logo Judiciary of the Republic of Vanuatu

Supreme Court

Civil
34 of 2012
11 Dec 2019
Justice Dudley Aru
Silu Malasikoto
Silas Vatoko, Nakmanu Sambo, Morris Kelly
Mr. F. Loughman and Mr. P. Fiuka for the Claimant; Mr. E. Nalyal for the Defendants

RESERVED JUDGMENT

Introduction

1. The claimant and the defendants are members of the Malasikoto family of Mele village on Efate. The defendants have been managing the affairs of the Malasikoto family in relation to Pangona land for some time. Silu Malasikoto alleges that he is now the chief and duly authorised representative of family Malasikoto. He claims that the defendants have received land rents, premium and consent fees over Pangona land but have not paid or disclosed these funds to family Malasikoto.

2. The claim is for the defendants to account for the monies received. On 20 March 2018 the claimant filed an interlocutory application pursuant rule 18.11 and rule 16.9 seeking judgment and an order to account. The defendants on the other hand filed a cross application seeking orders that the whole proceedings be struck out. Having heard the applications I reserved my decision which I now provide below.

Background

3. In understanding this family dispute one has to start with the declaration of custom ownership of Pangona land by the Efate Island Court (EIC) in Malasikoto v Nakmau [2004] VUICB 7 (Land Case No 1 of 1997). Initially the original claimants were Family Malasikoto. Family Lakeletaua Nakmau and family Elmu Labua Kaltamate Thomas were the first and second counter claimants respectively. Before the proceedings begun both counter claimants applied to be part of the Malasikoto family which the EIC accepted. In its judgment on 22 July 2004 the EIC declared family Malasikoto as the custom owner of Pangona Land and gave secondary rights of use to the defendants’ families The EIC said:-

“….

2. Family Malasikoto hemi true customary landowner blong land ia Pangona.

3. Family Lakelotaua Kalokanue Nakmau mo Family Elmu Kaltmate Thomas oli kat raet long land ia Pangona tu be tufala istap long under long authority blong Family Malsikoto.”

4. Following the declaration, the EIC also made the following orders:-

Order

After long declaration ia kot imekem olgeta orders olsem:

1. Olgeta we oli no patis long land ia Pangona be oli stap kat access or stap mekem ol development long land ia bae oli mas kat permission long Family Malasikoto together wetem family Lakelotaua Kalokanue Nakmau mo Family Elmu Kaltmate Thomas blong oli continue wok long ples ia.

2. Olgeta we oli no patis long land ia Pangona be oli wantem go insaed mo mekem wok long land ia oli mas kat permission long family Malasikoto together wetem family Lakelotaua Kalokanue Nakmau mo Family Elmu Kaltamate Thomas fas taem.

3. Any man we iwantem leasem any graon long Land ia Pangona oli mas negotiate wetem Family Malasikoto we hemi kastom land owner together wetem family Lakelotaua Kalokanue Nakmau mo Family Elmu Kaltmate Thomas we tufala tui kat raet long land ia.”

5. The effect of Orders 1 , 2 and 3 above is that any person seeking to undertake developments or lease lands within Pangona land must obtain permission from all three families; Malasikoto Family together with Family Lakelotaua Nakmau and Family Elmu K. Thomas.

Claimant’s application

6. The application by the claimant was made pursuant to rule 18.11 and 16.9. Two orders are sought. First that judgment be entered against the defendants (under rule 18.11) and second that an order to account be issued against the defendants including other persons, trust companies and commercial banks in Vanuatu which the defendants have dealt with (rule 16.9).

7. The main grounds advanced are that the defendants have failed to comply with various orders issued in these proceedings and secondly that since 2004 the defendants have not accounted for monies received in respect of Pangona land.

8. During oral submissions the application to account pursuant to rule 16.9 was abandoned. It would have been difficult also for the claimant to obtain such orders against other persons, commercial banks and trust companies in general as these entities and individuals are not named and are not parties in this case.

Defendant’s cross application

9. The defendants applied for orders that the whole proceeding be struck out as it is without basis and the claimant was not authorised by family Malasikoto to bring the claim.

Discussions

10. In dealing with the claimant’s application, the orders which he alleges were breached by the defendants are orders which required both parties to file a joint memorandum indicating to the Court what the issues are and if there are pending applications. Nothing was filed. No evidence was filed by the claimant to indicate that they made an effort to have the memorandum filed. The orders were not specific directions to the defendants to do something to progress the matter therefore the application is without substance.

11. On that basis the claimant’s application pursuant to r 18. 11 is also dismissed.

12. That leaves the defendant’s cross application to strike out the claim in its entirety. The claimant has not shown any authority that he is authorised by family Malasikoto to bring the application or the whole proceedings for that matter. He annexes a copy of a certificate of recorded interest registering himself, Toriki Malasikoto and Freddy Malasikoto as the representatives of family Malasikoto.

13. That certificate was challenged in Vatoko v Tamata [2019] VUSC 84. The same parties were involved in that case. Saksak J in quashing that certificate ordered that:-

“All the members and descendants of the Malasikoto family including those from the Taea Family, Vatoko Family, Sambo Family and Family Elmu Thomas Kaltamate in conjunction with the Office of the National Co ordinator, be required to arrange a meeting for all the members of these families in accordance with section 6H of the Land Reform Act, not later than 29th July 2019.”

14. On appeal in Malasikoto v Vatoko [2019] VUCA 65, Mr Silu Malasikoto’s appeal was dismissed. The Court of Appeal in dismissing the appeal said :-

“It follows from what is said in this judgment that until new representatives are appointed at a meeting properly held under s.6H the identity of the representatives of the custom owners of the Pangona Land are not known, and no new green certificate should issue.”

Result

15. In line with the Court of appeal decision, the claim in this proceeding cannot be sustained. There is no known representative of custom owners of Pangona land until a meeting as directed by Saksak J is held.

Conclusion

16. The cross application is granted and the amended claim is hereby struck out. I make no orders as to costs.

DATED at Port Vila this 11th day of December, 2019

BY THE COURT

………………………
D. Aru
Judge