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Court of Appeal of Vanuatu |
IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)
CIVIL APPEAL CASE No.08 OF 2008
BETWEEN:
Mr EZRA WILLIAM
of Lunganville, Santo in the Republic of Vanuatu
Appellant
AND:
AHC (Vanuatu) Limited
of Luganville, Santo in the Republic of Vanuatu
Respondent
Coram: Chief Justice Vincent Lunabek
Justice John von Doussa
Justice Christopher Tuohy
Justice Mark O’Regan
Counsel: Stephen Tari Joel for the Appellant
John Malcolm for the Respondent
Date of hearing: 21 July 2008
Date of judgment: 25 July 2008
JUDGMENT
The appeal in this matter purports to be brought personally by the appellant, Mr Ezra William. He has signed the Notice of Appeal but it is apparent the document has been professionally prepared by a lawyer.
The Notice of Appeal seeks to set aside in their entirety the following Orders made by His Lordship Justice Saksak on 8 May 2008:
"1. Civil Case No.45 of 2007 be and is hereby struck out in its entirely, and there will be not order as to costs.
2. The Orders the Court of Appeal in Civil Appeal Case No.22 of 2006 dated 4th October 2006 remain in full force and effect to the extent that the two respondents namely Don and Kenway William be further restrained from assaulting, threatening, interfering or otherwise acting unlawfully forwards AHC Limited including family members and Mrs Marisa Vire and family members or any other person directly or indirectly involved in this case.
3. Any further breaches of these orders, the Police be hereby authorised to carry out arrests accordingly.
4. The Court declares Ezra William to be a vexatious litigant."
There has been considerable confusion and contention over whether Mr Ezra William freely and with understanding authorised the institution of Civil Case No.45 of 2007, or this appeal. Conflicting affidavits and memoranda have been produced. In some Mr Ezra William purports to disown the proceedings, saying they have been instituted against his will and under duress from his sons Don William and Kenway William. In others he purports to ratify the proceedings saying that statements by him to the contrary effect have been the result of duress from police officers and others. What is clear from the papers is that Mr Ezra William is an old and infirm man who has become a pawn in an ongoing dispute in which some of his family, in particular his sons Don and Kenway, are on the one side and the respondent AHC (Vanuatu) Limited ("AHC") and its principal shareholder Mr Allan Cort are on the other side.
It is impossible to tell from the conflicting documents and statements made by counsel to this Court where the true situation probably lies.
On the face of the record both Civil Case No.45 of 2007 and this appeal have been regularly instituted in the same name of Mr Ezra William, and unless we can be positively satisfied to the contrary – which we cannot be on the conflicting material – we consider the appeal must be dealt with on the merits.
The several grounds for the appeal are stated later in this judgment. It is necessary first to outline the history of the litigation which gives rise to the present appeal and in particular to the subject matter of Civil Case No.45 of 2007 which was struck out by the above Orders.
In the 1968, Ezra William purchased the leasehold interest in two leasehold properties, which he subsequently converted into leasehold titles Nos.04/2621/008 and 04/2621/009 situated at the Matevulu village, South East Santo. For many years Ezra William lived on the land with his wife at that time, Gladys William and their many children. Some ten years before the litigation arose, Ezra William left the property and took up residence with another woman elsewhere in Santo. Gladys and several of his sons, including Don and Kenway, continued to live on the Matevulu land. In or about May 2001, Ezra William agreed to sell the Matevulu land to AHC for a total consideration of Vatu 15,500,000. Transfers of the leasehold titles from Ezra William to AHC were executed on or about 9 September 2002 and registered on or about 25 November 2002.
Then followed the litigation. In the first Writ of Summons, Gladys William and a number of her sons claimed interests in the land, and asserted that the transfers of the leasehold interests to AHC had been done through fraud or omission and legal mistake and should be declared null and void. Rectification of the register was sought. By the time the first proceedings came on for trial the claimants had been reduced to Gladys William and the sons Don and Kenway. In essence, Gladys William claimed an interest in the land on a basis that she had contributed to its purchase through her hard work on the land and support she had given to Ezra William and the family. Don and Kenway claimed interests on the basis that their father had allotted plots of land within the leasehold area to them for their houses, and for farming activities.
After trial of the first proceedings, all claims by Gladys William and Don and Kenway were dismissed, and an Order for their eviction from the land was granted in favour of AHC on a cross-claim.
