Poilapa v Masaai [2015] VUSC 172; Civil Appeal 14 of 2012 (8 December 2015)

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

Civil Appeal Case No. 14 /2012

BETWEEN:

SIMEON POILAPA
Appellant

AND:

KALOKAI MASAAI
Respondent

Hearing: Thursday 26 November 2015 at 2:30 pm
Judgment: Tuesday 8 December 2015

Before: Justice SM Harrop

Appearances: Felix Laumae for the Appellant
Stephen Tari Joel for the Respondent

RESERVED JUDGMENT OF JUSTICE SM HARROP AS TO RESPONDENT'S APPLICATION FOR COURT TO REVIEW AND CORRECT JUDGMENT OF 27 JUNE 2014

1. Justice Spear gave a judgment in this case on 17 December 2012 in which, by consent, he referred the question of the appointment of the paramount chief of Mele Village back to the Efate Island Court with clear directions about the process that it should follow.
   
2. The Island Court issued a judgment on 31 May 2013, the result of which was that the applicant Simeon Poilapa was appointed as paramount chief.
   
3. On the evening of Thursday 26 June 2014, Mr Laumae on behalf of the Mr Poilapa came to this Court and indicated he had an urgent oral application to make relating to an attempt by the respondent, in conjunction with others, to arrange for the respondent to be appointed as paramount chief.
   
4. As a result an urgent ex parte hearing was convened at 8:30 am the following morning. Mr Laumae was not able to be present but Mr Kilu appeared in support of the application. Mr Laumae also filed an urgent written application and a sworn statement of Chief Poilapa in support.
   
5. I issued an urgently-prepared judgment later on 27 June 2014 granting the primary restraining order sought by the applicant but declining to make other orders sought. The order restrained any person from ordaining or attempting to ordain the respondent as paramount chief of Mele Village prior to the death or abdication of the applicant. In making that order I acted on the information provided to me by Mr Laumae and in reliance on the Island Court decision I understood not to have been challenged in any way. As is usual with interim injunctions I directed that the order was only to apply until further order of the Court and granted leave to the respondent to apply urgently for it to be rescinded or varied.
   
6. In fact, an appeal against the Island Court decision appointing Chief Poilapa as paramount chief had been lodged on 7 June 2013, more than a year before Mr Laumae filed the ex parte application. Grounds for that appeal were filed with the Magistrate's Court on 28 June 2013. On 6 July 2013 the respondent applied for a stay of the Island Court judgment and that was granted by the Magistrate's Court on 25 July 2013. On 13 August 2013 the appellant appealed against the stay order and ultimately, but not until 14 December 2014 i.e. well after I dealt with the ex parte application, Justice Aru allowed the appeal against the stay order and referred the matter back to the Magistrate's Court to be heard before a different Magistrate.
   
7. Subsequently on 28 April 2015, Senior Magistrate Moses felt unable to progress the matter in light of the orders I had made on 27 June 2014 but he was informed by Mr Joel that the respondent would be applying to me to review and correct my judgment because I had not been informed about the appeal and the stay issued by the Magistrates' Court.
   
8. The Respondent filed the current application on 13 May 2015. It is opposed by the Appellant.
   
9. At the hearing of the application it became immediately apparent that there was no justification for the application to be opposed. Self-evidently I made a decision on 27 June 2014 in ignorance of the appeal and the stay. I observed indeed as one of the reasons for my decision, in paragraph 16: "If [the respondent] was disappointed by the Island Court decision then he was permitted to appeal to the Magistrates' Court and then potentially again to the Supreme Court. As far as I am aware no such appeal was lodged."
   
10. It was in reliance on that understanding that I made an injunctive order sought by Mr Laumae on behalf of the Mr Poilapa. Had I known of the appeal and the consequent stay order I would not have made any order in favour of the applicant.
    
11. There is a stringent duty on counsel making an ex parte application to inform the Court of all relevant information whether it assists his client's case or not. Mr Laumae should never have made the application without telling me about the appeal having been lodged and the stay order which followed. The fact that his client was challenging the stay is irrelevant. I should have been told about everything which had followed the Island Court decision: instead I was told nothing and was led to believe that the respondent had not appealed.
    
12. What occurred was a form of contempt of Court and certainly a gross abuse of its processes. To put it simply the applicant obtained from me an order enforcing a judgment which he and his counsel knew very well was under appeal and that not only was the appeal unresolved but a stay of enforcement had been ordered. The integrity of the appeal process, the rule of law generally and the Constitution in particular, were all undermined by the order I made in ignorance of fundamental facts at the applicant's request.
    
13. The respondent had properly exercised his right of appeal against the Island Court judgment and properly sought and obtained a stay pending its determination. What the appellant did had the effect of treating that right as non-existent or as having been exercised against him. Respect for the law inevitably breaks down and anarchy may result if the fundamental rights are not respected and accorded proper determination under the rule of law.
    
14. Even if Mr Laumae somehow subjectively thought he was justified in making the application, he should immediately have seen on reading paragraph 16 of my judgment of 27 June that I was under a serious and highly relevant misapprehension about the absence of any appeal and stay. He should immediately have contacted me and invited me to reconsider my judgment.
    
15. Instead, it took an application by the respondent to bring the matter to my attention and, despite my issuing a Minute on 6 July 2015 shortly after I saw the application of 13 May 2015 pointing out that the application appeared to be well- founded, the appellant filed a response opposing the orders sought, a sworn statement by Mr Poilapa in support of that and made written submissions.
    
16. I am satisfied that all of the orders I made on 27 June 2014 must be set aside as having been made on the basis of my ignorance - for which the applicant and his counsel must take full responsibility - as to the appeal and stay order. I set aside all of the orders made on 27 June 2014 accordingly.
    
17. Mr Joel has applied for costs. Though indemnity costs were not sought I am satisfied, having heard from both counsel, that an award of indemnity costs to the respondent against the appellant is entirely appropriate. This application should never have been necessary and, once made, it should never have been opposed. If Mr Laumae had discharged his obligations as counsel properly the original ex parte application would either never have been made or it would have been made with full information and would inevitably have been refused because of the unresolved appeal and the stay. Opposing this application was a further abuse of the Court's processes and caused the respondent to incur entirely unnecessary costs.
    
18. In these circumstances, several if not all of the qualifying criteria in Rule 15.5 (5) clearly apply and I award indemnity costs to the respondent against the applicant. Mr Joel is to submit a bill of costs in taxable form for consideration by the Master.
    
19. I direct that the costs settled by the Master be awarded jointly and severally against the applicant and his counsel Mr Laumae. They can between them decide who pays but each will be liable to the respondent for the full amount. In my view they both have to take responsibility for the unacceptable and improper position in which I was placed but Mr Laumae, as counsel who was or ought to have been aware of the onerous obligation he had as counsel making an ex parte application, must take the lion's share of the responsibility for acting in breach of it.
    
20. I trust the Magistrates' Court will now consider itself free to address the appeal and the challenge to the stay which the appellant wishes to pursue.
    
21. Since the hearing of this application I have seen a letter dated 11 November 2015 from Mele Trustees Limited to the Chief Registrar, signed by Ian Taravaki and Philip Malastapu. It was apparently filed on 17 November but I did not see it until today, 8 December. As a matter of natural justice I will arrange for a copy to be sent to counsel with their copy of this judgment. However it has had no impact on my judgment.
    

BY THE COURT