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Tavuti v Livo [2002] VUSC 62; SC 034-01 (1 March 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)
Civil Case No. 34 of 2001
BETWEEN:

RACHEL TAVUTI

Plaintiff
AND:

DAVID LIVO

1st Defendant
AND:

MINISTER OF LANDS

2nd Defendant
AND:

DIRECTOR OF LAND RECORDS

3rd Defendant

Coram: Before Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Counsel: Mr Hillary Toa for the Plaintiff
Mr Tom Joe for and on behalf of the Second and Third Defendants
No Appearance for or by the First Defendant

Date of Hearing: 1st March, 2002.

RESERVED JUDGMENT

The Plaintiff filed an urgent ex parte application for restraining orders against the Defendants on 4 January 2002 in the following terms –

“1. That the First Defendant by himself, his family members, agents, servants and/or workers be restrained from collecting any more funds from the Lease over property Titles No.413, 407, 414 and 408.

2. That the First, Second and Third Defendants, by themselves, their agents, servants and/or workers be restrained from any further dealings with the said Land Titles No.413, 407, 414 and 408 until all issues in Civil Case No.34 of 2001 have been fully heard by the Supreme Court in Luganville, Santo.
   
3. That should the First, Second and Third Defendant by themselves, their agents, workers and/or servants breach any of the conditions of these orders that they be arrested immediately and put in prison.
   
4. That a copy of these Orders be served on the Commissioner of Police.
   
5. That all parties are at liberty to apply for a variation of these Orders within 48 hours notice.
   
6. Such further orders as the Court deems fit.”
   

The Application was supported by the affidavit of Mrs Rachel Tavuti, the Applicant.

The Plaintiff’s cause of action is contained in her Writ of Summons dated 8^th August 2001 and filed on 20^th August, 2001. She pleads as follows:-

1. Paragraph 8 –

“The Plaintiff agreed, and later unknown to and by the Plaintiff the Defendant with the Plaintiff’s consent and/or knowledge, transferred the above titles No.413, 407, 414 and 408 on Aore Island into his own name.”

2. Paragraph 9 –

“Acting on the faith of the said representation and induced thereby the Plaintiff allowed the Defendant to handle the negotiations for the declaration was made on 2^nd June, 1982, but not in the name of the Plaintiff and Land owner but in the name of the Defendant.”

3. Paragraph 10 –

“The Plaintiff repeats the proceeding paragraph and states that such transfer was made without adhering to the proper procedures by law.”

His relief are for orders that the Lease Register for Leasehold Title No.04/3033/002 be rectified, and for costs and other orders as the Court deems fit.

The purposes of the Orders sought by the Applicant are to maintain the status quo.

The Application was objected to by Mr Joe for reason that there was no urgency in the case that necessitated the restraining orders being put in place. And he submitted that the application should be dismissed.

The law as regards injunctions is clearly spelt out in Civil Case No. 122 of 1992 Tony Deamer v. Unelco Management 2 VLR at p.554. Some of the requirements are –

1. Undertaking as to costs and damages. The Applicant did not provide any undertaking as to damages and costs.
   
2. Affidavit as to urgency – See p.556 paragraph numbered 2. Normally solicitors file these. There was none in regard to this application. The only affidavit in place is that of the Applicant herself. It does not show any circumstances which makes the matter urgent to call for an urgent hearing to grant urgent restraining orders.
   

For those reasons I come to the conclusion that this Application must be dismissed with costs. Accordingly I so order. With regard to costs, I order that it be awarded only to the Second and Third Respondents. The First Respondent was not in appearance.

DATED at Luganville this day of March, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge