Alatoa v Koko [2021] VUCA 29; Civil Appeal Case 805 of 2021 (14 May 2021)

IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU (Civil Appellate Jurisdiction)	Civil Appeal Case No. 21/805 CoA/CIVA
BETWEEN:	Walter Alatoa
	Appellant
AND:	Willie Koko, Moise Paise, Sandy Kaltabang
	Respondents

Date of Hearing: 4 May 2021

Coram: Hon. Chief Justice V. Lunabek

Hon. Justice R. Asher

Hon. Justice R. White

Hon. Justice D. Aru

Hon. Justice G. Andrée Wiltens

Hon. Justice V.M. Trief

Counsel: Mr P. Fiuka for the Appellant

Ms P.K. Malites for the Respondent S. Kaltabang

Date of Decision: 14 May 2021

JUDGMENT

1. Introduction
   
   1. This is an appeal against the striking out of the Claim on an application to set aside default judgment.
      
2. Background
   
   2. The Appellant Walter Alatoa filed a Claim in the Supreme Court for eviction of the Respondents Willie Koko, Moise Paise and Sandy Kaltabang from leasehold title no. 12/017.
      
   3. On 15 April 2020, the Supreme Court entered default judgement and issued eviction orders against the Respondents.
      
   4. On 13 May 2020, Mr Koko filed an application that the default judgment be set aside. Mr Kaltabangd a similar applicpplication on 8 June 2020. The primary judge directed the parties to file submissions and indicated that he would make his decision on the papers.
      
   5. By judgment dated 18 February 2021, the primary judge set aside the default judgment and then dismissed the Claim.
      

100. Discussion
     
     6. Mrs Malites accepted from the outset that default judgment is not available in eviction claims. Part 9 of the Civil Procedure Rules provides for default judgment in only 2 spc circumstances: claims fims for a fixed amount and claims for damages. Accordingly, the matter had to be set down for hearing of the Claim, even on short noticd a formal trial held: Wilfred v Westpac Banking Corporarporation [2012] VUCA 31.
        
     7. In the circumstances, the primary judge correctly set aside the default judgment however he erred in then determining the Claim and dismissing it in the absence of a trial. The appeal must be allowed and the matter returned to the Supreme Court for hearing of the Claim.
        
     8. Mr Paise was present in Court but unrepresented. Mrs Malites spoke with him and confirmed that he agreed that the matter be returned to the Supreme Court. Mr Koko was served the appeal documents and notice of the hearing and has chosen not to appear.
        

4. Result
   
   9. The appeal is allowed. The orders in paragraphs 21 and 25 of the judgment dated 18 February 2021 dismissing the Claim are quashed.
      
   10. The matter isrned to the Supreme Court, to Justice Saksak, for trial.
       
   11. There is no order as to the costs of the appeal or of the Applications.
       

DATED at Port Vila this 14^th day of May 2021

BY THE COURT

.................................................
Hon. Chief Justice
Vincent Lunabek