IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 25 of 2003.

BETWEEN:

JOHN ENOCK, KALSA MAEL, ALIAN CHARLIE and OTHERS
Appellants

AND:

CHIEF ALBEA DAVID, PERSI DAVID, MARK BERNIE HOMU, HUGGAI BRUCE, MAEL ERR & NORMAN SAMUEL
Respondent

Coram: Hon. Justice Robertson
Hon. Justice von Doussa
Hon. Justice Saksak
Hon. Justice Treston

Counsel: Mr. George Nakou for the appellants
Mr. K. Mataskelekele for the respondents

Hearing Date: 27th October 2003.
Judgment Date: 7th November 2003.

MEMORANDUM

This memorandum is to record the circumstances leading to the disposition of this appeal by consent.

The appeal was listed before the Court of Appeal on Monday 27th October 2003 for the purpose of discussing the issues raised by the Notice of Appeal, and the future course of the hearing. It seemed to the Court on reading the papers that the issues to be canvassed on the appeal, although complex and contentious, were largely academic in the sense that resolution of the issues would not address the substantive matters in dispute between the parties. On the contrary, if the appeal were to proceed there would be delay whilst the respondents prepared written submissions, and the parties would incur considerable costs for little or no practical purpose.

In discussion with counsel, the Court confirmed details of the dispute and the course of the proceedings in the Courts below. The nature of the dispute is sufficiently identified by reference to the pleadings in the proceedings commenced in the Magistrates Court on the 7th May 2003 in Civil Case No. 62 of 2003. The present appellants (the claimants) are residents of land on one side of the river at Mele Maat, Efate. The respondents are members of the Mele Council of Chiefs and residents of the Mele village. The appellants alleged that they inherited the land from their ancestors, and that they have been in possession and occupation of the land, using it for cultivation, from 1970. On 19th March 2003 the respondents passed a resolution which purports to give them the right to interfere with the appellants' possession of the land and fixtures, including the power to evict people. 

In the Magistrates Court proceedings the appellant sought declarations that the resolution of 19th March 2003 is null and void, and wrongly prevented the appellants from using their land. A claim for legal costs and expenses was also included, but those costs and expenses, insofar as they might he recoverable, would form part of the costs of the action and do not give raise to a separate cause of action. 

Before the issue of the proceedings in the Magistrates Court, the appellants had obtained an interim order restraining the respondents from acting on the resolution. On 23rd June 2003 two orders were made in the Magistrates Court. The first order was made at the request of the respondents to restraint the appellants operating a brick making plant and a cooperative store. The second order made at the request of the appellants stayed the first order made earlier that day. All these orders were made for the purpose of maintaining the existing positions of the parties until the substantive claim raised in the proceedings was heard and determined.

The appellants then appealed to the Supreme Court against the first order made on 23rd June 2003.

The appeal first came before the learned Chief Justice on 1st July 2003. On that occasion his Lordship made the orders which are now subject to this appeal. In particular his Lordship ordered:-

"1.	That Magistrates Civil Case No. 62 of 2003 shall be transferred from the Magistrates Court Registry to the Supreme Court Registry at Port Vila as a matter of urgency.

2.	All Orders issued by the Magistrates Court on 11th April 2003 and 23rd June are vacated and/or set aside.

3.	The following interim regime mechanism is set in place until the final determination of the substantive action. 

(a)	The decision of the Mele Maat custom village Court of 19th March 2003 is suspended pending final determination of the substantive matter before the Court. 

(b)	The Cooperative store "NAARTOUVUSIEN" and the brick making business trading under "MINOLHATES ITE" project shall operate until further Order of the Court. 

(c)	No new development and buildings are to be erected at the other side of the river of Mele Maat until further order of the Court. 

4.	The pleadings, namely: Statement of Claim, Defence and Counterclaim filed and service in the Magistrates Courts are to be brought forward before the Supreme Court. 

His Lordship also made consequential orders giving directions for the future conduct of the proceedings in the Supreme Court. 

At a further hearing before the Chief Justice on 18th July 2003 his Lordship made orders for costs and enforcement relating to the costs incurred in the Magistrates Court and the Supreme Court to that date. One quarter of those costs were awarded personally against the appellants' counsel on the ground that his Lordship considered that the Magistrates Court lacked jurisdiction to hear the proceedings.

The detailed written submissions of the appellants in this Court contend that the Magistrates Court did have jurisdiction.

The appellants contend that the Chief Justice reached the contrary conclusion because he considered the appellants pleadings made a claim for judicial review covered by Rule 17 of the Civil Procedure Rules No. 49 of 2002, and a claim for enforcement of constitutional rights under Article 5 of the Constitution. The appellants' understanding that these were the reasons behind the orders of the Chief Justice may be based on the following preamble included in the orders of 1st July 2003:

"UPON being further informed that the dispute between the parties is likely to raise/involve constitutional right breaches of the parties and their determination by that Court;

AND UPON considering that the case as it stands before the Magistrates Court is filed and dealt with by a Court which has no jurisdiction to hear a claim/application for judicial review and constitutional rights breaches …" 

The appellants contend that the Magistrates Court had jurisdiction because they allege that the decision of the Mele Council of Chiefs is invalid on general law grounds quite apart from both fundamental rights arising under the Constitution and public administrative law principles that govern judicial review. The written submissions in this Court from the appellants appear to raise the following questions for the decision of the Court of Appeal:

1.	Whether by challenging the decision of the Mele Council of Chiefs the appellants are seeking judicial review with the meaning of Part 17 of the Civil Procedure Rules No. 49 of 2002, and if so whether Rule 17 gives exclusive jurisdiction over judicial review matters to the Supreme Court;

2.	Whether the appellants' claim includes a claim for protection of fundamental rights pursuant to Article 5 of the Constitution, and in particular a claim under that Article for the protection of freedom of movement, and protection for the privacy of the appellants' homes and other property against unjust depravation.

If the orders of the Chief Justice were solely based on the grounds asserted by the appellants, it may well be that the answers to both these questions would be in the negative. Nevertheless it seemed to us that the outcome of the appeal could not achieve what the appellants were seeking. The appellants were asking this Court to send the matter back to the Magistrates Court. This Court would have no jurisdiction to do this as the matter has now been placed before the Supreme Court by the appellants in a new action, Civil Case No. 114 of 2003. It is not to the point that they may have done this only because they understood the order of the Chief Justice required them to do so.

In these circumstances the Court urged the parties to seek a quick practical outcome to the appeal, and suggested that the respondents consent to the appeal against the costs order being allowed, and to consequential orders that would allow the matter to proceed expeditiously to trial in the Supreme Court. The parties agreed to follow this course.

The correctness of the costs order against the appellants' counsel must be treated as very much secondary to the position of the appellants who are anxious to have their dispute with the respondents determined as soon as possible. The question of costs of the proceedings to date, including the costs of this appeal and the personal liability of counsel for costs can be revisited and sorted out after the appellants' dispute with the respondents has been decided.

On this basis the orders set out at the end of this Memorandum were made by consent.

We have so far discussed this matter on the basis that the appellants and their counsel correctly identified in their written submissions the reasons why the Chief Justice made the orders which he did. On our reading of the pleadings in the Magistrates Court we think it is probable that the written submissions do not reflect the central reason why the Chief Justice held that the Magistrates Court lacked jurisdiction.

The Magistrates Courts are statutory Courts of limited jurisdiction. They only have the jurisdiction and power given to them by statute. The Magistrates Courts were established by the Courts Act [CAP. 122]. Section 4 provided that a Magistrates Courts in civil matters had jurisdiction to hear and determine matters in respect of which jurisdiction is by any written law expressly conferred on a Magistrates Court. These provisions have now been replaced by Part 3 of the Judicial Services and Courts Act No. 54 of 2000.

The Magistrates Court (Civil Jurisdiction) Act [CAP. 130] section 1 gives Magistrates Courts jurisdiction to hear money claims, and to give judgment for the monetary value of claims up to the jurisdictional limit of VT1,000,000, save that in landlord and tenant disputes the monetary jurisdiction is VT2,000,000. Of fundamental importance to this case, the Magistrates Courts have no equitable jurisdiction and are not empowered to make declarations.

The remedies sought by the appellants in the Magistrates Court proceedings sought declaratory orders. The Magistrates Court had no power to grant the relief sought, and therefore no jurisdiction to hear the claims. Rule 17 of the Civil Procedure Rules covers claims that seek to challenge the lawfulness of non-public decisions, and would appear to cover claims of the kind the appellants sought to bring in the Magistrates Court. The Rule recognises that where a review of the decision of another body is sought, whether it is body with public functions or body or decision-maker with non-public functions, the likely remedy to be granted will be a declaration about the rights of the parties.

It seems that the point which the Chief Justice was seeking to make was that the Magistrates Court lacked jurisdiction because it was being asked to review the respondents decision, and then to make declarations about the parties' rights. Under the terms of the consent orders recorded below, that point can be addressed again with the Chief Justice in due course when costs are discussed to ensure that there is no misunderstanding by counsel about the reasons why it was held that the Magistrates Court lacked jurisdiction.

Accordingly, this Court ordered by consent in Civil Appeal Case No. 25 of 2003:

1.	Appeal allowed to the extent of setting aside the orders for costs made in the Supreme Court on 18th July 2003.

2.	The Court notes that the parties are now agreed that the substantial dispute between them will be dealt with in the Supreme Court in Civil Case No. 114 of 2003.

3.	All issues of costs in the Magistrates Court, in the Supreme Court appeal in Civil Appeal Case No. 103 of 2003, and in this Court are reserved to the trial judge in Civil Case No. 114 of 2003.

4.	The parties are at liberty to apply in Civil Case No. 114 of 2003 for an early trial.

5.	The interim regime put in place by order numbered 3 in the Orders of the Chief Justice made on 1st July 2003 remains in force. The parties are at liberty to apply in Civil Appeal Case No. 103 to vary that regime, if so advised.

Dated at Port Vila, this 7th day of November 2003.

Hon. Justice Robertson
Hon. Justice von Doussa
Hon. Justice Saksak
Hon. Justice Treston