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

CIVIL APPEAL No.4 OF 2006

BETWEEN:

FAMILY DAVID APIA
Appellant

AND:

COLLIN MAGRIR
Respondent

CIVIL APPEAL CASE No.14 of 2006

BETWEEN:

COLLIN TAUR
Appellant

AND:

FAMILY DAVID APIA WILLIAM
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak
Hon. Justice Patrick Treston

Counsel: Mr Saling Stephens for Family David Apia William 
Mr Bill Bani for Collin Magrir (Collin Taur)

Date of hearing: 22nd May 2006
Date of Judgment: 1st June 2006

REASONS FOR JUDGMENT

These two appeals are related and have been heard together. Appeal in CAC 4 of 2006 is referred to in these reasons as the first appeal, and Appeal in CAC 14 of 2006 as the second appeal. For reasons which follow both appeals will be dismissed as we consider that no right of appeal lies to this Court from either of the Orders made in the Supreme Court which the respective Appellants seek to challenge.

These matters have their genesis in a disputed land claim tried in the Malekula Island Court in 1985. On 13 May 1985, the Malekula Island Court handed down its decision. The case concerned several parcels of land in respect of which there were different disputing parties. The parcel of land in question in these proceedings is known as Danev - Naur. The Malekula Island Court declared the custom owner to be the late David Apia William.

Section 22 of the Island Court Act [CAP.167] provides:

"22.	(1)	Any person aggrieved by an order or decision of an island court may within 30 days from the date of such order or decision appeal therefrom to-

(a)	the Supreme Court in all matters concerning disputes as to ownership of land;

(b)	the competent magistrates’ court in all other matters.

(2)	The court hearing an appeal against a decision of an island court shall appoint two or more assessors knowledgeable in custom to sit with the court.

(3)	The court hearing the appeal shall consider the records (if any) relevant to the decision and receive such evidence (if any) and make such inquiries (if any) as it thinks fit.

(4)	An appeal made to the Supreme Court under subsection 1(a) shall be final and no appeal shall lie therefrom to the Court of Appeal.

(5)	Notwithstanding the 30 day period specified in subsection (1) the Supreme Court or the magistrate’s court, as the case may be, may on application by an appellant grant an extension of such period provided the application therefore is made within 60 days from the date of the order or decision appealed against." 

Section 23 of the Island Court Act makes it clear that the Supreme Court, when hearing an appeal under s.22 is sitting in its appellate jurisdiction.

The Respondent in the first appeal, Collin Magrir is the same person as the Appellant in the second appeal, and it is convenient to refer to him by the name he there adopts, Mr Taur. He was aggrieved by the decision of the Island Court. He claims that he lodged an appeal with the Supreme Court within the prescribed time, and that the appeal is still on foot, notwithstanding subsequent events to which reference is made later in these reasons.

On 4 August 2004, the Appellant in the first appeal, the Family of the late David Apia William (hereafter referred to as Family David Apia) filed an application in the Supreme Court seeking the following Orders against Mr Taur:

"1.	An Order that there is currently no appeal in relation to custom land within the boundary of " Danev to Naur"  pending before the Supreme Court for determination.

2.	Alternatively, an Order that if there is any appeal in relation to custom land within the boundary of Danve to Naur that appeal has been effectively withdrawn by the Appellant on 23rd April 2001 and the matter be brought to its conclusion." 

There was a delay in hearing that application, and in the meantime on 16 March 2005 Mr Taur sought and obtained from the Supreme Court an Order staying the operation of the decision of the Malekula Island Court. On 25 January 2006, Family David Apia applied to have that stay order set aside so that the decision of the Island Court would again operate according to its terms.

Family David Apia’s application of 4 August 2004 was eventually heard and determined by a single Judge of the Supreme Court. He delivered a decision on 13 February 2006, and made consequential Orders on 17 February 2006. It is from those Orders that Family David Apia seeks to appeal in the first appeal.

The factual assertions of Family David Apia in support of the first of the Orders sought by them was that no appeal had been filed by Mr Taur. They contended that a search of the Court file relating to the Island Court proceedings disclosed no evidence of such an appeal. These factual issues were determined against Family David Apia. Although the records of the Court were in some disarray after nearly 21 years, the trial Judge was able to find within them a note that an Appeal was filed by Mr Taur on 10 June 1985.

The factual assertions of Family David Apia in support of the second Order sought was that by a written notice addressed to the Chief Registrar of the Supreme Court dated 23 April 2001, Mr Taur withdrew his appeal. Family David Apia asserted that because of the appeal instituted in 1985 by Mr Taur, the Minister had continued to treat the Danev – Naur land as land where ownership is disputed, and exercised the Minister’s management powers under s.8 of the Land Reform Act [CAP.123]. In consequence, income received from the land was retained by the Minister pending a final determination of ownership. Family David Apia said that in 2001 an agreement was reached between them and Mr Taur pursuant to which Mr Taur withdrew his appeal and notified other interested parties that he had done so.

