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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL CASE NO. 183 of 2006
BETWEEN:
IFIRA TRUSTEES LIMITED
of Port Vila, Efate
Claimant
AND:
KALPOKOR KALSAKAU, YOAN KALSAKAU, EPHRAIM KALSAKAU,
SERETANGI KALSAKAU, JOSEPH KALSAKAU, IOAN KALASAKAU,
STEPHEN KALSAKAU and JOSHUA KALSAKAU
First Defendants
AND:
THE GOVERNMENT OF VANUATU
Second Defendant
Mr James Tari Counsel for the Claimant
Mr Edward Nalayal Counsel for the 1st Defendants
Mr Tom Joe Botleng Counsel for the 2nd Defendant
Date of Hearing: 14 December 2007
Date of Oral Judgment: 14 December 2007
Date for Publication of Reasons for Judgement: 7 March 2008
REASONS FOR ORAL JUDGMENT
On 9 October 2006, the Claimant filed a Supreme Court Claim against the First and Second Defendants. The Claimant claims:
The grounds of the claim are contained in the claim. One of such grounds is that on or about 1996, Family Tulangi lodged in the Efate Island Court and registered as Land Case No. 5 of 1996 over those lands at Malapoa Peninsular. On or about May 2005, the Efate Island Court transferred Land Case No. 5 of 1996 to the Land Tribunal for determination of ownership. On or about the 2nd of March 2006, the Supreme Court in Civil Case No. 116 of 2005 and Civil Case No 154 of 2005 confirmed that there is enough evidence that the land at Malapoa is still in dispute.
The First Defendant in their defence admit that the land claim No. 5 of 1996 was lodged in the Efate Island Court by Family Tulangi, but they deny that the claim is over all those lands at Malapoa Peninsula. They say the Land claimed by Family Tualangi is over a specific land comprised in Leasehold title 12/0911/116 which is a separate and excluded from the land comprised in Leasehold title 12/0911/332. The First defendants admitted that the Supreme Court ruled that Land at Malapoa is still in dispute, but they say that the Court did not rule that land comprised in leasehold title 12/0911/332 is in dispute.
The Second Defendant in their defence contended that save that the Efate Island Court transferred the Land Case No. 05 of 1996 to the Land Tribunal in 2005, they say that it is in respect of a different land not the subject of the present proceedings.
From the outset, it is then apparent that before the Court can proceed to hear and determine the Claimant’s claim in Civil case No. 183 of 2006, a factual preliminary question must first be answered.
Preliminary Factual question
That question is as follows: whether or not the Leasehold Title 12/0911/332 is within the land claimed by Family Tulangi in 1996 known as Leasehold Title 12/0911/116.
The Court proceeds then with the preliminary question. If the answer to the question is in the negative, that must put an end to Civil Case No. 183 of 2006.If the answer to the question is in the positive, the Court must hear and determine the Claimant’s claim in Civil Case No. 183 of 2006.
Evidence of the Claimant on the factual issue.
Mr Barry Tulangi filed a sworn statement in support of the claimant’s claim. In his evidence, he says that he is the representative of family Tulangi. He says that on or about 30 October 1996 they paid a registration fee and lodged a land claim in the Efate Island Court. He says Family Tulangi is the original Land Claimant. He says the Land case was registered in the Efate Island Court under Land Case no. 5 of 1996. He says when Family Tulangi filed their claim in 1996 they include with the Claim a Map exhibiting the boundary of the land they claimed.
He annexes the map to his sworn statement which is marked "B.T.3".
He says Land Case No. 5 of 1996 is over the land at Malapoa Peninsular and that Leasehold Title 12/0911/332 is located in the boundary of Family Tulangi claim in Land Case No. 5 of 1996.
Mr Barry Tulangi is cross examined by counsel for the First Defendants, Mr Edward Nalyal. He was asked if the Map exhibited and Mark "BT3" to his sworn statement is the Map he attached to his land Claim lodged in the Island Court in 1996 and transferred to the Custom Land Tribunal.
He answered yes. He says he did not draw the Map. Land Survey did. He was asked more that three (3) times whether the map exhibited to his sworn statement in support of his claim and marked "BT3" is the original map showing the boundaries of the land he claimed. He replied yes on these occasions.
He was questioned again about the names of the places he put on his map. He had difficulty in answering these questions. He says he had a book. The names of places are in his book. He wrote the names in his book. He left his book at home.
He then admitted that he had a different map. It was again put to him that the map exhibited to his sworn statement and marked"BT3" is not the original map which was attached to Family Tulangi Land Claim in Land Case No. 5 of 1996 which was then transferred to the Customary Land Tribunal in 2005. He says yes he agrees that the map attached to Family Tulangi Land Claim in 1996 is a different map.
He said he was the one who lodged the land claim on behalf of Family Tulangi and the claim contained just the history of Malapoa but not Family Tulangi. He also admitted he remembered about letter he wrote to object to kalsakau Makao dated 18 August 1996 to get a lease on a land located at Malapoa.
He admitted that he wrote the letter to object to Lease over the land title 12/0911/116 to Doctor Makau Kalsakau.
He admitted that the Land Claim he had lodged in the Efate Island Court in 1996 which was then transferred to the Land Tribunal in 2005 is about Land Leasehold title 12/0911/116.
