Deamer v UNELCO Management [1992] VULawRp 6; [1980-1994] Van LR 554 (20 July 1992)

[1980-1994] Van LR 554

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 122 of 1992

BETWEEN:

TONY DEAMER
of Port Vila
Applicant

AND:

UNELCO MANAGEMENT
of PO Box 26 Port Vila, Vanuatu
Respondent

Coram: Chief Justice Vaudin d'Imecourt

Mr G. Vasaris for the Respondents
Mr T. Deamer Applicant in person

JUDGMENT

[PRACTISE AND PROCEDURE - INJUNCTIONS]

This matter comes before me on the application of the Respondents, Unelco Management of Port Vila, on the 20th day of July 1992 requesting, inter alia, that an Ex parte interim injunction granted to the Applicant in person by Learned Senior Magistrate, Mr Paul Akuram, be set aside.

It is worth going into the history of the matter. On the 17th July 1992, Mr Tony Deamer a car dealer of Port Vila, appeared before Learned Senior Magistrate, Mr Paul Akuram. It would appear that he must have made a request for an injunction and it was granted in these terms:-

"The Applicant. Mr Tony Deamer of Port Vila Motors Traders Port Vila has appeared before me requesting an interim injunction order stop erect a power post on the footpaths of the driveway. The Applicant's attempts to discuss the matter with the management has never eventuated.
Upon hearing the above application I am satisfied that there is a genuine complaint which needs to be discussed and settled between the parties.
It is therefore ordered that UNELCO stop erecting the concerning power posts until the Applicant and the Management have discussed the whole issue of where the post should be placed.
Dated this 17th day of July 1992"

I have reproduced faithfully above, the whole text of the order as made by the learned Magistrate.

Quite how the Learned Magistrate could have made the order that he did, escapes me. The very elementary rules of practice and law seem to have been ignored by him. There was no originating Summons and no affidavit in support of the so-called application. No notes of evidence was kept by the Learned Magistrate and it would appear that, no evidence was heard on oath by him. The order is defective from beginning to end. No undertakings as to costs and damage were taken and no return date was stipulated in the order The magistrates of Vanuatu have both a criminal and a civil jurisdiction. Under Section 1 of the Magistrate's Court ( Civil Jurisdiction ) Act CAP 130, the jurisdiction of magistrates ' Courts is defined as follows:-

"Section 1. Every Magistrate's Court established pursuant to Section 1 of the Courts Act, CAP 122 shall have jurisdiction to try all civil proceedings:

(a) in which the amount claimed or the value of the subject matter does not exceed 200,000 Vatu except claims relating to permanent physical damage to a person."

Therefore, the Learned Magistrate would indeed have been able to hear any civil matters coming before him, subject only to the financial limits stipulated above. For the good exercise of his powers, he would also be able to issue such orders as would be appropriate to ensure the enforcement of those orders.

It must, therefore, be right that he would be able to grant injunctions, if the need arose.

Section 29 of the Courts Act CAP 122 reads as follows:

"Section 29(1) Subject to the constitution, any written law and the limits of its jurisdiction a court shall have such inherent powers as shall be necessary for it to carry out its functions."

That makes it clear beyond any doubt, that the Learned Magistrate has the power to grant an injunction. But, such injunction must of necessity be within his jurisdiction and be granted according to the rules of practice.

An injunction is an order or a decree by which a party to an action is required to do, or refrain from doing, a particular thing. Injunctions are either restrictive (preventive) or mandatory (compulsive). As regards time, injunctions are either interlocutory (or interim) or perpetual. A perpetual injunction is granted only after the Plaintiff has established his right and the actual or threatened infringement of it by the defendant; an interlocutory injunction may be granted at any time after the issue of the writ to maintain things in status quo. The Court must be satisfied that there is a serious question to be tried at the hearing, and that on the facts the Plaintiff is probably entitled to relief.

