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Bakokoto v Maseiman [2024] VUSC 369; Land Appeal Case 437 of 2017 (28 November 2024)

Date of Hearing: 23 October 2024

Date of Decision: 28 November 2024

Before: Justice M A MacKenzie

Distribution: Mr. C. Leo for the First Appellant

Second Appellant - in person

Mr. R Tevi for the Third Appellant

Fourth Appellant - in person

Mr.SC Hakwa for the Fifth Appellant

Mr. E. Nalyal for the First Respondent

Second Respondent – in person

Third Respondent – in person

Fourth Respondent – no appearance

Fifth Respondent – no appearance

Sixth Respondent – no appearance

Seventh Respondent – no appearance

Eighth Respondent – no appearance

Ninth Respondent – no appearance

Tenth Respondent – in person

Eleventh Respondent – in person

Twelfth Respondent – no appearance

Thirteenth Respondent – in person

Mr. S. Kalsakau for the Fourteenth Respondent

Mr. R Sugden for the Fifteenth Respondent

Sixteenth Respondent - in person

Seventeenth Respondent – no appearance

DECISION

Introduction

1. On 31 March 2009 the Efate Island Court delivered a judgment in land case no. 3 of 1995. The original claimant was Family Kalpram Cooke Maseiman. When the judgment was delivered there were nineteen (19) counter claimants.
2. The Court found that there are three main customary lands and two overlapping lands: Etefkau/Ewornagir (brown on the map), Eurakot-Eleo (pink on the map), Etomou (blue on the map); and two overlapping lands, and a small part of Epang-Tue (green on the map). The Court then made various ownership declarations, including that Eleo-Eurakot land belongs to the original claimant and descendants of Kalpram Cooke Manseiman.
3. Appeals were filed in the Supreme Court. Currently there are five appellants and seventeen respondents.
4. The appeal has languished. The delays are extraordinary. Fifteen years has now elapsed since the judgment of the Efate Island Court was delivered.
5. On 21 November 2023 Hastings J issued a Minute recording that at the conference on 21 November 2023 jurisdiction was raised as an issue. Jurisdiction was addressed as follows:
   

4. Jurisdiction was raised as an issue. To progress this matter, we need to know whether the appeals were in proper form and were filed within the timeframe permitted by the legislation in place at the time;

5. I have undertaken to issue all parties a minute to which is attached the 5 notices of appeal. That minute will also invite submissions on whether anything in those notices of appeal affect the jurisdiction of this Court to hear the appeal. The submissions will be focused on the issue of jurisdiction and the opportunity to be heard will be given;

6. On 5 December 2023, Hastings J issued a further minute attaching the 5 notices of appeal and invited submissions on whether anything in the notices of appeal affect the jurisdiction of the Supreme Court to hear the appeal. ^[1]
7. The two main issues identified in written submissions and oral argument are:
   

(a) whether the appeals were filed in time;

(b) whether the appeals are competent.

Time limits under s22

8. A right of an appeal can only be found in statute.^[2] There is a right of appeal from an order or decision of an Island Court pursuant to s 22 of the Island Courts Act [CAP 167].
9. Section 22 says:
   

22. Appeals

(1) Any person aggrieved by an order or decision of an island court may within 30 days from the date of such order or decision appeal from it to the Magistrates’ Court.

(2) The court hearing an appeal against a decision of an island court shall appoint two or more assessors knowledgeable in custom to sit with the court.

(3) The court hearing the appeal shall consider the records (if any) relevant to the decision and receive such evidence (if any) and make such inquiries (if any) as it thinks fit.

(4) An appeal made to the Supreme Court under subsection (1) (a) shall be final and no appeal shall lie therefrom to the Court of Appeal.

(5) Notwithstanding the 30-day period specified in subsection (1) the Supreme Court or the Magistrates’ Court, as the case may be, may on application by an appellant grant an extension of such period provided the application therefore is made within 60 days from the date of the order or decision appealed against.

10. Pursuant to s 22 any person aggrieved by an order or decision of an Island Court may appeal the order within 30 days from the date of the order or decision. Under s 22 (5), the 30-day time period specified in s 22 (1) may be extended provided that an application for an extension is made within 60 days from the date of the order or decision appealed against.
11. The Court of Appeal has said that the time limits in s 22 are to be strictly applied: Kalsakau v Jong Hook Hong [2004] VUCA 2, Loparu v Sope [2005] VUCA 4, Rombu v Rasu [2006] VUCA 22 and Numania v Numanien [2019] VUCA 59.
12. The Court of Appeal in Kalsakau v Jong Hook Hong said:
    

“We are of the clear view that strict compliance with the terms of subsections (1) and (5) in relation to an appeal and in relation to an application seeking an extension of time for an appeal is essential. In short, the person aggrieved by an order or decision of the Island Court must appeal within 30 days from the date of such order or decision to the Supreme Court in relation to a matter concerning a dispute as to ownership of land. We consider that the “date of such order or decision” commencing the time frame within which the 30 days for an appeal must be made, commences from the date on which the reasons for the decision duly signed and sealed are made available to the parties. Likewise, the further 30 days period as specified in section 22 (5) of the Act runs from that date. Further any application for grant of an extension of the 30-day period must be made within 60 days. Outside the 60 days no relief can be sought or granted”.

13. As was said in Rombu v Rasu, the time limit in s22 recognizes that it is important to bring finality to disputed land claims and to this end, the Act provides a strict time limit within which any aggrieved party must challenge the decision, and that:

“The language of s.22 does not permit of any exception to the strict time limits which it imposes”

Competence of some of the appeals

14. Mr. Sugden argues that at least one of the appeals is incompetent because it does not contain any grounds of appeal. His submission is that as there are no grounds, there is no appeal, and no argument the appellant can address to the Court. The notice of appeal is a nullity.
15. The starting point is s 22 of the Island Courts Act, which does not refer to the filing of a notice of appeal or grounds of appeal. As was briefly said in Kalsakau v Jong Hook Hong, s 22(1) of the Island Court Act does not require a notice of appeal as such to be filed. However, the Court of Appeal did not need to decide that issue.
16. The lack of a formal requirement in s 22 to file a notice or grounds of appeal may be explained by the fact that lawyers are not entitled to take any part in the proceedings of an Island Court. ^[3]
17. Rule 16.34 of the Civil procedure Rules sets out what an appellant must do if appealing a decision of an Island Court and says:
    

Appeal to the Supreme Court

16.34 (1) This Rule applies to appeals from Island Courts to the Supreme
Court.

(2) The appellant must:

(a) file a Notice of Appeal in the Supreme Court; and
(b) give a copy of the notice to each other party.

(3) Each party must give an address for service of documents to the Supreme Court.

(4) The Island Court must ensure that the notice of the appeal and all supporting documents are given to a judge.

(5) The judge must:

(a) fix a date for Conference 1; and

(b) tell the parties about this.

(6) At Conference 1, the judge:

(a) must appoint 2 or more assessors knowledgeable in custom to sit on the appeal; and

(b) may make any other orders, or give any directions, the judge can make under Part 6.

[NOTE: (i) Part 6 deals with Conferences.

(ii) The Supreme Court must consider the records (if any) relevant to the decision and receive such evidence (if any) and make such inquiries (if any) as it thinks fit; see s.22 of the Island Courts Act (Cap.167).]

18. While it is mandatory under rule 16.34 for an appellant to file a notice of appeal in the Supreme Court, the rule is silent as to what a notice of appeal must contain. There is no express requirement that grounds of appeal must be contained within a notice of appeal or filed within a certain timeframe. This is in contrast to other appeal rules and provisions in Vanuatu.
19. Relevantly, when an appeal from a decision of the Magistrate’s Court is filed in the Supreme Court, rule 16.28 of the CPR expressly provides that the application must set out the grounds of appeal and that it must be in Form 33. Then there are ss 200 and 201 of the Criminal Procedure Code [CAP136] which provide that for a criminal appeal a notice of appeal is to be filed within 14 days and that 14 days thereafter the appellant must lodge a memorandum of appeal setting out the grounds of appeal.
    
20. What constitutes a competent appeal was in issue in James v Regenmal [2014] VUCA 35. In that case, the appellant paid a filing fee for an appeal, but a notice of appeal was not filed. The Court held that the paying of filing fee without more and in particular without the filing of a notice of appeal did not constitute a valid appeal under s 22(1).
21. It is helpful to set out what the Court said:
    

20. We note that although section 22 does not expressly refer to a notice of appeal, it is common practice for an appeal of any kind from a first instance Court to an appellate Court to involve the lodging of a notice of appeal. This of course is because both the appellate Court and the respondent need to know which part or parts of the judgment appealed from are challenged and on what grounds.

