Naliupis v Wass [2000] VUSC 56; Civil Appeal Case 011 of 2000 (18 October 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)

Civil Appeal Case No.11 of 2000

ass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BETWEEN:

JEROME NALIUPIS

Appellant

AND:

KAVCOR WASS

Respondent

Coram: Before Mr Justice Oliver A. Saksak

Ms Cynthia Thomas - Clerk

Counsel: Mr Bill Bani Tangwata for the Appellant

Mr Hillary Toa for the Respondent

Judgement Entered: 18^th October, 2000.

JUDGEMENT

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Appellant sought leave of the Court for enlargement of time pursuant to the Court's inherent powers in Order 60 Rule 3(1) of the High Court Rules 1964. Such leave was granted on 17^th October, 2000. The appeal was listed for hearing on 18^th October, 2000.

The brief history of the matter at in Land Case No.4 of 1993 the Island Court decided the othe ownership of Sakau Island in favour of the Respondent herein and one Pedro Lite, who is not party to this appeal. The Judgement is dated 7^th July, 1993. It gave the Appellant 30 days right of appeal. The Island Court ordered among other things, that the Appellant remove his bullocks from Sakau Island before 31^st December, 1993. He did not abide by those orders but sought extensions three times. The Court granted extensions to the Appellant but even then the Appellant did not remove his bullocks. Instead he took certain actions to prevent agents of the Respondent from entering onto Sakau Island and carrying out certain developments agreed to between the Respondent and the developers. For this reason the Respondent filed proceedings in Civil Case No.60 of 1996 seeking certain orders. On 19^th August 1996 the Magistrate's Court issued the following Orders -

"Upon the application of the applicant (Respondent) herein and having read the Applicant's affidavit and upon hearing Mr Saling Stephens for the Applicant and hearing the Respondent (Appellant) it is hereby ordered as follows:

class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (1) &nbsp &nbssp;&nnbp; &nsp; &nbbp;&nnbsp; That the RespoRespondent, his Servants and Agents be, until final determination of the Appeal case in respect of Island Court Judgement No.1 of 19 restd froing any steps or causicausing anng any hary harassment, threats or assaults on the Applicant, his Servant and Agents.

(2) ;&nspp;&nssp;  p; &nbp; p; That espoRespondent, his Servants and Agent be, until the fin dinati the l casrespe Islaurt Judgement No. 1 of 19of 1993 be93 be rest restrainerained frod from entm enteringering or approaching the Island of Sakau.

(3)ot;"> &nnsp;&&nsp;;&nspp; s That if this Order is breached (broken) the Respondent will be sted lice e broto Coo be withcontef urt.span>

(4) &nsp; & &nbbsp; &nbp; &nbp; &nb p; /span>That the Offi Officer commanding Northern Police District be advised of this Order and a copy be served on him.

p class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (5) &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;; /span>That thet there be e be liberty to apply reserved.

&n/span>

(6) &nnsp;&&nsp;;&nspp;&nssp;&nsp; Thatcost of t of this application be reserved."

&nbs>

The Appellant lodged his appeal against thesion of the Island Court on 7^th July 1993. He diHe did not appeal against the Orders of the Magistrate's Court in 1996 and the reason he provided was that he did not have any opportunity to instruct a Solicitor. He filed his Notice and Grounds of Appeal on 23^rd May, 2000 seeking the following orders:-

p class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> "(1) The orders of the M Ma Magistrate Court in Civil Case No.60 of 1996 dated 19^th August, 1996 be dismissed.

(2) &nbs;  p;&nssp; &nbsp Than>The Resp Respondent pay compensation to the Appellant for damages arising from the interim injunction of the Magistrate Court d19 August, 1996.

class="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (3) &nnbsp; &nnbsp; &nbp; &nbp; Cofts is appeaappeal.

(4) &nbs; &nbbp;&nnbp;&&nbp;; &nsp; Apy further or othe other orders as the Court shall deem fit."