ORDER 2 r 1 of the Supreme Court practice states:-

"1. (i) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party's writ, originating summons, counterclaim or third party notice, as the case may be.
2. Where the applicant is the Plaintiff and the case is one of urgency such application may be made Ex parte on affidavit but, except as aforesaid, such application must be made by motion or summons.
3. The Plaintiff may not make such an application before the issue of the writ or originating summons by which the cause or matter is to be begun except where the case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the writ or summons and such other terms, if any as the court thinks fit."

Clearly all the elementary rules here have been breached by the Learned Magistrate. There was no affidavit or originating summons. He could not possibly have known whether such an action would have been within his financial limits as stipulated under the Magistrate's Court (Civil jurisdiction) Act CAP 130 Section l(a) or not.

Further, UNELCO, the respondent herein, is one of those governmental bodies or "concessionaire" established for the purpose of running a power supply and it has very wide ranging authority under Section 5 of the Electricity supply Act CAP 65.

Section 5(d) states that the Concessionaire can do any of the following:-

"erect and maintain posts, staywires, poles or pillars in or upon any private or other land and attach, place and maintain wires, lines, conduit or other appliances and things necessary for the works in, under, through or over, across or upon any street, road, land, buildings, houses or premises.
Provided that before the exercise of any of the powers herein conferred notice of the concessionaire's intention shall be served on the owner or owners or other interested party, if any, at least 7 clear days before the exercise of such power."

It may be said, of course, that Mr Deamer might or could have been "an other interested party" but how is one to determine that, without originating summons or affidavit evidence or for that matter without taking any evidence at all. I would have expected the Learned Magistrate, at the very least to have taken evidence on oath and to have recorded it. That was not done. I would also have expected the Learned Magistrate, whom I presume, has a modicum knowledge of law, to have looked at the Electricity Supply Act. Further, Efate, being a small island, the allegedly offending post would not be far from the Court house. It would have taken only a matter of minutes for the Magistrate in this case to check out the story that must have been spinned to him by Mr Deamer. Such a visit would have shown to him, as it did to me, when I visited the site, that there was no truth whatsoever in the story Mr Deamer was telling him.

To interfere with the workings of the power industry, is a serious matter which should not be done lightly. Industries, hospitals, home and offices, are dependent on the supply of electricity. The cutting of a power supply can be very costly and dangerous. Any orders interfering with such supplies should never be granted lightly. The cost to the government or the concessionaire by way of damages could have been enormous both in financial and other terms.

I would, at the very least, have expected the Learned Magistrate to have taken undertakings as to costs and damages. That was not done. Ex parte Interim injunctions should only be given when there is a real need to give the same. Never without originating summons or affidavit, save with an undertaking to file the same forthwith. Always a return date, and a short one at that, should be given. In this case no return date was given by the Learned magistrate.

It appears to me, that there was nothing remotely correct with the order given by the Learned Magistrate, Mr Paul Akuram in this case. He has ignored the basic rules of Law and practice.

The matter came before me on the 20th July. I heard the motion of the respondent filed herein. I heard the Applicant and visited the site. I came to the immediate conclusion that the Applicant had lied to the Court and had misled it. I therefore, made the Order as prayed for in the Summons of the respondent. I further ordered the costs to be the Respondent's cost on a client to Solicitor basis and ordered Mr Deamer to pay Vatu 36,000 by way of costs to the Respondents.

I take this opportunity to give certain guidance to the Bar of Vanuatu. They would all do well to remember that Ex parte applications for injunctions should only be made when there is a real need for it. There should always be Affidavits and writs or originating summons in support. The Court will only grant them if satisfied that an emergency does exist. There will be a short return date, when the whole of the evidence will be gone into and all parties will be heard. Undertakings as to costs and damages will always be asked for and in some instances even security for the same will be ordered to be paid into Court.

20 July 1992

HON. CHARLES VAUDIN D'IMECOURT.
CHIEF JUSTICE