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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)
Civil Appeal Case No.11 of 2000
BETWEEN:
JEROME NALIUPIS
Appellant
AND:
KAVCOR WASS
Respondent
Coram: Before Mr Justice Oliver A. Saksak
Ms Cynthia Thomas - Clerk
Counsel: Mr Bill Bani Tangwata for the Appellant
Mr Hillary Toa for the Respondent
Judgement Entered: 18th October, 2000.
JUDGEMENT
The Appellant sought leave of the Court for enlargement of time pursuant to the Court's inherent powers in Order 60 Rule 3(1) of the High Court Rules 1964. Such leave was granted on 17th October, 2000. The appeal was listed for hearing on 18th October, 2000.
The brief history of the matter is that in Land Case No.4 of 1993 the Island Court decided the ownership of Sakau Island in favour of the Respondent herein and one Pedro Lite, who is not party to this appeal. The Judgement is dated 7th July, 1993. It gave the Appellant 30 days right of appeal. The Island Court ordered among other things, that the Appellant remove his bullocks from Sakau Island before 31st December, 1993. He did not abide by those orders but sought extensions three times. The Court granted extensions to the Appellant but even then the Appellant did not remove his bullocks. Instead he took certain actions to prevent agents of the Respondent from entering onto Sakau Island and carrying out certain developments agreed to between the Respondent and the developers. For this reason the Respondent filed proceedings in Civil Case No.60 of 1996 seeking certain orders. On 19th August 1996 the Magistrate's Court issued the following Orders -
"Upon the application of the applicant (Respondent) herein and having read the Applicant's affidavit and upon hearing Mr Saling Stephens for the Applicant and hearing the Respondent (Appellant) it is hereby ordered as follows:
(1) That the Respondent, his Servants and Agents be, until final determination of the Appeal case in respect of Island Court Judgement No.1 of 1993 be restrained from taking any steps or causing any harassment, threats or assaults on the Applicant, his Servant and Agents.
(2) That the Respondent, his Servants and Agent be, until the final determination of the Appeal case in respect of Island Court Judgement No. 1 of 1993 be restrained from entering or approaching the Island of Sakau.
(3) That if this Order is breached (broken) the Respondent will be arrested by Police and be brought to Court to be dealt with for contempt of Court.
(4) That the Officer commanding Northern Police District be advised of this Order and a copy be served on him.
(5) That there be liberty to apply reserved.
(6) That the costs of this application be reserved."
The Appellant lodged his appeal against the decision of the Island Court on 7th July 1993. He did not appeal against the Orders of the Magistrate's Court in 1996 and the reason he provided was that he did not have any opportunity to instruct a Solicitor. He filed his Notice and Grounds of Appeal on 23rd May, 2000 seeking the following orders:-
"(1) The orders of the Magistrate Court in Civil Case No.60 of 1996 dated 19th August, 1996 be dismissed.
(2) The Respondent pay compensation to the Appellant for damages arising from the interim injunction of the Magistrate Court dated 19th August, 1996.
(3) Costs of this appeal.
(4) Any further or other orders as the Court shall deem fit."
The Appellant advanced the following grounds:-
"(1) No undertaking as to damages had been given by the Applicant through his counsel when it was appropriate that such be given.
(2) Even if no undertaking as to damages was given by the Applicant, the court erred in not invoking its inherent powers in ensuring that the Applicant provides an undertaking to pay damages to the Respondent should the Court thereafter be of the opinion that the Respondent had suffered damages by reason of the injunctive relief granted to the Applicant.
(3) The Order of 19th August, 1996 was unconscionable in that it reserved liberty to apply.
(4) The Respondent had been adversely affected and has suffered damages by reason of the injunctive orders of the Magistrate Court dated 19th August, 1996."
Having heard submissions from both counsel I decided that the Court exercising its appellate jurisdiction could not possibly entertain the Appellant's claim for damages. That is a claim to be entertained by the Court in its original jurisdiction on a statement of claim endorsed on a writ of summons to allow proper pleadings by all parties. I therefore ruled that that relief be excluded from the appeal.
In my view there were only two major issues -
(1) Whether or not the Court below had erred in not ensuring that the Respondent provide an undertaking as to damages before the grant of these Orders?
In my judgement it was not necessary for such an undertaking to be given in this case as the Respondent was acting in good faith that he was the declared owner of Sakau Island. It would have been different had the Respondent taken a completely new action which he was not sure of success. In his case the action was complete and he was declared the winner.
(2) Whether or not Order 5 prohibited the Appellant from having access to the Court to challenge the Orders being in place?
In my judgement Order 5 when read carefully does not have that effect at all. In fact Order 5 reserved liberty to apply to the Appellant in the event that he was adversely affected by any of those orders. It was a liberty conditional upon something happening to the Appellant. Unfortunately it seems that the Appellant did not make use of that liberty although it seems he was adversely affected by them.
Arising from these was a further issue of whether or not the Orders of 19th August, 1996 were necessary at all? This question must be considered in the light of the appeal against the decision of the Island Court dated 7th July, 1993.
The record shows that the Appellant lodged his appeal on 27th July, 1993. The effect of the appeal is that ownership declared in favour of the Respondent is now in question. By Order 60 Rule 7 of the High Court Rules 1964 it is clear that an appeal does not operate as a stay of execution but it is in the discretion of the Court to so order. In Vanuatu land is a very important asset and it is a very sensitive matter. Whenever there is an appeal against the decision of an Island Court, commonsense and wisdom should prevail that the decision ought to be stayed pending determination of the appeal.
The effect of a stay of orders is that all parties should continue to enjoy the land but that there be mutual respect for each others rights pending the final decision. For these reasons the Orders of 19th August, 1996 were therefore not necessary.
In my judgment, the Appellant's appeal should act as a stay of execution of the Orders of the Island Court Orders of 7th July, 1993, and I so rule.
This Appeal therefore is allowed with costs awarded to the Appellant. However the court is of the view that it should issue alternative orders to maintain and preserve the status quo as between the parties. The Orders are as follows:-
(1) There shall be no new developments whatsoever by either the Appellant, his agents, servants or representatives on Sakau Island pending the final determination of the appeal or until further order of this Court.
(2) There shall be no new developments whatsoever by either the Respondents, their agents, servants or representatives on Sakau Island pending the final determination of the appeal or until further order of this Court.
(3) The Appellant and the Respondents are entitled to the quiet enjoyment of the Island without interfering with each others rights, or harassing, threatening or abusing each other.
(4) Liberty is granted to Parties to apply where respective rights are violated.
DATED at Luganville this 18th day of October, 2000.
BY THE COURT
OLIVER A. SAKSAK
Judge
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