party in the decision of the Efate Island Court of 1 October 2003 which is here purported to be reviewed.

The Defendants/Respondents in the present case are not proper Defendants/ Respondents for the purpose of a claim for judicial review. It is regrettable but the claim is ill-conceived. There is other remedy that can resolve the matter fully and directly. The judicial review claim is made against the DECISION of the public authorities or Tribunal or person or body having the authority to issue:

• A declaration about an enactment; or
  
• A mandatory order, a prohibiting order or a quashing order about a decision. Rule 17.4(1)(a), (b) of the Civil Rules of 2002.
  

Rule 17.4(2) provides:

The claim must name as Defendant:

(a) For a declaration, the Attorney-General;

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

Although Mr. George Nakou applies to add other claimants, the application will not change or cure the fundamental misconception of the judicial review claim here. The Respondents in the present case are not proper Respondents. The Attorney-General is not named as the Respondent although a declaration is sought against a Judgment of the Efate Island Court dated October 1, 2003.

These are the reasons for the striking out Orders of 25 November 2004.

Dated at Port-Vila this 25^th day of November 2004

BY THE COURT

Vincent LUNABEK
Chief Justice