21.We note too that rule 16.34 of the Civil Procedure Rules, which governs appeals from Island Courts to the Supreme Court, makes it mandatory for an appellant to file a notice of appeal in the Supreme Court and to give a copy of the notice to each other party together with an address for service. The Island Court is required under rule 16.34 (4) to ensure that the notice of appeal and all supporting documents are given to a Judge who must then fix a date for the first conference. At that conference the Judge must then appoint two or more assessors knowledgeable in custom as required by section 22 (2) of the Act.

22.There is an implication from rule 16.34 that a notice of appeal must be filed both at the Supreme Court and at the Island Court. Though there is no stipulation as to when this must be done in relation to the appeal period, there is a strong implication, coinciding with common sense and practice in relation to other types of appeal, that appealing to the Supreme Court requires the lodging of such a notice of appeal. There is a further implication from section 22 that it is this step which must be taken within the 30, or 60, days referred to in section 22.

23.We conclude that the paying of filing fee without more and in particular without the filing of a notice of appeal does not constitute the making of a valid appeal from the Island Court to the Supreme Court under section 22 (1) (a) of the Act.

22. The purpose of a notice of appeal was also discussed in James v Regenmal. The Court said that both the appellate Court and the respondent need to know which part or parts of the judgment appealed from are challenged and on what grounds. That could be thought to be an indicator that grounds of appeal are required to be contained in a notice of appeal. However, the Court in James v Regenmal was dealing with a different issue and not specifically whether a notice of appeal without grounds renders an appeal incompetent.
23. There is no requirement in rule 16.34 that grounds be included in the notice of appeal or filed within a certain timeframe. If these matters are required by rule 16.34 then the rules could and should have said so. Instead, the scheme of rule 16.34 is that a notice of appeal must be filed and then the Judge must fix a date for a first conference. If it was intended that a failure to include grounds in a notice of appeal or file them within a certain timeframe rendered an appeal incompetent, then the rules should have made that clear.
24. I consider that the difference under the rules between what is required for an appeal from a Magistrate’s Court decision as opposed to what is required for an appeal from an Island Court decision is important. An appeal from a Magistrate’s Court decision must be in a particular form and contain grounds of appeal. By contrast, an appeal from an Island Court decision is not required to be in any particular form and grounds of appeal are not expressly required. Given that rule 16.28 governing Magistrate’s Court appeals expressly requires grounds of appeal to be filed, then it would be wrong to read into rule 16.34 governing Island Court appeals a requirement to file grounds of appeal with a notice of appeal, when not expressly stated. I infer that the distinction under the rules between how an appeal from the Magistrate’s Court is commenced as opposed to the Island Court must have been deliberate.
25. The fact that there is a distinction between what is required to commence an appeal from a Magistrate’s Court decision as compared with an appeal from an Island Court decision, as explained above, together with the fact that parties to an Island Court proceeding are not entitled to legal representation, compels me to the view that grounds of appeal are not required to be included in a notice of appeal and filed within the timeframes prescribed in s 22. Good practice is that grounds of appeal are contained in a notice of appeal, for the reasons discussed in James v Regenmal, but it is not mandatory.
26. I acknowledge that the appeal Court and other parties need to know what is being challenged and on what grounds. But that can be addressed by the Supreme Court at the first conference with directions to file grounds within a certain timeframe, failing which an appeal is likely to be struck out for incompetence. Rule 16.34(6) gives the Court the discretion to make any orders or directions that can be made under Part 6.

The Individual Appeals

The First Appellant (Russel Bakokoto)

27. There are two issues:
    
    • (1) Was the appeal filed in time?
      
    • (2) If so, is the appeal competent?
      

Was the appeal filed within the timeframe prescribed in s 22?

28. Whether or not the appeal was filed in time is not straightforward. The appellant himself said he had filed his notice of appeal and paid the filing fee on 20 April 2009, and that the grounds of appeal were filed on 3 August 2009.^[4] The document dated 3 August 2009 is titled “Notice and Grounds of Appeal”, and was filed by counsel, Mr. Leo.
29. In reviewing the file after the hearing on 23 October 2024, I located what appeared to be a notice of appeal dated 15 April 2009. It does not contain any grounds. There is no indication how the notice was filed, but I infer it was filed as it has a Supreme Court stamp on each page. The document is contained within an Interim Appeal Book filed on 17 October 2019. I issued a Minute to counsel inviting further submissions on this issue and permitting them to review the appeal book at the Registry. Further, there is a copy of a receipt on the file confirming that the filing fee of VT 75,000 was paid by Russel Bakokoto on 20 April 2009.
30. If the document dated 3 August 2009 is the notice of appeal, then it was filed out of time, given the strict timeframes laid down in s 22, as discussed above. But if the notice of appeal is that dated 15 April 2009, then it was filed within the 30 day timeframe.
31. I am satisfied that Mr. Bakokoto did file a notice of appeal on 15 April 2009. He has filed sworn statements saying he had filed a notice of appeal and paid the fee in April 2009. Congruent with his evidence, there is a receipt for the filing fee which was paid by Mr. Bakokoto personally on 20 April 2009. There is also a notice of appeal dated 15 April 2009, stamped with the Supreme Court stamp on each page. It was not filed by a lawyer. The notice of appeal said that grounds were to be filed later.
    

