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The Appeal Court judgement on ownership of Bouffa and Bellevue land on Efate

The Appeal Court judgement on ownership of Bouffa and Bellevue land on Efate
The Appeal Court judgement on ownership of Bouffa and Bellevue land on Efate
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The Court of Appeal has dismissed the appeal brought against an order of the Supreme Court that struck out the appellants’ application to extend time to appeal a decision of the Efate Island Court (EIC) in Land Case No. 1 of 1995 (LC1/95) concerning the custom ownership of the Bouffa and Bellevue land in Efate.
The parties to LC1/95 were the present respondents, namely Kaluaat Thomas, Family Kalmermer, Naflak Kram Naoi, Kalmetabil Namak Kalmet, Family Salsal Lauto, Family Kalman Kiri, Kalontas Kalfabun, Akau Kaltamat, Family Kalwas Lamlamru and Family Kalwatong. The appellants were Norris Kalmet and Kalkot Kaltatak.
On 15th September 2003, the EIC made orders staying LC1/95 until further notice, and directed that a reconciliation meeting be held within two months. Later the parties signed a document headed “Judgement by Consent” which recorded an agreement reached pursuant to the directed reconciliation to resolve all the issues between them. By the terms of this agreement the parties agreed that they are each equally declared custom owners of the Bouffa/Bellevue land, and that the income and benefits of the land would be shared equally between the declared custom owners. The agreement contained a detailed description of the land. This document without more only records the agreement reached between the parties. In law it has no force as a declaration of custom ownership, and it is not a document that could be registered as a recorded interest in land under the Custom Land Management Act 2012 (the CLMA).
The Court of Appeal considered that, for an agreement which the parties intend to operate as a consent judgement to obtain the status of a court judgement, the agreement must first be approved by a property constituted court acting within its jurisdiction and that, concent judgements are commonly obtained by having an agreement in the form of the document, which the parties have signed in LC1/95, countersigned by the presiding member of the court, and later the court has approved it the agreement in this way becomes recorded as a judgement of the court.
In an apparent endeavour to achieve this outcome on 23rd December 2010 the parties to LC1/95 appeared before Chief Magistrate Felix Stephen sitting alone as the EIC. The Chief Magistrate made the following orders:
“Having heard all parties, through their respective authorised representatives, and having also read the consent judgement signed by the parties and filed in the Efate Island Court on the 19th of October 2010, I hereby make the following as orders only relating to the management of the matter:
1. That the land case 01 of 1995 is discontinued upon the consent application of all parties in the dispute;
2. That there is no longer any dispute pending before the Efate Island Court relating to the Bouffa/Bellevue land as described and shown in the map attached to the consent document;
3. That only the parties named in this proceeding be allowed to enter into agreements with each other with regards to the use, and enjoyment of the said land including sharing of any proceeds of any leases, subleases, easements, royalties and any other financial benefits derived from the said land;
4. Each party bear their own costs.”
“It seems that this order has been treated by the Department of Lands, Survey and Records and by the National Co-ordinator under the CLMA as a Judgement by Consent document extends into land beyond the boundaries of the land the subject of LC1/95, and into land which they claimed to be their custom land,” the Court of Appeal noted.
One of the appellants’ arguments was that they say they only recently became aware of the order made on 23rd December 2010. Their concern is that the land area described in the Judgement by Consent document extends into land beyond the boundaries of the land the subject of LC1/95, and into land which they claimed to be their custom land.
The appellants then wished to challenge the claim by the respondents to custom ownership of land extending beyond the limits of the land claimed in LC1/95. Apparently there have been several different sets of proceeding filed in the Supreme Court by the appellants to seek a remedy, but the Court of Appeal was only concerned with the application made by them to appeal against to order made on 23rd December 2010.

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