Livo v Boetara Trust [2002] VUSC 51; SC 051-01 (28 January 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)
Civil Case No. 51 of 2001
BETWEEN:

PAUL LIVO

Plaintiff/Applicant
AND:

BOETARA TRUST

First Defendant
AND:

DIRECTOR OF LAND RECORDS

Second Defendant

Coram: Before Justice Oliver A. Saksak
Mandeng M. John – Clerk

Counsel: Mr Ronald of Counsel for the Applicant
Mr Bill B. Tamwata for the First Respondent

Date of Hearing: 21st January, 2002.

RULING

The Applicant sought leave to appeal against the Judgement of this Court dated 22^nd November, 2001 by way of a summons dated 20^th December 2001.

In the judgment the Court dismissed the Plaintiff’s ex-parte application for various restraining orders against the Defendants. The Plaintiff had not filed an Originating Summons or a writ of summons prior to making the application for restraining orders. Neither did he provide an undertaking to file a cause of action later. At the date of the Plaintiff’s summons seeking leave to appeal he had no cause of action in place.

The principles as regards injunctions both interlocutory and permanent are laid down in the case of Tony Deamer v. Unelco Management 2 VLR 554 at p.557. During the course of his submissions I specifically questioned counsel for the Applicant whether or not he was aware of the case. From his reply it appeared that he was not familiar with the case and the principles laid down therein. It was in the light of these principles that I exercised my discretion dismissing the Plaintiff’s summons with costs.

The Plaintiff submits that that exercise of discretion was used incorrectly. I however accept Mr Tamwata’s submissions that the Court had exercised its discretion correctly. That is the only issue I have to decide here. I am not persuaded by the Plaintiff’s submissions to grant leave for him to appeal. For those reasons I dismissed his summons. As he has given an undertaking as to costs and damages the Plaintiff will have pay the First Defendant’s costs of the hearing.

PUBLISHED at Luganville this 28th day of January, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge