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

CIVIL APPEAL CASE No. 28 of 2003

BETWEEN:

Mr. THEOPHILE DUDUNI
Appellant

AND:

PIERROT VATU, JEAN PAUL ANGELO
First Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Patrick Treston

Counsels: The appellant in person
Mr. Felix Laumae for the respondents

Date of hearing: 30th October 2003
Date of judgment: 30th October 2003

JUDGMENT

This is an appeal against Orders made by Justice Saksak on 23rd July 2003. In those Orders His Lordship directed that the appellant’s case in the Supreme Court be dismissed against the present respondents Pierrot Vatu and Jean Paul Angelo. His Lordship also ordered the costs of the proceedings in the Supreme Court be paid by the appellant.

The reasons delivered on that occasion by His Lordship are described as a ruling but in reality the Orders made dismissing the appellant’s claim were final orders as they disposed of the action. The Order made cannot be described as an interlocutory order within the meaning of rule 7.1 of the Civil Procedure Rule No. 49 of 2002. That is a matter that becomes relevant when we consider the processes that were followed which led to the making of the Order now under appeal. As the order under appeal is a final order, leave to appeal is not required.

The appellant complains that the Orders should not have been made for a number or reasons. Some of those reasons challenge the process that was followed, others of those reasons challenge the merit of grounds upon which His Lordship thought it appropriate to dispose of the proceedings. Those grounds were that the subject matter of the appellant’s claim had been settled by a custom settlement sometime earlier, and that the principle of res judicata applied to prevent or estop the appellant from proceeding further with his claim.

For reasons that follow we consider that the appeal must be allowed by reason of error of process, and it not necessary or appropriate that this Court pass final views about the merits of the alleged settlement.

It is necessary to look at the steps which were taken in the Supreme Court leading up to the ruling which is now challenged. The claim in the Supreme Court was instituted by a Writ of Summons on the 25th May 2003. The particulars of claim indicated the appellant was seeking damages for the theft of kava reaped from land which he leased from Mr. Pierrot Vatu in consideration of the payment of 10% of the value of kava grown on that land.

In accordance with the requirements of the Civil Procedure Rules, the respondents filed a defence and added a counterclaim. The defence admitted the theft of the kava to a value of 356,000 Vatu but set up a counterclaim alleging that the appellant had in the past not fully paid 10% of the value of kava reaped from the land. There were no suggestions made in the defence that the subject matter of the claim had earlier been settled. Questions of res judicata or estoppel were not raised in the document. On the contrary the counterclaim being put forward is inconsistent with there having been a custom settlement between the parties resolving all the issues between them.

In accordance with the Rules, there was a first conference on 24th June 2003. Directions were given by the supervising Judge for the addition of further respondents. That Direction was made at the request of the present respondent apparently on the basis that the present respondents said that kava had also been stolen by other people who were the new parties to be joined. Those new parties were not joined at the request of the appellant.

In addition, Directions were given for the filing of witness statements and for a defence to the counterclaim. The final Direction given was that a trial preparation conference be held on the 23rd July 2003.

Following the Directions, a defence to the counterclaim was filed, and the appellant filed a considerable number of witness statements supporting his claim about the theft of kava.

On 22nd July 2003, a long statement was filed from the respondent Pierrot Vatu and apparently that statement was served sometime during the day on the appellant’s lawyer.

What happened at the trial preparation conference the following morning is indicated in the following passages from the ruling that was given that day by Justice Saksak.

“Mr. Kabini (who appeared for the respondents) raised a couple of preliminary issues for the Court to decide. One being an oral application for orders dismissing the plaintiff’s claim as against the first defendants (who are the present respondents). He relies on the affidavit of Pierrot Vatu dated 22nd July 2003. 

He submitted that the plaintiff proceeded against the first defendants in Civil Case No. 134 of 2001 (issued in the Magistrate’s Court) where the plaintiff had agreed that the matter be settled according to custom, and further that the matter has been so settled, that the plaintiff is estopped from further claims on the same subject matter which has been dealt with by a Court below. Further Mr. Kabini submits that the plaintiff failed to comply with Direction Orders of this Court dated 24th June, 2003 by failing to file and serve the documents within the time specified by those orders, that under r.9.10(1)(b) of the Civil Procedure Rule No.49 of 2002, the case should be struck out.

Mr. Kapalu (who appeared for the appellant) objects to this application. He contends of the Magistrate’s Court writ issued by the plaintiff sought only restraining Orders. In reply Mr. Kabini refers me to the plaintiff’s pleadings in paragraph 17 in which he specifically alleges theft of his kava against these defendants.

Considering those submissions, it is my view that Mr. Kabini is correct on the estoppel principle which he submits to me. The matter is res judicata. The matter has been settled in custom. I am satisfied with that evidence. I accept the submission that the plaintiff is estopped from proceeding further against the first defendants for claims which has (sic) been settled. On that basis alone I dismiss the plaintiff’s case as against the first defendants. I order the plaintiff to pay the first defendants’ costs of and incidental to this proceeding.”

It will be noted that the claim was not dismissed because of any alleged failure to fully comply with Directions that earlier had been given. That issue was not the basis for the decision that was made by His Lordship. We add that in our view it would have been wrong for the case to have been struck out at that time for non compliance with the earlier Orders as the Orders had substantially been complied with. Many statements had been filed. The only non compliance was that they were filed a little out of time.

It will be noted that over the objection of the appellant’s counsel His Lordship had regard to the affidavit that had been filed the day before and proceeded upon an oral application. Further His Lordship considered the merits of the allegation of settlement and made final findings on matters of facts which led to the conclusion that the whole matter had been settled.

We observed earlier that the Order dismissing the claim was not an interlocutory Order. The Rules provide for the making of an application for an interlocutory order orally at a conference hearing. But they do not provide that an oral application can be made without prior notice to the other side for a final order which has the effect of summarily dismissing the whole action. Further the Rules require that where a party intends to rely upon a written statement for the purpose of an application, the written statement should be filed 3 days ahead of the application. That did not happen in this case.

The reality of what happened is that the appellant’s lawyer went to the hearing expecting that issues about the readiness for trial would be discussed. Once there, he was taken by surprise with an application of a kind about which he had no proper prior warnings. The pleadings at that stage did not raise any question about there being a settlement. There was no application to amend the defence. We have observed the counterclaim was inconsistent with there having been a settlement.

The course which the learned Judge should have taken at that stage was to adjourn the oral application for a final Order and to require that the respondents’ counsel file a written application seeking to amend the defence to plead the settlement and to file any further statement that may be needed in support of that amendment and the merits of the proposed new defence.

His Lordship should then have allowed time to the appellant to file evidence by statements or otherwise in response to the entirely new allegation. Then the new allegation could have been considered. If it raised disputed questions of fact then it would have been inappropriate to deal with the matter summarily. Rather a date should have been fixed for the hearing of oral evidence and the cross-examination of witnesses.

His Lordship did not direct any of these steps. He proceeded directly to deal with the merits of the case on the evidence of one side only and without hearing oral evidence.

There was a fundamental breach of the rules of natural justice, as well as serious breaches of the Civil Procedure Rules.

The appellant was not given a fair and proper opportunity to consider the new case that was alleged against him and to bring forward evidence in answer.

Because of those fundamental errors the ruling and decision that was made on 21st July 2003 must be set aside.

The dangers of proceeding on the evidence of one party only, and against the objection of the party against whom the application is made, are demonstrated fully in this case. Given time, the appellant was able to file an affidavit which put his side of the case. The appellant has brought forward evidence which in many respects indicates that the events which occurred in the Magistrate’s Court were not as they were asserted to be by Mr. Pierrot Vatu in his affidavit.

The Magistrate’s Court proceedings were not proceedings claiming damages for theft of kava. On the contrary they were proceedings that merely sought restraining orders to prevent the respondents from denying access to the appellant to his land. Moreover, there was no decision in the Magistrate’s Court other than the Magistrate deciding that he had no jurisdiction. Res judicata can only arise where a court of competent jurisdiction has decided issues that were fairly raised between the parties and were the subject of adjudication. None of that happened here.

Moreover, the custom settlement that then followed appears, at least on the case of the appellant, to have been concerned with a prohibition arising from the placement of namele leaves on the land, a prohibition which prevented the appellant from entering the land and tending his garden. It appears, at least on the evidence of the appellant, that the settlement was not directed to the theft of kava. The appellant in his affidavit asserted that he was not even aware of the extent of the theft of kava until after the custom ceremony had occurred and he returned to the land in the presence of police officers and others.

There is another matter raised in the answering affidavit of the appellant. He says that the respondent Pierrot Vatu did not attend the custom ceremony and it appears that he may not be a party to it. If that is the case he can hardly rely upon that settlement.

In short, on the case now put forward by the appellant there was no settlement dealing with the subject matter of the new claim for the value of stolen kava.

There is a dispute between the parties on a number of facts particularly as to the alleged settlement. That dispute should be the subject of oral evidence if and only if the respondents amend their defence and their counterclaim to reflect reliance upon a settlement.

For the reasons that have been given the Order dismissing the appellant’s claim must be set aside and the proceedings re-instated. The re-instatement extends to re-instating the particulars of claim by the appellant against the present respondents and to the present respondents’ defence and counterclaim.

Part of the Orders that were made by His Lordship concerned the additional parties that had been joined following the directions hearing on 24th June 2003. As we earlier indicated those parties were joined at the request of the respondents, not the appellant. The appellant does not wish to join those parties, and on the information that was given to us from the Bar table there seems to be no reason for them being joined at all. Accordingly the re-instatement Order that we make does not extend to the reinstatement of the additional parties that were joined after the 24th June 2003. 

The Court will order that the Registrar advise the parties of a further conference before a Judge other than Justice Saksak to give appropriate directions for the further conduct of the case.

As the appeal has been allowed the respondents must pay the appellant’s costs of this appeal.

We note again that if the respondents want to rely upon the settlement, notwithstanding the information which is now available to them from the appellant’s affidavit, they will have to amend their defence and counterclaim to raise the settlement issue.

There is one last comment that we wish to make. It will be apparent from what we have said that the Court is critical of the process that was followed by the Judge. However, there were counsels present at the conference when the orders were made. There is also a responsibility on counsel to bring to a Judge’s attention failures to comply with the Rules. Counsel has a responsibility to assist the Judge to ensure that process errors of a kind which happened in this case do not occur. Counsel have a responsibility to point out to judges when there may be a breach of nature justice occurring and to encourage Judges to allow time to everybody concerned to bring forward their cases and to have them properly considered. If that does not happen attempts to shortcut procedures and to bring proceedings to a summary end are likely to back-fire causing unnecessary delay and additional costs.

The formal orders of the Court are:

1.	Appeal allowed. The order of dismissal of the appellant’s claim is set aside together with the order for costs against the appellant.

2.	The appellant’s claim and the respondents’ defence and counterclaim are re-instated.

3.	The respondents must pay the appellant’s costs of this appeal.

4.	The Registrar shall advise the parties of the time and place for a further conference be conducted by a Judge other than Saksak J.

DATED at LUGANVILLE this 30th day of OCTOBER 2003

BY THE COURT

V. LUNABEK CJ
J. B. ROBERTSON J
J. von DOUSSA J
D. FATIAKI J
P.I. TRESTON J