Is the appeal competent?

32. Whether or not the appeal is competent turns on whether a notice of appeal must contain grounds of appeal?
33. The notice of appeal dated 15 April 2009 did not contain grounds of appeal. The grounds of appeal are contained in the document filed on 3 August 2009. In light of the discussion set out at paragraphs 14-26, I consider that the appeal is competent. Grounds of appeal are not required to be filed in the notice of appeal for the reasons discussed above.
    

Second Appellant (Family Marik Kalontan)

34. It is not in dispute that the appeal was filed in time, as the notice of appeal was filed on 28 April 2009.
35. Mr. Sugden, for the fifteenth respondent, Family Kalpram Tuekot raises a jurisdictional point about the appeal against that party. His submission^[5] is that if, on examination of the original application by Family Marick Kalontan it is clear that the Second Appellant was not claiming the land awarded to Family Kalpram Tuekot, the appeal should be dismissed as against Family Kalpram Tuekot leaving them free to deal with the custom rights that were awarded to the family.
36. I make two points:
37. First, in the notice of appeal, one of Family Marick Kalotan’s appeal grounds specifically relates to Family Kalpram Tuekot. The appeal ground is:
    

“8. That the Efate Island Court err in facts and customary law in finding that the Original Claimant (Kalpram Cooke Maseiman), the Fourteenth Counter claimant (Kalapram Matokoale) and the Sixteenth Counter Claimant (Kalpram Tuekot) are the same families originating from one descendant.”

So, as a matter of jurisdiction, one of Family Marick Kalontan’s appeal grounds directly relates to Family Kalpram Tuekot. The merits are a different matter.

38. Second, a point made by Mr. Kalsakau in his written submission is directly relevant to this issue. It was held in Rombu v Family Rasu that once an appeal is validly instituted by one of the parties, the power of the court under s23 is enlivened.
    

“The Island Courts Act makes no provision for cross appeals. We consider it does not do so for the simple reason that a notice of cross appeal by other parties is not necessary. Once an appeal is validly instituted by one of the parties, the power of the Court under s.23 of the Island Courts Act is enlivened. The Court is authorized by s. 23 (a) to " make any such order .................. as the Island Court could have made .......... in such cause or matter". In other words, once the appeal is instituted, the Supreme Court can make whatever order the Island Court could have made, as is appropriate. The other parties to the appeal are able to contend for whatever outcome they think is proper. If on the hearing of the present appeal, the Supreme Court concludes that there should have been a result more favorable to the third or fourth respondent, the Court is empowered under s.23 to reflect that conclusion in its judgment. To achieve such an outcome, formal cross appeals by the respondent are not necessary.”

39. Given the matters set out above, I decline to dismiss the appeal against Family Kalpram Tuekot. In my view, this issue was beyond the parameters set by Hastings J and is best dealt with by clear directions at a conference so that the issues are refined and understood by all parties. It did not require intervention by the Court at a jurisdiction hearing.
    

Third Appellant (Family Hendon Singari)

40. It is not in dispute that the appeal was filed in time, as the notice of appeal was filed on 30 April 2009.
41. The issue raised is whether it is a valid appeal because there are no grounds of appeal contained in the notice. Mr. Sugden submits therefore that the appeal is incompetent. For the reasons set out at paragraphs 14-26, I consider that the appeal is competent.
    

Fourth Appellant (Family Sope Kalmatalu)

42. There are two issues:
    

(a) Was the appeal filed in time?

(b) Whether Family Sope Kalmatalu is an “aggrieved person” under s 22 (1), as they were not a party in land case 3/95.

