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Toara v Simbolo [1999] VUCA 12; Civil Appeal Case 11 of 1998 (7 October 1999)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL APPEAL CASE No.11 OF 1998

BETW>BETWEEN:

MR. API TOARA
of PO Box 437, Port Vila, Efate in the Republic of Vanuatu.
Appellant

AND:

MR KALO SIMBOLO
of PO Box 173, Port Vila, Efate in the Republic of Vanuatu.
Respondent

Coram: Acting Chief Justice Vincent Lunabek;
Justice Bruce Robertson;
Justice John von Doussa;
Justice Daniel Fatiap>

Counsel: Mr. Hurley for the Appellant;
Mr. Kalsakau for the Respondent

JUDGMENT

Turt was advised late yate yesterday (and for that we are grateful) that the negotiations which we had encouraged a week ago had come to fruition and the parties had reached the view that the appropriate course was for the subject matter of this dispute to be retried in the Supreme Court.

When the Court convened this morning there was placed before us a Consent Orders seeking:-

1. That the judgment dated 1 October 1998 by Mr. Justice Oliver A. Saksak in Supreme Court Civil Case No. 152 of 1996, be and is hereby vacated.
2. The Supreme Court Civil Case No. 152 of 1996 be listed for retrial by the Chief Registrar before a Judge of the Supreme Court, other than Mr. Justice Saksak, on the first available dates with an estimated hearing time of 2 days.
3. That costs be reserved.

The Court was concerned that there should not be an impression that parties could simply without further explanation expect an Appellate Court to set aside a judgment in the Court below without first satisfying the Court that there were good and proper reasons for doing so.

The threshold which needs to be met when there are competent and experienced counsel advising on each side need not be particularly high. However the Court was concerned there should be identified for it the matters which had exercised counsel in reaching their judgment. It of course goes without saying that the Court itself during recent days have turned attention to various matters which are raised in the appeal book.

Mr. Hurley (without an opportunity to prepare to answer the issues) has identified three fundamental matters which have been of the heart of the discussions between counsel.

First, it is contended that there is a problem about the finding that there was not an intention to create legal relations. The appellant’s argument is that on the pleadings themselves and on the basis of the testimony which was given at trial there is the clearest evidence that there was an intention to create legal relation between these two persons. Mr. Hurley says that the point is covered by decisions of the former Chief Justice d’Imecourt and the principle has also been applied by the former Justice Matas Kelekele.

Secondly, it is contended that in support of the appellant’s arguments that he had paid money and made improvement there was ample exhibits evidence available which the Judge appears not to have given proper or sufficient weight to.

Thirdly, it is contended that there was a finding made that many of the claims advanced by the appellant related to expenditures unrelated to the issues in the case. It is argued that the findings of them being unrelated were made in breach of the principles of cases like Brown and Dunn (1894) 6 R. 67 without the appellant being challenged on his assertion and without any opportunity for him to comment thereof.

Mr. Kalsakau for the respondent in agreeing to this course of action does so on the basis that it is totally without prejudice to his client’s ability to argue that contrary conclusions should be reached at the retrial. He has simply indicated the view that if this matter were heard then it is inevitable in counsel judgment that the Court for these and other interelated reasons would reach the view that there had to be a retrial.

The Court is satisfied that these are proper issues to be raised and that the assessment of counsel is in the circumstances a reasonable one.

We are in those narrow circumstances willing to agree to the joint application for Consent Orders. It would be wrong to put the parties to the time and trouble (and one does not overlook the expense) of an appeal hearing in which there is an inevitable conclusion.

Accordingly the Court make the Orders noted above. The matter will be remitted to the Supreme Court accordingly.

Dated at Port Vila, this 07^th day of October, 1999.

BY THE COURT

Vincent Lunabek A.C.J.
Bruce Robertson J.
John. W. von Doussa J.
Daniel Fatiaki J.