Family Morris Bule v Family Ron Tematamtam [2006] VUSC 55; Land Appeal Case 052 of 2003 (19 July 2006)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

LAND APPEAL CASE No.52 of 2003

In the matter of: Three Applications to join in Land Appeal Case No.52 of 2003 by:
Joseph Rauban
Amon wari
Joel Tamtam
as Interested Parties/Intended Appellants

BETWEEN:

FAMILY MORRIS BULE
Appellants

AND:

FAMILY RON TEMATAMTAM
Respondents

Mr Silas Hakwa for the Appellant
Mr. Daniel Yawha for the Respondent
Mr Willie Daniel for Joseph Rauban, Interested Party/Intended Appellant
Mr Felix Laumae for Amon Wari, Interested Party/Intended Appellant
Mr Saling Stephens for Joel Tamtam, Interested Party/Intended Appellant

JUDGMENT ON COSTS

This is a judgment on costs. The facts are spelt out in the Judgment of the Supreme Court in Land Appeal No.52 of 2003 delivered on 9 June 2006. The Appellants submit they are entitled to their costs of appeal against the Respondent. They also say they are entitled to their costs against the Interested Parties. The submission is advanced on the basis that their appeal is successful and the applications of the Interested Parties fail and the relief sought by each of them, are refused.

The Respondent made submissions to the contrary. They say that the Appellant should not be awarded costs and each and all parties should pay their own costs.

Mr Saling Stephens made submissions on behalf of Joel Tamtam. Although a written submission was made and submitted to the Court on different grounds, although they are difficult to justify, it is understandable as Mr Saling Stephens was involved in the proceedings at a very late stage of the proceedings.

Mr Joseph Rauban and Mr Amon Wari do not make a submission as to costs.

The Court has complete discretion over the costs of the proceeding, subject to the express provisions of the rules or of any statutes. The Judge in his discretion may say expressly that he makes "no order as to costs". If he does make an order as to costs the general rule is that he shall order the costs to follow the events, except when it appears to him that in the circumstance of the case some other order should be made as to the whole or any part of the costs. But, however, the Judge must not apply this or any other general rule in such a way as to exclude the exercise of the discretion entrusted to him; and materials must exist upon which the discretion can be exercised and it must be exercised judicially and the Judge ought not to exercise the discretion against the successful party, except for some reason connected with the case.

In the present case, I should look in the first place, at the result of the action itself, namely, the findings of facts, and I should look also at the conduct of the parties to see whether either of them had in any way involved the other unnecessarily in the expense of litigation, and beyond that I should consider all the facts of the case so far as no particular fact was concluded by me as the Judge of facts.

Applying the above guideline to the appeal proper in the proceedings, the appeal is allowed on a technical point. The appeal is not determined on merit. The Appellant and the Respondent are to pay their own costs of the proceedings in the appeal.

However, on the facts as submitted the Interested Parties come in the proceedings at a very late stage. The delay occasioned increase substantially the time spent in the overwhole proceedings. The evidence shows that Amon Wari was informed, aware and involved in the appeal process before he filed his application to be joined as a party in the appeal.

The Appellant filed responses and sworn statements in objection to the applications of the Interested Parties. The applications of the Interested Parties were rejected. The Appellants are entitled to costs against the three (3) Interested Parties: Joseph Rauban, Amon Wari and Joel Tamtam. I make a special Order for costs against them. I assess and fix a lump sum of VT220,000 and order as follows:

• Amon Wari to pay VT100,000;
• Joseph Rauban to pay VT60,000;
• Joel Tamtam to pay VT60,000.
  

By 17 August 2006.

Before the Court rises, Mr Silas Hakwa raises and applies orally for the refund of the Appellants’ trial fees. The Court orders that the Appellants are entitled to a refund of ⅔ of the total of their trial fees.

However few minutes after the Court rises, it has become to my mind that there was a misapplication of the Rules of the Supreme Court.

I then direct Mrs Marilyne Sese, acting as the Clerk of the Court, to recall all the counsel for the order of refund to be vacated. All counsel were left except Ms Marie Hakwa on behalf of the Appellants. She was called in Court with all the Appellants and the Respondents. The Court, then formally makes an order to vacate the previous Order to refund ⅔ of the trial fees of the Appellants.

DATED at Port-Vila this 19th day of July 2006

BY THE COURT

Vincent LUNABEK
Chief Justice

ORDERS

The Court makes the following Orders:

1. The Appellants are entitled to a lump sum of Vatu 220,000 against the Interested Parties: Amon Wari, Joseph Rauban and Joel Tamtam.
   
2. The payment of VT220,000 shall be made as follows:
   • (a) Amon Wari to pay VT100,000
   • (b) Joseph Rauban to pay VT60,000
   • (c) Joel Tamtam to pay VT60,000.

By 17 August 2006.

3. The Court order (oral) to the effect that the Appellants are entitled to the refund of ⅔ of their trial fees is hereby vacated, as it is contrary to the Civil Procedure Rules [R.4.12(3)(i)] and counsel for the Appellants should never make any such an application in the first place.
   

DATED at Port-Vila this 19th day of July 2006

BY THE COURT

Vincent LUNABEK
Chief Justice