Turabue v Molitalasia [2006] VUSC 14; Land Appeal Case 001 of 2004 (1 March 2006)

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

Land Appeal Case No. 01 of 2004

BETWEEN:

ELDA TURABUE
Appellant

AND:

JIF MOLITALASIA
First Respondent

AND:

MR HARRY BOVAVUN
Second Respondent

AND:

MR MAURICE TARI
Third Respondent

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Richard Kalses for the Appellant – Not appearing
Mr Hillary Toa for First Respondent
Mr Saling Stephens for Second Respondent
Mr Felix L. Kabini for Third Respondent

1st March 2006.

RULING

Mr Stephens applies today for orders dismissing the Appellant’s appeal on purely legal grounds as follows:-

1. That the Appellant has failed to file and serve Appeal Books in accordance with the Direction Orders of the Court dated 31st January 2006.
   
2. The Appellant filed his appeal three (3) months later after the decision of the Island Court was made thus being outside the 30 days and 60 days period allowed under section 22 of the Island Courts Act CAP. 167.
   

Mr Stephens submits the case of Kalran Loparu & Others vs. Thomas Sope & Others as the authority for strict compliance with the appeal periods required by Section 22.

Mr Toa and Mr Kabini both support the application. Mr Kabini however goes further to ask that the Court make a declaration that the Third Respondent is the custom owner of Arona Land.

Upon the materials available before me I am satisfied that the Appellant has failed to file the Appeal Books as directed. The Appellant was directed to file and serve Appeal Books first on 10th March 2005, then on 9th June 2005 and again on 5th August 2005. The Orders were re-issued on 1st November 2005 and then finally on 31st January 2006. Those Orders clearly preceded the issuance of Practice Direction No. 1 of 2006 issued by the Chief Justice on 17th February 2006. The Practice Direction cannot therefore be used as an excuse by Mr Kalses to seek further adjournment for another three (3) months as clearly evident from his letter of 27th February 2006. The Appellant’s failure to file Appeal Books indicate a lack of prosecution of his appeal. Secondly I accept that it is trite law that persons aggrieved by any order or decision of any Island Court must appeal within the periods provided by section 22 of the Act. This appeal is clearly out of time.

None of the respondents have applied for leave to file cross-appeals.

Under those circumstances I am satisfied that the application is proper and accordingly I rule and order as follows:-

(1) The appellant’s appeal be and is hereby dismissed in its entirety.

(2) The declaration sought by the Third Respondent be refused.

(3) The Orders of the Court dated 18th March and 19th April 2005 issued in relation to restraining parties from doing certain things, are hereby vacated.

(4) The consequential effect of Order 1 above is that the decision and orders of the Island Court stand and remain unchanged.

(5) The Appellant will pay all the Respondents’ costs of and incidental to this proceeding after 28 days of service of Bills or Memorandum of costs, failing which the matter be brought to the Court for its determination.

DATED at Luganville this 1st day of March, 2006.

BY THE COURT

OLIVER A. SAKSAK

Judge