Evidence of the First and Second Defendants On the factual question.
Mr Jerry Boe and Mr Yoan Kalsakau filed each a sworn statement in support of the first defendants’ defence. Mr Jean Marc Pierre, Director of Lands Department filed a sworn statement in support of the Second Defendant’s defence. However, the Second Defendant did not take any active role in the hearing of the Preliminary question and did not call any witness.
Although, counsel for the First Defendants, Mr Edward Nalyal attempted to call Mr Jerry Boe to give evidence of the fact that he was the presiding magistrate in Land Case No. 5 of 1996 in the Efate Court, and for him to give evidence of what happened before the Efate Island Court, the Court refuses to accept such a practice. Mr Jerry Boe was the former Presiding Magistrate in the Efate Island Court in Land Case No. 5 of 1996 the subject of the proceedings.
The rational for the refusal is based on fundamental principle of public policy, judicial independence and common sense. A Court Order is a public document. Courts must take judicial notice of it. The Court files records include hand written notes of the evidence and of the proceedings. A former Magistrate or Judge is not competent to provide evidence of their existence or correctness. Those records are the court records of a Court file. To ascertain their existence or veracity, the clerk of the Island Court is the authorised person to give such evidence.
Mr Yoan Kalsakau gave evidence for the first defendants. He filed a sworn statement on 13 December 2007. In his evidence, he says that he lives at Tagabe area, Port Vila. He attended the office of the Efate Island Court and obtained copies of the Court records and orders in respect to the land Case No. 5 of 1996. These court records include, among other documents, the order transferring the land case from the Efate Island Court to the land Tribunal in 2005. He says in his statement that Family Tulangi have no claim and they have no Family history. He stated that all the maps that family Tulangi purports to show the land they are disputing are recent maps produced in 2005.
He states that the maps titled Annex 1 (refer to annexure as "YK2") which show lease titles 12/0911/332 and 12/0911/334 are Family Kalsakau’s map with the two (2) Leases Family Kalsakau registered in 2006. He says the map attached to Barry Tulangi’s statement is not a map that was originally lodged with family Tulangi’s claim in 1996.
He provided a copy of a survey plan he obtained from the survey Department of the Government on 13 December 2007, showing the location of Land Lease Title No. 12/0911/332.
He further states that the Judgement of the Supreme Court dated 3 October 2006 confirmed that family kalsakau followed all the steps required to obtained Lease Title 12/0911/332. He annexed with his statement and mark " YK4" a copy of a judgment of the Joint Court of the New Hebrides of 5 October 1929 which states that his great great grandfather Maretaora was the owner of the Malapoa Point Land. He provided also and marked "YK5" a copy of Lease over Malapoa Native Reserve (or Malapoa Point) which was entered into between Family Kalsakau and one Pierre Jean Marie Bourgeois on 28 April 1972 which he says confirms family Kalsakau’s ownership of Malapoa point land.
Mr Yoan Kalsakau was cross-examined by Mr James Tari, counsel for the Claimant. It was a short cross-examination. He answered to 4 specific questions put to him:
Q. Show from page 13 blong statement blong you we you annexe ol documents. You save confirm se Land Case Title 12/0911/332 hemi stap outside long map ia
A. Yes
Q. You go long page 14. You luk long 1 map long page ia. You save confirmem sipos Lease Title 12/0911/332 hemi stap long map ia.
A. Yes
FACT FINDINGS
I make mo findings on the customary ownership of the Malapoa Point or Malapoa Penisula or Malapoa Native Reserve because a declaration of customary ownership is not the remedy sought in this proceedings. Further this Court is not competent in its original jurisdiction to make such a finding of customary ownership save on its appellate jurisdiction from a Land Appeal Proceeding.
The findings I make are only relevant to the determination of the Preliminary question the court is requested with the consent of the parties to answer.
I find that Barry Tulangi’s evidence cannot be relied upon. Barry Tulangi is not a creditworthy witness. I must reject his evidence.
I find that witness Yoan Kalsakau is a trustworthy witness. I believe and accept his evidence that Land Lease Title 12/0911/332 is different from Land Lease Title 12/0911/116.
I find that the Land claim lodged by Mr Barry Tulangi on behalf of Family Tulangi in the Efate Island Court in 1996 which was then transferred to Land Tribunal in 2005, was the land the subject of land Lease Title 12/0911/116.
I find that the Land the subject of land Title 12/0911/116 is subject to a dispute.
I find that the Land Lease Title 12/0911/332 is not within the land claimed by Family Tulangi in 1996 the subject of Land Leasehold Title 12/0911/116.
My answer to the preliminary question is in the negative: No. The Land Lease Title 12/0911/332 is not within the land Lease titile 12/0911/116. For the reasons set above, the Court makes the following Orders:
1. The Supreme Court claim filed by the Claimant, Ifira Trustees Limited on 9 October 2006, in Civil Case No. 183 of 2006 is hereby dismissed.
2. The First and Second Defendants are entitled to their costs against the Claimant.
3. The Costs awarded in Order 3 above shall be agreed If not assessed and determined by the Court in accordance with the rules.
DATED at Port Vila this 7 March 2008
BY THE COURT
Vincent LUNABEK
Chief Justice
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URL: http://www.paclii.org/vu/cases/VUSC/2008/26.html