AND:
THE DIRECTOR OF LAND RECORDS
Second Respondent
Coram: Chief Justice V. LUNABEK
Justice B. ROBERTSON
Justice John Von DOUSSA
Justice Daniel FATIAKI
Hearing Date: 23 and - April 2002
Judgment Date: 26th April 2002.
Counsels: Mr. Ronald Warsal for the Appellant
Mr. Bill Bani Tamata for first the Respondent
No appearance of the Second Respondent
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JUDGMENT
This matter was commenced in the Court of Appeal by way
of Notice of Appeal against the dial of an application by affy affidavit
and
Ex parte Summons for an interlocutory injunction. The underlying issue
concerns a disputed claim for custom ownership
of land. The issues in the
case which the appellant seeks to bring are very similar to those which have
been considered
earlier this week by this court in the matter of Chief
Titus Valele v. James Toura, Civil Appeal Case No. 01 of 2002 in which
judgment is published today.
The appellant’s application to the primary judge was
summarily dismissed at taring when the appellant’s solicitors were not
presenresent. The primary judge was critical of the appellant’s solicitors, who
sent a message that they had been unexpectedly
detained in another court in
an urgent criminal matter. Even though the respondent’s counsel was present
before the primary
judge and indicated that he would not oppose an
adjournment, the primary judge thought that in the particular circumstances
of the case the application should be dismissed for two reasons.
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The first reason was that wrong proceduad been
followed to bring the matter before the court. We do not agree. We have
discussed the procedural issues in the judgment in Valele v. Touru.
An urgent application can be made on affidavit, which occurred in this case.
If the application has merit, the court
has jurisdiction to grant an
interlocutory injunction but on terms that required the applicant to file
proceedings in
the court by writ or originating summons.
The second ground was that the applicant’s personal
undertaking as to damages was, e opinion of the primary judge,
inadequate.
This was was a question upon which counsel for the appellant had not
been heard, and the information before the court was
at the time inadequate
to enable an informed opinion to be reached on that question.
The underlying issue in the appellanlaim, namely
whether he had an entitlement as a custom owner in land, was not considensidered
by the primary judge. The manner in which disputed customary ownership can
be resolved is the subject of this court’s
decision in Valele v. Touru
which the parties in this case have not yet had the opportunity to consider.
This court has held that the Island Court
(and on appeal the Supreme Court)
has the exclusive jurisdiction and authority to finally determine a disputed
land claim.
The facts alleged by the appellant in the present case would
appear to raise a serious question about custom ownership that
needs to be
resolved by the Island Court. The relief claimed by the appellant before the
primary judge was an injunction
to hold the position in status quo pending a
decision on the custom ownership in the Island Court.
When the matter first came before the Court of l,
the Court sought information from counsel as to the nature of activity
takintaking place on the subject land, and about the position of the parties to
enable it to form a view about the adequacy
of the undertaking as to
damages, and about the balance of convenience generally. The hearing was
adjourned to enable
that to occur.
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In the interim the parties have filed extensive
affidavits which raundamental and complex issues about the nature of
cus
custom ownership of land within the Republic of Vanuatu. There are many
issues to be considered in reaching a view as to whether,
if there is a
serious question to be tried, the balance of convenience is in favour of the
grant of an interlocutory
injunction. In our opinion those are matters that
need to be explored before a single judge on a rehearing of the application
which was dismissed.
Without in any way seeking to determine those issues
which will be for gle judge, this Court is satisfied on the information
before it that it should make an interim injunction to hold the situation
until the appellant’s application is considered
by a single judge. To that
end, the court invited the parties to prepare minutes of order containing
terms of an interim
injunction. This court proposes to settle those minutes
today, and subject to the interim injunction the matter will be referred
to
a single judge of the Supreme Court to be heard as soon as a hearing date
can be arrange.
In the meantime the parties should consider their
positions in light of the decision published today in the Valele-v- Touru.
The parties are at liberty to file further affidavit material in the Supreme
Court.
Strictly speaking, the decision of the primary judge
which thellant seeks to have reviewed by this Court is an interlocutlocutory
judgment. It did not finally decide rights of the parties. As the
application was dismissed in the absence of the appellant’s
solicitor the
application could be renewed at any time before the primary judge or another
judge. However in the circumstances
we think the most expedient course is to
grant leave to appeal, to allow the appeal, and to refer the matter back for
hearing before another judge in the Supreme Court. In the meantime the
interim injunction will hold the position.
We consider that the costs incurred in the application
before this Court should be reservd become costs in the causecause to
follow
the outcome of the proceedings in the Supreme Court.
Dated at Port Vila this 26th day of April 2002.
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