Gladys William, Don and Kenway appealed against the dismissal of their claims on many grounds. In a judgment dated 4 November 2004, the Court of Appeal allowed the appeal and set aside the Orders which had been made at trial. The Court of Appeal upheld a number of aspects of the judgment at trial, including the finding that the registration of the Transfer of Lease of AHC was not invalidated by fraud or mistake. However the Court considered that the trial judge had not given due consideration to Section 17(g) of the Land Leases Act [CAP.163] which provides that a registered proprietor of a lease holds such lease subject to "the rights of a person in actual occupation of land save where enquiry is made of such person and the rights are not disclosed". The Court of Appeal remitted to the Supreme Court for consideration whether Gladys William, Don and Kenway were at relevant times persons in actual occupation of the land such that AHC held each registered leasehold interest subject to s.17(g) rights.
At the second trial before the Supreme Court, the learned trial judge held that Don and Kenway each established a s.17(g) right in respect of separate areas of 2.5 hectares allocated to each of them by Ezra William, and that Gladys had established an equitable interest obtained as settlement of a matrimonial claim against Ezra William, to occupy for life two old houses and surrounding gardens on an offshore island included within the leasehold area, an interest that is also protected by s.17(g).
Although Gladys William, Don and Kenway succeeded at trial to the extent mentioned, they were dissatisfied with the result. They considered that they also had other interests to which were not upheld by the trial judge, and in particular Don and Kenway claimed that they had s.17(g) rights in additional areas of land on which their actual houses were established. Gladys William claimed that her interest extended to a greater area of the leasehold. A further Notice of Appeal was filed by them. Pending the hearing of the appeal Gladys William, Don and Kenway sought a stay on the execution of the judgment in so far as it recognised rights of AHC over those parts of the leasehold which were not subject to s.17(g) rights. Ezra William was a named party to that application, as he had been in both trials and the first appeal. He was a proper and necessary party as the outcome could give rise to a claim against him by AHC as AHC had not received a title clear of other interests. On the stay application Gladys, Don and Kenway alleged that AHC had not paid the full purchase price for the leases. Rather, AHC had paid only Vatu 7 million towards the purchase price, and on that ground they sought again to challenge the interest of AHC as registered lessee on the ground that the lease had been registered by a fraud or mistake as to the full payment of the purchase price.
Justice Saksak heard the stay application and delivered a decision with reasons on 26 October 2005. The learned judge refused the application for a stay, and also refused a cross-application by AHC to evict the appellants from parts of the land outside of those already declared to be subject of s.17(g) rights. The decision was based on a number of expressed findings of facts, including that Ezra William had been fully paid the purchase price by AHC Ltd. The judge noted that Ezra William had not at any point in the proceedings made any complaint about non payment of the full purchase price. There was no appeal against this judgment.
The second appeal came on for hearing before the Court of Appeal in November 2005. In a judgment published on 18 November 2005, the Court noted that the parties had reached agreement on a number of outstanding issues. In particular the parties had agreed that Don and Kenway each had s.17(g) rights over a number of 2.5 hectares blocks in the leasehold properties, and that Gladys had s.17(g) rights over Kervimele Island at the other end of the leasehold block. Agreement had also been reached over certain access rights to these sites across the balance of the land. However, the Court noted that there was uncertainty in the reasons of the trial judge regarding claims by Don and Kenway to additional areas of land on which their respective houses were built. Their entitlements to rights in respect of those household areas were remitted once again to the trial judge for determination. In the course of its judgment the Court of Appeal then noted that, apart from the limited matters remitted to the trial judge: "There is now finality over all other issues apart from the nature and effect of the occupation of the house site of the Appellant sons".
The remitted matters were subject to a further trial in the Supreme Court on 10 April 2006, resulting in a judgment dated 20 June 2006 in which it was held that Don and Kenway held s.17(g) rights over certain areas of land on which their houses had been built. Ezra William was again a party to that trial, and was one of the people who gave evidence at it. It appears that no question about the adequacy of the payment of purchase price was raised on the trial of the remitted matters.
The decision of the Supreme Court gave rise to yet another appeal, this time brought by AHC. That appeal came on for hearing before the Court of Appeal in the October 2006 session. However, with some encouragement from the Court, the outstanding issues between the parties were resolved by agreement and an Order by Consent was made by the Court on 4 October 2006. Given the history of the proceedings to that date, we think it is clear from the terms of the Consent Orders that all parties intended then to operate as a final settlement on all issues. We note that neither Gladys William nor Ezra William are stated in the heading of the Consent Orders as parties, but it cannot be disputed that they were proper parties to the appeal as they have been to the earlier proceedings, and the terms of the settlement vary Orders dealing with the rights of Gladys William.
