Atel v Massing & Massing [2001] VUCA 20; Civil Appeal Case 22 of 2001 (2 November 2001)

p class="MsoNormal" aal" align="center" style="text-align: center; margin-right: -7.55pt; margin-top: 1; margin-bottom: 1"> IN THE COURT OFAL OF

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THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-right: -7.55pt; margin-top: 1; margin-bottom: 1"> lang="EN-GB" style="font-size: 12.0pt">CIVIL APPEAL CASE No.22 of 2001

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BETWEEN:

Mr. JOHN ATEL
n>of LuganLuganville Santo in the Republic of Vanuatu
Appellant

AND:

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> DICKSON MASSING and PAUL MASSING
both of North East Ambrym in the Republic of Vanuatu
Respondents

Coran. Chief Justice Vincent Lunabek

Hon. Justice John von Doussa

Hon. Justice Reggett Marum

Counsels: Mr. M. Saling Stephen for the applicant

class="MsoNormal" style="tee="text-align: justify; margin-top: 1; margin-bottom: 1"> Mr. Jack Kilu for the respondents

Date of Hearing: 02 November 20pan>

Date of Judgment: 02 November 2001

RE JUDGMENT

There is before the Court an urgent application for leave to appeal. The application in paragraph 1 reads:

&nnbsp;; nbsp;nbsp;&nbp; &nnbsp; “ at that the Supe Supreme Court Order dated 17 September 2001 for this eviction of the applicant and those he represented be stayed until the applicant’s appeal has been determined by the Court of Appeal.”

This matter arises out of a long and listed a dispute over some land named as Barereo land. The matter first reached the Courts in 1998 when on 28 May 1998 a decision was given in the Magistrate Court at Lunganville, Santo by Magistrate Steve Bani. After some procedural difficulties, it was determined that a Notice of Appeal had been filed in the matter and it came on for hearing ultimately as an appeal from the Magistrate’s decision before Justice Coventry who gave judgment on 26 June 2000. In the Magistrate’s Court the present applicant had sought damages for trespass to land and goods from the respondents. And he was successful before the Magistrate.

In the course of interlocutory proceedings b the matter was actually hely heard by Justice Coventry, it became clear that the dispute was not over the whole land of the Barereo land but only over a portion of it which has been variously described about in a Memorandum of the relevant Chiefs it is described as the Loliol land.

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In hisons for decision Justice Coventry held that the effe effect of the Magistrate’s decision was to decide the ownership of not only the Loliol land but all of the Barereo land to so resolve an ownership question relating to a custom land was beyond the jurisdiction of the Magistrate’s Court. It was a matter that should have been otherwise determined first by the decision of the relevant Chiefs and then if necessary on appeal by the Land Court.

His Lordship therefore allowed the appeal and gave directions to have the dispute about ownership brought first before the relevant Chiefs and if necessary then before the Land Court. His Lordship endeavoured to frame orders that would hold the peace between the parties pending ultimate resolution of ownership. To that end he made Orders in the following terms:

“2. &nbsp &nbssp; The e question of ownership in custom of Barereo land and the various parts of it and the validity in custom of the agreement between John Atel and Sisikon dat Dece1995 is95 is referred to the North Ambrym Counciluncil of C of Chiefs for resolution, if possible.

clas class="MsoBodyText" style="line-height: normal; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> The Council of Chiefs is asked to inform torm the parties in writing of its decisions by 17 April 2001.

The matter was brought back again before Ju Coventry for further interinterlocutory Orders which he made on 17 September 2000. On that occasion he stayed the paragraphs 2 and 3 of the Order of 29 June 2001 and gave directions as to the consequence of that Order for stay. Those directions are in the following terms:

“1.2 (a) &nsp; & &nbbsp; &nbp; Jop; John Atel and his faaily and those he represents must vacate the Land known as Barereo and which is declared by paragraph numbered “3” of orth m Couof Chiefs decision of 4th April 2001 to belong long to otto other people by 3PM on Tuesday 9 October 2001.

(b) ;&nbssp; &nsp; &nbs; &nb p; /s They must do t do this peacefully and not damage the Land or anything on it or growing on it.

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(c) &&nsp;;&nspp;&nssp; p; John Atel and those he represents are hereby restrained from re-entering the land after 3.00pm, on Tuesday 9^th October 2001 until further Order of this Court./b>

1.3 &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& Dicksonckson Massing and other person described in paragraph numbered “3” of the Council’s decision may take possession o Land.00 pn Tuesday 9 October 2001 according ding to thto the owne ownershiership set out in paragraph 3 in the Council’s decision.”

The decision of the North Ambrym Chiefs and in palar paragraph 3 to which Hich His Lordship’s Order refers is in the following terms:

“3. &nbsp &nbssp;&nnbp; Kot t imas diklearem Family Massing hemi kastom ona blong Loliol, Family Sawan Sali hemi kastom ona blong Ranbetetan, Sanel Tobolli hestom blong Taron mo Family Tefonbu hemi hemi kast kastom ona blong Binbang evriwan oli stap stap insaed long eria blong Barereo.”

p class="MsoBoMsoBodyText" style="line-height: normal; margin-top: 1; margin-bottom: 1"> We return to the terms of the paragr of the application before fore us today. On questioning Mr. Saling Stephens who has appeared for the applicant he has informed the Court that the appeal to which he refers is an intended appeal against the Order of 17 September 2001. No such appeal has yet been filed. That is recognized by paragraph 2 of the Order which seeks leave to appeal. But in substance the applicant is seeking leave to appeal from an interlocutory decision which was made in the Order of 17 September 2001. The difficulty which faces the applicant is that the Order of 17 September 2001 is itself not more than a variation of the Order of 29 June 2001. Further the Order of 2001 was itself ancillary in so far as it dealt with an occupation and possession of the land to the resolution of the appeal from the Magistrate’s Court.

