Livo v Boetara Trust [2002] VUCA 10; Civil Appeal Case 04 of 2002 (26 April 2002)

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

Civil Appeal Case No. 04 of 2002

BETWEEN:

PAUL LIVO
Appellant

AND:

BOETARA TRUST
First Respondent

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

JUDGMENT

This matter was commenced in the Court of Appeal by way of Notice of Appeal against the dismissal of an application by 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 the hearing when the appellant’s solicitors were not present. 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.

The first reason was that wrong procedures had 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, in the opinion of the primary judge, inadequate. This 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 appellant’s claim, namely whether he had an entitlement as a custom owner in land, was not considered 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 Appeal, the Court sought information from counsel as to the nature of activity taking 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.

In the interim the parties have filed extensive affidavits which raise fundamental and complex issues about the nature of 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 a single 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 the appellant seeks to have reviewed by this Court is an interlocutory 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 reserved and become costs in the cause to follow the outcome of the proceedings in the Supreme Court.

Dated at Port Vila this 26th day of April 2002.

Chief Justice V. LUNABEK
Justice J. Von DOUSSA
Justice B. ROBERTSON
Justice D. FATIAKI