It is surprising in light of the Consent Orders, and the issues that had been pursued to an end in the earlier proceedings that any of the parties could believe there remained room to argue about the nature and extent of proprietary rights held by them in the leasehold land. However, unfortunately further litigation issued.
In about June 2007 AHC alleged that Don and Kenway continued to encroach on areas of the leasehold land in which it had been held that they had no right or interest. AHC applied to have them dealt with for contempt of the Consent Orders of the Court of Appeal. Mr Saling Stephens, who had appeared throughout the proceedings for Gladys William, Don and Kenway, continued to appear for them on the application for contempt. On that occasion his clients, through him, once again contended that AHC had not paid the full purchase price and on that basis that its leasehold interest could be attacked. In reasons for a ruling adjourning the application Justice Saksak said, in relation to the allegation full payment had not been made: "This is a matter that should be litigated separately as a new proceeding if the Claimants choose to do so, but they cannot continue to maintain that position as an excuse to breach the standing orders of this Court and the Court of Appeal. The Second Defendants (AHC and Ezra William) have the final Orders issued by the Court of Appeal and they are entitled to quiet enjoyment of their leases".
Perhaps buoyed by these remarks, Civil Action No.45 of 2007 was commenced on 23 November 2007. In their initial form, the proceedings were brought in the names of "Kenway William and Don William representing Ezra William" by Saling Stephens & Associates, and named AHC and the Director of the Department of Lands as the defendants. The pleadings alleged that AHC had paid only "Vatu 1,237,000 to the claimants purported to be full and final settlement of the consideration value". Once again it was alleged that the registration of the transfer of the leasehold interest had been by way of fraud and/or mistake being a false representation by AHC that it would pay the entire purchase price of the Vatu 15,500,000 upon registration of the Leasehold Titles.
The proceedings were amended on 14 February 2008 by changing the name of the claimant from "Kenway William and Don William representing Ezra William" to Ezra William. The amended proceedings were filed by Saling Stephens & Associates, and signed by Saling Stephens as "Advocate for the claimant" even though to that point in the extended litigation Mr Saling Stephens had acted against Ezra William. Later Mr Saling Stephens recognised his conflict of interest and filed a Notice of Ceasing to Act for Ezra William.
By the Orders recited at the outset of this judgment, those proceedings were struck out by Justice Saksak on 8 May 2008.
Information in the appeal papers discloses that in about February 2008, Ezra William consulted another lawyer in Santo Ms Marisan Pierre Vire, and according to a sworn statement from Ms Vire, Ezra William instructed her to act and take all actions necessary to put an end to civil claim No.45 of 2007 as he did not support it and said that he had received full purchase price long ago. According to Ms Vire’s sworn statement, Ezra William said that he did not know about the Court case (Civil Case No.45 of 2007); that it was the idea of his sons Don and Kenway to initiate proceedings not his; and about a statement that he had sworn in relation to the proceedings, he said he had done so at the behest of Don and Kenway. He said he did not know what he was signing.
The grounds of appeal assert that the learned judge erred in:
It is not necessary that we deal with each of these issues, one by one, as we consider that it was so plainly correct for the primary judge to strike out Civil Case NO.45 of 2007 that the other issues raised by the Notice of Appeal are of no practical significance.
On 8 May 2008 the Conference took place at a time set at a previous Conference hearing on 27 March 2008. The parties had ample notice of the hearing, and the Application to Strike Out Civil Action No.45 of 2007 had been on the Court file since 27 November 2007. It makes no difference that the Supreme Court Claim had in the meantime been amended to show Ezra William as the Claimant in his own right, rather than as the substantive Claimant suing by his two sons as his representatives. The First Defendant’s application remained one to strike out the claim.
The purpose of a conference hearing is to deal with any interlocutory applications: Rules 6.4(2)(a) and 6.5(2)(c) of the Civil Procedure Rules No.49 of 2002. The strike out Application was such an application. As the outcome was critical to management of the proceedings it was entirely correct for the Court to deal with it at the Conference on 8 May 2008.