On the strength of the notice of withdrawal of the appeal, the Minister released monies held in trust, and a proportion was paid to Mr Taur as a small chief in relation to the Danev – Naur land. However, on 9 September 2002, some time after payment had been made, Mr Taur wrote to the Supreme Court to have his appeal re-instated.

Those basic facts were accepted by the trial Judge. However, he went on to hold that Mr Taur’s notice seeking to withdraw his appeal on 23 April 2001, notwithstanding its apparent formality and clearly expressed intention, did not operate to put an end to the appeal. His Lordship accepted a submission of counsel for Mr Taur that the purported withdrawal of the appeal was governed by the High Court (Civil Procedure) Rules 1964, and in particular by Order 28 rule 1. Those rules were in force until repealed by the Civil Procedure Rules No.49 of 2002, which came into force on 31 January 2003.

Order 28 rule 1 of the 1964 rules provides:

"Order 28

Discontinuance

1.	The plaintiff may, at any time before receipt of the defendant’s defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out…" 

The learned Judge held that as the Supreme Court had not granted leave to withdraw the appeal, Mr Taur’s notice amounted only to an application for leave to withdraw the appeal. His Lordship said:

"39.	On 23 April 2001 Mr Magrir wrote to the Court to say he was withdrawing his appeal. At that point in time the civil procedure rules in force was the Old Rules, not the New Rules. For the withdrawal or discontinuance to be effective, it had to comply with the relevant order under the Old Rules. Order 28 of the Old Rules is the relevant provision and provides for the Claimant to be able to withdraw or discontinue his clam but it has to be done with the permission of the Court. There is no evidence before this Court that the Supreme Court had granted leave to the Claimant, Mr Magrir to withdraw or discontinue his appeal when he applied to the Court on 23 April 2001.

….

42.	From 23 April 2001 until 31 January 2003 when the new Rules came into force, the Supreme Court had not given leave to Mr Magrir to discontinue or withdraw his appeal.

43.	The letter of 23 April 2001 to the Court withdrawing his appeal, in my view, amounts to an application in the context of Order 28 of the Old Rules." 

Both the Orders sought by Family David Apia were refused. On 17 February 2006, consequential Orders were made which included an order that the application by Family David Apia made on 25 January 2006 to lift the stay Order "cannot proceed as it raises matters which are res judicata". There were also orders about other interlocutory applications concerning ongoing appeals from the Malekula Island Court decisions which are not presently relevant. At the same time His Lordship announced that he reserved his decision on an oral application which counsel for Family David Apia made after His Lordship handed down his reasons for decision on 13 February 2006 that the learned Judge should disqualify himself from further hearing Mr Taur’s appeal.

On 10 March 2006, His Lordship published reasons on that oral application. He disqualified himself from further involvement.

In the second appeal Mr Taur seeks to challenge His Lordship’s decision to disqualify himself. In effect he seeks an Order from this Court directing the Judge to continue hearing the matter notwithstanding his considered reasons why there could be a reasonable apprehension of bias on his part. The arguments advanced in support of this extraordinary proposition were that His Lordship had received an oral application by counsel for Family David Apia to disqualify himself on the sole ground that years before when His Lordship was Attorney General, the Office of the Attorney General had been involved in some way with the appeal from the Malekula Island Court. In his published reasons His Lordship refused to disqualify himself on that ground. However he went on to consider another ground of disqualification which Family David Apia had later raised in written submissions. His Lordship described this further ground as a "further application for my disqualification". The new ground advanced concerned the disproportionable times for which His Lordship had reserved judgment on an application by one of the parties and yet had dealt expeditiously with an application by the other party. Counsel for Mr Taur argued that there was no "further application" that met the requirements for an application under the Civil Procedure Rules, No.49 of 2002 and that the part of His Lordship’s reasons dealing with the second ground for disqualification should be " struck out" . That would leave only that part of the reasons which rejected disqualification on the first ground.

Decision on the first appeal

The scheme of the Island Court Act [CAP.167] in relation to all matters concerning disputes as to ownership of land is clear. Under s.22(4) a decision of the Supreme Court on an appeal from an Island Court decision concerning ownership of land is " final and no appeal shall lie therefrom to the Court of Appeal" . In our opinion it must follow that if there is no appeal to the Court of Appeal from the ultimate decision of the Supreme Court, there can be no appeal from interlocutory decisions given in the course of the proceedings leading up to the hearing of the appeal. To hold otherwise would be a back doorway of circumventing the clear intention of s.22(4).

However, Family David Apia are not without any avenue to revisit the substance of the Orders which they seek to challenge in this appeal, and to obtain an effective remedy if they can demonstrate clearly that the Orders are based on a legal error. For reasons which follow relief may be available from a single judge of the Supreme Court.

