Remy v Palaud [2005] VUCA 23; Civil Appeal Case 15 of 2005 (18 November 2005)

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

CIVIL APPEAL CASE No. 15 of 2005

BETWEEN:

MAXIME REMY
Appellant

AND:

DENNY PALAUD
Respondent

Coram: Hon. Chief Justice Vincent LUNABEK
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu

Counsel: Mr Bill Bani for the Appellant
Mr Saling Stephens for the Respondent

Date of hearing: 9th November 2005
Date of Judgment: 18 November 2005

JUDGMENT

This is an appeal against a judgment of the Supreme Court in Luganville, Santo, on 7 June 2005 made in its appellate jurisdiction. There is a preliminary issue as to the competence of this appeal. It is an appeal which emanate from the Magistrates Court in the light of Section 30(4) of the Judicial Services and the Courts Act of 2000 (as amended).

Section 30(4) of the Act provides:

“The Supreme Court is the final Court of appeal for the determination of question of fact. However, an appeal lies to the Court of Appeal from the Supreme Court on a question of law if the Court of Appeal grants leave.”

It is necessary to describe the proceedings and the events in the Courts below. The Appellant in this Court commenced proceedings in the Magistrates Court in Luganville on 21st November 2002. He pleaded his claim as follows:

“WRIT OF SUMMONS

1. The Plaintiff brings an action of eviction against the Defendant.
   
2. The Plaintiff is originally from Malekula and is a registered lessee of residential lease title No.03/OH71/041.
   
3. The Defendant is originally from Santo and is developing interfering and or holding onto the possession of the Plaintiff’s property lease title 03/0H71/041.
   

PARTICULAR OF INTERFERENCE

• Continue to trespass into the property despite knowledge that he does not own the property.
• Continue to plant and or make gardens on the property.
• Continue to clear and or develop the land despite knowledge of Plaintiff’s property.
  

4. The plaintiff registered the property on 9th of October 1992 in his name.
   
5. Plaintiff has given verbal and written notices to the Defendant to vacate, however, Defendant refuses.
   
6. Defendant continue to develop plaintiff’s property despite notices to vacate.
   
7. By reason of the Defendants conduct, plaintiff is deprived of economic benefit of his property and or usage.
   

WHEREFORE PLAINTIFF CLAIMS

(a) Eviction within 14 days.

(b) Mesne Profit of VT10,000 per annum since 1992.

(c) Costs.

(e) Any other orders deem fit at 5% by the Court.”

In substance, the Appellant claimed that he is the registered lessee of the residential lease title No.03/OH71/041. He claimed for an eviction order against the Respondent from the said Leasehold property.

The Respondent filed a defence in the Magistrates Court on 14 April 2003 as follows:

“DEFENCE

1. The Defendant does not admit the Plaintiff has the right of action against him.
   
2. The Defendant does not admit the Plaintiff is a registered lessee of residential lease Title No.03/OH71/041 as the said registration was done fraudulently.
   
3. The Defendant does not admit he is illegally, interfering and/or holding onto the Plaintiff’s property.
   
4. The Defendant does not admit the Plaintiff followed proper procedure in registering Title No.03/OH71/041.
   
5. The Defendant does not admit the Plaintiff is entitled to issue eviction notices to him.
   
6. The Defendant does not admit the Plaintiff obtained the property according to the laid down procedures.
   
7. The Defendant does not admit the Plaintiff suffered any economic loss as he has never spent any penny on the said property.
   

AND the Defendant denies the Plaintiff is entitled to any relief as sought since the registration of the property was obtained by fraud.”

The Respondent generally denied all the claims. There was no counterclaim pleaded in the statement of defence.

On 17 September 2003, the Magistrates Court proceeded to hear the case and gave judgment on 20 November 2003.

In his judgment, the learned Magistrate made the following findings:

“(a) A letter by Valuer, W. Dominique, dated 12/290 which states that he valued the property Title No.03/OH71/040. The then valuation price was VT81,000.

Then the same Valuer recommended in the (above) letter that the new owner would be Dennis Palaud and the former owner, Clemenceau would be cancelled as the property owner. In fact, there is no mention of two properties. The Valuer attached to the letter a land surveyor’s plan (map) of the demarcation to be only the mentioned title above.

(b) Certificate of Registered Negotiator bears the name, Marksim Remy. In the alternative there is nothing for the Defendant. (See Plaintiff, Exhibit P2).

(c) The Survey plan of the property Title No.03/OH71/040 is not the same as that of Title No.03/OH71/041.

(d) The letter (deed) by Clemanceau Cecile date 3rd December 1980 never made mention of property Titles 03/OH71/040 and 03/OH71/041.

(e) The Lease (Residential) Dennis Palaud only has on property Title No.03/OH71/040 (See Annexure “c” for plaintiff).

(f) Tropical Real Estate Valuation quote dated 29th March 2000 only describes of Property Title No.03/OH71/040. (not as claimed by the Defendant to have Title MNO.03/OH71/041).

(g) The fact that Maxim Remy withdrew his summons in Court does for itself say Maxim Remy is not the owner of property Title No.03/OH71/041.

(h) The letter of a/Principal Lands Officer, Jean Marc Pierre, dated 29th April 1993 has alteration made to the end figure on (1). The Court is suspicious of such alterations.

(i) The purported letter by General Manager Urban Land Luganville, dated 9/985 has also alterations to the figure one (1). Moreover, the letter is not a Lease Title. (See Plaintiff’s exhibit ‘B’).

(k) There is little or no evidence of any fraudulent dealings before this Court.”

Based on these findings, His Worship ordered the Respondent to quit and deliver up possession of the leasehold property title No.03/OH71/041 within 21 days from the date of the judgment and to pay the costs of the proceedings.

The Respondent appealed to the Supreme Court against the eviction Order on the ground that the Magistrate had no jurisdiction to deal with the matter as the claim raised issues relating to the Land Leases Act [CAP. 163] and the Magistrate failed to appreciate the fact that the matter was res judicata, as the matter had been earlier settled on 21st July 1993.

On 13 June 2005, the Supreme Court Judge in Luganville heard the appeal and the judge gave his Judgment on 17 June 2005 which is now the subject of the appeal before this Court. In his Judgment, Justice Saksak allowed the Respondent’s appeal on two (2) bases.

First, that Magistrates Court had no jurisdiction to deal with the matter in relation to the legality of the lease titles and the proper course of action was to have transferred the matter to the Supreme Court for trial. Having failed to do so, the Magistrates’ Court had erred. Second, that the judge accepted that the matter was brought to Court once in 1993 and was marked as withdrawn and it was not open to the Respondent now to file the same case after 10 years claiming for the same eviction Orders that he had earlier withdrawn in 1993. His Lordship accordingly ruled that the matter was res judicata.

On 15 July 2005, the Appellant filed a Notice of Appeal to this court. The Notice of Appeal does not in terms seek leave of the Court of Appeal. Without such leave, under Section 30(4) of the Judicial Services and the Courts Act, the appeal is incompetent and cannot proceed.

When the matter came on for hearing before the Court, the issue of jurisdiction was raised. The Court allowed counsel for the Appellant to seek leave to appeal. He did so and identified the question of law as being that the Appellant:

“surrenders title and transfer same to the Respondent, contrary to the relevant provisions of the Land Leases Act and/or contrary to the powers vested in the Court.”

Counsel was persuaded that this may not be a question of law as what was being challenged as a legal question was in fact part of an obiter dictum in the Judgment of the Supreme Court Judge.

Counsel for the Appellant then identified a different question of law which was whether res judicata can be advanced when a matter has been withdrawn.

Counsel for the Appellant provided the Court with a definition of the phrase “Res judicata” from Stroud’s Judicial Dictionary of Words and Phrases. That states:-

“res judicata’ is used to include two separate states of things. One is where a Judgment has been pronounced between parties and findings of fact are involved as a basis for that judgment. All the parties affected by the Judgment are then precluded from disputing those facts, as facts, in any subsequent litigation between them. The other aspect of the term arises when a party seeks to set up facts which, if they had been set up in the first suit, would or might have affected the decision. This is not strictly raising any issue which has already been adjudicated, but it is comparable to that position (Robinson v. Robinson [1943] p.43, 44, per Henn –Collins J.).”

In the light of the definition, we accepted that whether the principle of res judicata can be advanced when a matter has been withdrawn, is a question of law that properly arises in the appeal judgment.

For reasons which now follow, we consider that there was a misapprehension of the principle of res judicata by the Supreme Court Judge. In the circumstances we consider that leave to appeal should be granted on the question of law identified by counsel.

We turn now to the question whether the fact that the Appellant withdrew his earlier claim for an eviction Order in 1993 precluded him from reopening it before the Courts.

We are of the view that the Learned Judge erred in law when he ruled that the claim was dealt with as withdrawn and had become res judicata.

The matter was withdrawn. It was not decided. It was not finally adjudicated upon by a Court of competent jurisdiction. A matter which is withdrawn is not res judicata.

We are of the view that His Lordship misapprehended the nature of the claim when he held that the Court below had no jurisdiction to deal with the matter in relation to legality of Leasehold Titles. The claim did not challenge the legality of the title. It was a claim for an eviction Order, mesne profits and interests. The Appellant before the Magistrates Court had to establish that he had a good title to the said Leasehold property in order to succeed in his claim.

The defence raised fraudulent conduct on the part of the Appellant in acquiring the Land Lease Title No.03/OH71/041. There was no counterclaim by the Respondent seeking rectification of the registration of the said lease under Section 100 of the Land Leases Act [CAP. 163]. The Government is not a party to the claim. It is difficult to understand how a defence raising fraudulent conduct of some sort would be understood to be advanced on the basis of the Land Leases Act [CAP. 163] without a counterclaim seeking rectification under Section 100 of the Land Leases Act [CAP. 163]. Counsel for the Respondent concedes this must be the case.

In the present appeal, the Magistrate in the first hearing had jurisdiction to deal with a claim for an eviction Order when there is no counterclaim challenging the legality of the Leasehold Title under Section 100 of the Land Leases Act [CAP. 163].

If there had been such a counterclaim, the Magistrates Court would have had to stay the claim and transfer the counterclaim to the Supreme Court to deal with as the challenge would then be as to the legality of land Leasehold Title under Section 100 of the Land Leases Act [CAP. 163], which is beyond the jurisdiction of the Magistrates Court.

We are accordingly of the view that the appeal must be allowed.

The appeal is allowed. The decision of the Magistrates Court is restored. The Appellant is entitled to normal costs in respect of all the hearings.

Dated at Port-Vila this 18th day of November 2005

BY THE COURT

VINCENT LUNABEK CJ
J. BRUCE ROBERTSON J
DANIEL FATIAKI J
PATRICK I. TRESTON J
HAMLISON BULU J