His Lordship, Justice Saksak, was very familiar with the history of the litigation which in any event was summarised in the affidavit filed in support of the strike out application. Given the history to which we have earlier referred, there could be no doubt that Civil Claim No.45 of 2007 attempted to re-litigate an issue that had already been fully and finally determined by earlier judgments. The first proceedings and the first decision of the Court of Appeal conclusively determined that the registration of AHC’s Leasehold Title had not been obtained by fraud and mistake, and the claim for registration had been decided in favour of AHC in proceedings involving Ezra William, and, more importantly, those who held s.17(g) interests.
The allegation that the purchase price of VT15,000,000 had not been fully paid was not an issue between the parties until it was belatedly raised by Don and Kenway in the application to stay the judgment given in the Supreme Court on 22 July 2005. Once the question of payment was raised in those proceedings, the Court held that "Ezra William had been fully paid by AHC Ltd." Absent an appeal against that decision and absent any other attempt at the time to recall that finding of fact, the finding is now binding on all the parties to the litigation. The litigation which preceded Civil Case No.45 of 2007 had decided all the rights, claims and interests of the parties relating to the Leasehold Titles and to the use and occupancy of the land. For this reason it was entirely correct that the Supreme Court strike out Civil Claim No.45 of 2007 at the earliest possible opportunity. And that opportunity presented itself at the Conference on 8 May 2008.
In our opinion this was the correct course to take even if there were doubts about the capacity of Ezra William to prosecute the proceedings without legal assistance, or if there were doubts about the authority of those purporting to speak on his behalf. However on the information before the Court on 8 May 2008 we see no reason to question the correctness of the course taken by the learned judge in reliance on the affidavit of Mrs Vire who was present in Court.
In our opinion the present appeal is without merit, and must be dismissed in so far as it challenges the order to strike out Civil Claim No.45 of 2007.
In so far as the grounds of appeal assert that the Court wrongly issued Arrest Orders against the Appellant, or anyone else, the ground of appeal is presumably referring to paragraph 3 of the orders of 8 May 2008. Whilst in reality the order in the terms in which it is made could not lawfully justify the arrest of anyone, it is expressed in terms that could lead to misunderstanding. To be valid an order to arrest someone must contain the details contained in the usual form of an arrest warrant. The person to be arrested must be named. The reason for the arrest must be stated and the order must direct what is to happen to the arrested person after arrest, for example that he be delivered to the Court, or to a gaol to be held according to the terms of the order which must also specify the duration of any period of imprisonment. None of those details are in paragraph 3 of the order which we suspect was intended just to emphasise the likely course of events if the injunctions in earlier orders were disobeyed. As paragraph 3 is not in meaningful terms we consider it should be deleted from the order.
In so far as the judge warned parties that they would be dealt with for contempt of the earlier Court orders if those orders were not respected, the warning was proper and should now be heeded.
As for the order that Ezra William be declared a vexatious litigant, that order seems to have been made in error. Perhaps the learned judge intended to declare Don and Kenway vexatious litigants, but as counsel for AHC immediately conceded before this Court, AHC did not intend to seek a vexatious litigant order against Ezra William, and he invited the Court to discharge the order. We do so. Apart from that variation to the orders of 8 May 2008, and the removal of paragraph 3, the appeal is otherwise dismissed.
The parties must accept that the past litigation has settled all issues relating to the Leasehold Titles and to the use and occupancy of the Leasehold land. There are injunctions in place contained in the order of the Court of Appeal dated 4 October 2006 and the order of the Supreme Court dated 5 May 2008. The parties bound by those orders are required to fully comply with them. If not, they will be liable to be dealt with by the Supreme Court for contempt. Imprisonment, sometimes for a lengthy period, is the usual punishment for contempt of orders of the kind which exist in these proceedings.
The formal orders of the Court are:-
1. The Order declaring Ezra William a vexatious litigant is set aside.
2. Paragraph 3 of the Order of 8 May 2008 is set aside.
3. The Order of 8 May 2008 is otherwise confirmed.
4. Subject to the variations to the order of 8 May 2008 contained in paragraph 1 & 2 above, the appeal is dismissed.
5. The appellant is to pay the costs of this appeal.
DATED at Port-Vila this 25th day of July 2008
BY THE COURT
Hon. Vincent LUNABEK CJ
Hon. John von DOUSSA J
Hon. Christopher Tuohy J
Hon. Mark O’REGAN J
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