&nbs>

/p>

The Appellant advanced the following grounds:-

ass="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> "(1) &nbs undertaki g as o da da damages had been given by the Applicant through his counsel when it was appropriate that such be . clasoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; mat; margin-rgin-top: top: 1; ma1; margin-bottom: 1">

(2) nbsp; &nbbp;&nnbp;& &nbbsp; p; Even if no undertaking as to damages was given by the Applicant, the court erred in not invoking its inherent powers in ensuring that the Applicant provides an undertaking to pay damag the Respondent should the Court thereafter be of the opinion that the Respondent had suffered damages by reason of the injunctive relief granted to the Applicant.

(3) &nbsp &nbssp; ;&nspp; &nbp; &nbp; The Ord r of 19th August, 1996 was unconscionable in that it reserved liberty to apply.

p clasoNorstyle="margin-top: 1; margin-b: 1">

(4) &nsp; &&nbp;;&nbpp; &nnsp; &nbp; s espondent had had been adversely affected and has suffered damages by reason of the injunctive orders of the Magie Couted 1>th August, 1996.&

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Having heard submissions from both counsel I decided that the Court exercising its appellate jurisdiction could not possibly entertain the Appellant's claim for damages. That is a claim to be entertained by the Court in its original jurisdiction on a statement of claim endorsed on a writ of summons to allow proper pleadings by all parties. I therefore ruled that that relief be excluded from the appeal.

In my view there were only two major issues an>

(1)  p;&nssp;  p; &nbp; &nbp; span>

In my judgement it was not necessary for such an undertakinge given in this case as thes the Respondent was acting in good faith that he was the declared owner of Sakau Island. It would have been different had the Respondent taken a completely new action which he was not sure of success. In his case the action was complete and he was declared the winner.

(2) &bsp; &nbbp;&nnbsp; &nbbsp; Whan>Whether or not Order 5 prohibited the Appellant from having access to the Court to challenge the Orders being in place?n>

In my judgement Order 5 when rerefully does not have that effect at all. In fact Order 5 rr 5 reserved liberty to apply to the Appellant in the event that he was adversely affected by any of those orders. It was a liberty conditional upon something happening to the Appellant. Unfortunately it seems that the Appellant did not make use of that liberty although it seems he was adversely affected by them.

Arising from these was a further issue of whether or not the Orders of 19^th August, 1996 were necessary at all? This question must be considered in the light of the appeal against the decision of the Island Court dated 7^th July, 1993.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The record shows that the Appellant lodged his appeal on 27^th 1993. The effect of the he appeal is that ownership declared in favour of the Respondent is now in question. By Order 60 Rule 7 of the High Court Rules 1964 it is clear that an appeal does not operate as a stay of execution but it is in the discretion of the Court to so order. In Vanuatu land is a very important asset and it is a very sensitive matter. Whenever there is an appeal against the decision of an Island Court, commonsense and wisdom should prevail that the decision ought to be stayed pending determination of the appeal.

The effect of a stay of orders is that all parties d continue to enjoy the land but that there be mutualutual respect for each others rights pending the final decision. For these reasons the Orders of 19^th August, 1996 were therefore not necessary.

In my judgment, the Appella appeal should act as a stay of execution of the Orders of the Island Court Orde Orders of 7^th July, 1993, and I so rule.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> This Appeal therefore is allowed with costs awarded to the Appellant. However the court is of the view that it should issue alternative orders to maintain and preserve the status quo as between the parties. The Orders are as follows:-

lass="MsoNoMsoNormal" style="text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (1) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;; sp; Than>There shall be no new developments whatsoever bher t Appellant, his agents, servants or representatives on Sakau Island pending ng t the final determination of the appeal or until further order of this Court.

(2) &nbsp &nbbp;&nnbp;& &nbbsp; &nbp; p; Theall bell be no new developments whatsoever by either the Respondents, their agents, servants or representatives onu Isl ng the final determination of the appe appeal or until further order of this is C Court.

p class="MsoNoMsoNormal" style="text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (3) &nsp; & p;&nbp; &nsp; &&nbp;;&nbpp; &n sp; The Appe Appellant and the Respondents are entitled to the quiet enjoyment e Islithouerferith ethersts, or harassirassing, threatening or abusing each each othe other.

/p>

(4) &&nsp;;&nspp;&nssp; p; Liberty is granted to Parties to apply where respective rights ated.n>

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DATED at Luganville 18^th day of October, 2000.

BY THE COURT

OLIVER A. SAKSAK

Judge