This Court, in Frederick Brysten v. Simon Dorsen in Civil Appeal No.5 of 1997, explained that the Court of Appeal has no jurisdiction to hear an appeal from a single Judge of the Supreme Court who has sat in the appellate jurisdiction from a Magistrate’s Court. In short the decision of a single Judge of the Supreme Court on appeal from a Magistrate’s decision is final.

At page 6 of the decision in Brysten v. Dorsen this Court observed that ther there might be important special questions of law that were worthy of the consideration of the Court of Appeal and that Parliament might consider amending the relevant legislation to allow a further appeal to this Court by leave. However there has been no such amendment in the meantime with the consequence that this Court cannot entertain an appeal from the decision of a single Judge who has decided a Magistrate’s Court appeal.

p class="MsoBoMsoBodyText" style="line-height: normal; margin-top: 1; margin-bottom: 1"> In our opiif the Court of Appeal is deprived of jurisdiction toon to hear the substance of an appeal from the decision of the single Judge, in no circumstances the Court cannot have and cannot assume jurisdiction to deal with an ancillary matter arising out of the disposal of the Magistrate’s appeal by the single Judge.

p class="MsoBoMsoBodyText" style="line-height: normal; margin-top: 1; margin-bottom: 1"> It follows therefore that we are of the opinion that we do not have have jurisdiction to entertain the present application for leave. And for that reason alone the application must be dismissed.

We add however that we have spent sometime in discussion with counsel in an endeavour to understand the underlying issues. If the Court had jurisdiction it would not grant leave to appeal against an interlocutory Order unless there were reasonable prospects of success in the appeal. In other words the Court would need to be satisfied that there was a real issue that needed to be resolved which had a prospect of succeeding. Moreover there are additional rules which the Court observes in considering applications for leave to appeal against Orders of that kind. Leave will also only be granted where some substantive right is seriously involved. That particular requirement will be met in this case.

However, we do not think that there is any reason to doubt that the discretioretion to stay the Order for possession which was made by the Judge was properly exercised in the first instance. We would therefore not give leave to appeal even if the Court had jurisdiction.

class="MsoBoMsoBodyText" style="line-height: normal; margin-top: 1; margin-bottom: 1"> There is however one matter that we s mention. The discussion wion with counsel has indicated that the real dispute between the parties is confined to a portion only of the Barereo land sometimes referred to as the Loliol land and was so described in the Council of Chiefs’ report dated the 4 April 2001. Moreover it appeared from discussions that the parties are closely related and in the youth all lived happily on the same Barereo land.

In consce of the decision in the Magistrate’s Court the resp respondent’s were removed from some part of the Barereo land and presumably from some of the improvement thereon on 4 November 1998. As we understand the intent of the substantive Orders which have been made on 29 June and 17 September 2001 it is that the respondents, Dickson Massing and Paul Masseng be returned to the possession of that which was taken away from them on 4 November 1998 and not that they and their followers be given possession of the Barereo land to the exclusion of John Atel and his followers from the whole of Barereo land.

As we understand the position, Coventry J ntending that the parties bies be returned the position before the Magistrate’s Court proceedings. That would be a position, as we understand the position, John Atel and his followers would occupy some of the Barereo land and Dickson Massing and Paul Masseng and their followers would occupy other parts. If that is the intent of the Order that have been made by Coventry J, it is our view that the Writ of Possession which now lies on the Court file, it appears at page 25 of the appeal transcript, does adequately describe the land and the intent of the Writ of Possession. A Writ of Possession should be in term sufficiently definitive for the executing Bailiff or Police officer to understand precisely what is required and also to the parties upon whom the Writ is executed to know clearly what the Order of the Court requires of them.

In our opinion the general reference in tit of Possession to the Bare Barereo land at large does not implement the intention of the Orders that were made by Coventry J on 29 June 2001 and 17 September 2001. Although this Court does not have jurisdiction the Court proposes to request the Registrar in her administrative capacity to have the Writ held for 21 days by the Police who presently have it in Santo to enable the parties to have the matter further considered by Coventry J with the view to redrafting the terms of the Writ of Possession. This Court is not suggesting that the substantive intent of the Orders is in anyway deficient but we think that the actual description of the Writ requires attention.

For the reasons given the application for leave to appeal wial will be refused. There is no application for costs, a wise decision in all the circumstances by Mr. Kilu. There will be no Order for costs. And we simply add that this type of family dispute should be resolved within the custom avenues that are available because the jurisdictions of the Court and the type of Orders which the Court can make are not likely in the long run to give any degree of satisfaction to the parties.

DATED at T-VILA, this 2 NOVEMBER, 2001

class="Mss="MsoBodyText" align="center" style="text-align: center; line-height: normal; margin-top: 1; margin-bottom: 1"> BY THE COURT

Vincent LUNABEK CJ