The Orders under challenge are Interlocutory Orders. An interlocutory order is one that does not finally determine the rights, duties and obligations of the parties. A Judge managing the preparation of a case for trial at first instance, or for the hearing of an appeal, can, on further interlocutory application, revisit earlier interlocutory orders if they can be shown to be mistaken in law. Such a mistake can and should be corrected so that the matter proceeds to trial or hearing on the correct basis. From time to time it happens that in making an interlocutory order the parties or the judge overlooks a relevant statutory provision or mistakes the relevant legal principle. If this comes to light, and the judge is satisfied that legal error has occurred, the earlier order can be recalled and the correct interlocutory order substituted.

It should be stressed that the occasion to exercise this power is likely to be rare. When a Judge makes an interlocutory order the judge obviously believes that the correct law has been applied. The judge is likely to adhere to that view even where one of the parties argues otherwise. In this situation the party who believes the judge has made an error in law must either seek leave to appeal against the order, or later appeal against the final judgment if the party considers the alleged legal error has carried through to cause error in the final judgment.

In the present case it seems clear to us that counsel were mistaken in submitting to the trial judge that Order 29 rule 1 was applicable. A careful reading of that rule, either alone or in the context of the High Court (Civil Procedure) Rules as a whole, makes it clear that it applies only to first instance matters, that is to " actions"  which are defined in Order 1, rule 1, to mean a civil proceeding commenced by writ or in such other manner on the rules prescribe. The High Court (Civil Procedure) Rules do not deal with appeals such as these. It is for this reason that there were separate Court of Appeal Rules to deal with appeals from the Supreme Court to the Court of Appeal.

Once it is recognized that Order 29, rule1, has no application to the facts as found by the trial judge, there is no requirement in law that prevents Mr Taur’s notice dated 23 April 2001 from operating according to its clear intention. However that is a matter that Family David Apia can take up if they wish with the judge who will now be assigned to manage the ongoing procedural issues in the appeal from the Island Court decision concerning the Danev - Naur land. The order for costs made against Family David Apia on the dismissal of the application dated 4 August 2004 could be revisited if the orders for dismissal are set aside. Another issue which counsel for Family David Apia may wish to take up with the new judge is the hearing of the outstanding application issued on 25th January 2006 to lift the stay on the Island Court decision. 

As the Orders made by the Supreme Court on the application dated 4 August 2004 were interlocutory orders, the res judicata principle has no application. That is a principle which applies to final decisions on issues raised and determined after a trial (or on an appeal therefrom). That is not to say, however, that where there has been a hearing on a factual issue in the course of deciding an interlocutory application that there may not arise an "issue estoppel" relating to an essential factual issue that has been clearly raised and decided. That occurred here on the question of whether an appeal had been instituted by Mr Taur and whether there was an agreement between the parties pursuant to which Mr Taur sent the notice to the Chief Registrar withdrawing his appeal.

It would also remain open to Family David Apia to take out an application seeking an order to the effect that Mr Taur be restrained from asserting that his initial appeal is still on foot on the ground that it is an abuse of process for him to take advantage of his purported withdrawal of the appeal, and then later to deny the withdrawal. Again, the outcome of such an application would be for the new judge to decide after hearing the parties.

Decision on the second appeal

Once a judge has decided that he or she is disqualified from hearing or continuing to hear a matter, that is the end of that question, save in exceptional circumstances where necessity requires the judge to continue because there is no other judicial officer to take over. The finality of a decision to disqualify is recognized by s.38 of the Judicial Services and the Courts Act No.54 of 2000 which provides:

"38.	Disqualification

(1)	If:

(a)	a judge has a personal interest in any proceedings; or

(b)	there is actual bias or an apprehension of bias by the judge in the proceedings;

he or she must disqualify himself from hearing the proceedings and direct that the proceedings be heard by another judge.

(2)	A party to any proceedings may apply to a judge to disqualify himself or herself from hearing the proceedings.

(3)	If a judge rejects an application for disqualification, the applicant may appeal to the Court of Appeal against the rejection. If an appeal is made, the judge must adjourn the proceedings until the appeal has been heard and determined.

(4)	A judge who reject an application for disqualification must give written reasons for the rejection to the applicant."

A right of appeal is a statutory right. It will be noted that s.38(3) creates a right of appeal only where a judge rejects an application for disqualification. The Act does not grant a right of appeal where disqualification occurs. This Court has no jurisdiction to hear the second appeal.

As both appeals fail for want of jurisdiction, we think justice will be done between the parties on the issue of costs if no costs orders are made.

ORDERS

Accordingly, in each appeal the formal order is that the appeal be dismissed with no order as to costs.

Dated at Port-Vila this 1st day of June 2006

BY THE COURT

VINCENT LUNABEK CJ
JOHN von DOUSSA J
DANIEL FATIAKI J
OLIVER A. SAKSAK J
PATRICK I. TRESTON J