43. The notice of appeal was filed on 26 March 2010, well outside either the 30 day or the 60-day time limit contained in s22(5). Given that the timeframes are to be strictly applied as noted by the Court of Appeal, and discussed above, the appeal was not filed in time.
44. Therefore, I do not need to consider whether Family Sope Kalmatalu is an aggrieved person.
45. Family Sope Kalmatalu’s appeal is struck out.
    

Fifth Appellant (Family Kalsrap)

46. There are two issues:

(a) Was the appeal filed in time?
(b) Whether Family Kalsrap is an “aggrieved person” under s 22 (1), as they were not a party in land case 3/95.

47. It is note in dispute that the appeal was filed in time, as the notice of appeal was filed on 30 April 2009.
48. Mr. Sugden raised an issue as to whether Family Kalsrap is an aggrieved person under s 22 (1). There is no definition of any “aggrieved person” in the Island Courts Act. The question has been considered by the Supreme Court and the Court of Appeal. However, that question of interpretation has not been definitively determined.
49. In Bangalulu v Malasikoto [2006] VUSC, the Honorable Chief Justice said that s22(1) did not limit the right of appeal of an order/decision of an island court to the parties before the island court, as “any aggrieved person” can appeal against it.
50. In Loparu v Sope, the Court of Appeal made the following obiter statements about the interpretation of “aggrieved person”:
    

“Section 22 (above) sets out a process for appeal subsequent to an Island Court decision. The wording of section 22 does not restrict an appeal to parties in the Island Court hearing but can include “any person aggrieved by an order or decision”. Such an appeal would be to the Supreme Court as the matter concerned a dispute as to ownership of land. The Appellants in this case did not follow the statutory process by appealing within 30 days or by making an application to grant an extension of 30 days period within 60 days referred to in the enactment had they been out of time”.

51. In Rombu v Family Rasu, the Court of Appeal said that the above statements in Loperu v Sope support a wide interpretation:
    

“... It assumes that the expression "any person aggrieved" in s.22 should be widely interpreted to include a person who was not a party to the proceedings in the Island Court. There are statements in the judgment of this Court in Loparu v Sope, CAC No. 26 of 2004, judgment 5 May 2005, which are supportive of the wide interpretation. However, those statements were not essential to the decision in that appeal and should be regarded as obiter dicta. Further it was not necessary to decide that question of interpretation in Kalsakau v Jong Kook Hong [2004] VUCA 2; CAC 30 of 2003 judgment 8 June 2004. It is a question that should be left until it is directly raised and fully argued.”

52. However, the Court does not need to consider whether the Family Kalsrap is an aggrieved person. This is because a review of the Minutes and Orders issued over the years shows that on 24 March 2010 Justice Dawson made an order joining the Family Kalsrap as a party (an appellant). Dawson J recorded in the minute of 24 March 2010 that the application was not opposed.
53. No issue has ever been taken with the direction made 14 and a half years ago, and I decline to revisit it.

Result

54. The appeal filed by the fourth appellant, Family Sope Kalmatalu, is struck out because the appeal was not filed within the strict timeframes set out in s 22 of the Island Courts Act.
55. The appeals filed by the other appellants are competent for the reasons set out in this judgment.
56. Costs are reserved.

Directions

57. Given the extraordinary delays in progressing this appeal, there needs to be a conference to make directions for the appeal. It is of concern that jurisdictional arguments, other that the time limits in s 22, have held up the Court making meaningful progress towards an appeal hearing. The parties have waited long enough for the merits of the appeal to be dealt with.
58. I make the following directions:

(a) The Registrar of the Island Court is to urgently provide to the Supreme Court a list of all assessors to be distributed to counsel and the parties so that any issues or conflicts can be identified in a timely manner.
(b) There is to be a conference at Dumbea at 2pm on 3 March 2025 to set a date for the hearing of the appeal, and to make such directions as may be needed to ensure that at last the appeal can be heard in a timely way.
(c) All parties are to file and serve memoranda by no later than 4pm 17 February 2025 addressing a time estimate for the appeal hearing, any issues about the assessors, and any specific directions sought in order to ensure that the appeal can be heard.

DATED at Port Vila this 28th day of November 2024
BY THE COURT

Justice M A MacKenzie

^[1] At paragraph 3
^[2] See Brysten v Dorsen [1997] VUCA 3 and Kuarangkiri v Kuanan [2024] VUCA 52.

^[3] s27 of the Island Court Act

^[4] sworn statements filed on 15 December 2018 and 31 February 2024

^[5] as set out at paragraph 4 of the submissions filed on 14 February 2024