Marcellin v Martin [2015] VUSC 77; Civil Case 31 of 2011 (3 June 2015)

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

Civil Case No. 31 of 2011

BETWEEN:

ABONG MARCELLIN representing Family Abong
First Claimant

AND:

LITOUNG LUCIEN representing Family Tiosah Damian
Second Claimant

AND:

BLAISE TOKTOK representing Family Toktok
Third Claimant

AND:

KOUBAK MARTIN, KOUBAK MARCEL AND KOUBAK RONO representing Family Koubak
First Defendants

AND:

FIDEL VANUSOKSOK representing Family Vanusoksok
Second Defendant

AND:

ALEX MELEUN AND AIME MELEUN
Third Defendants

AND:

REPUBLIC OF VANUATU
Fourth Defendant

AND:

FRANCOIS BATICK
Prospective Fifth Defendant

Hearing : Tuesday 26 May 2015 at 10:30 am

Before : Justice Stephen Harrop

Appearances:

• Claimants: Evelyn Blake
• First Defendants: James Tari
• Second Defendant and

Prospective Fifth Defendant : Colin Leo

• Third Defendant : No appearance (George Boar)
• Fourth Defendant : Christine Lahua (SLO )
  

Judgment: Wednesday 3 June 2015

RESERVED JUDGMENT OF JUSTICE SM HARROP AS TO FIRST DEFENDANTS' APPLICATION FOR LEAVE TO APPEAL OUT OF TIME

1. On 13 February 2015, the first defendants applied for leave to appeal out of time against my judgment of 27 November 2014. The application is supported by a sworn statement from Marcel Koubak. The application is opposed by the claimants and by the second defendant. There was no appearance at the hearing of the application by the third defendants, for whom Mr Boar acts, and he has filed no document indicating their attitude. The application is not opposed by the fourth defendant which abides the Court's decision.
   
2. Regrettably through Registry error the application was not brought to my attention until late April 2015. As a result the hearing was convened in Chambers for 26 May and written submissions were filed by Mrs Blake in opposition. Mr Tari has not filed written submissions but relies on the contents of the application and of Mr Koubak's statement.
   
3. Following the hearing at my direction he filed a draft notice of appeal containing the proposed grounds of appeal in the event that leave is granted. Mr Leo filed no documents and made no substantive submission at the hearing but indicated his support for Mrs Blake's submissions.
   

Grounds for the Application

4. The first defendants say that they have never received a copy of my judgment of 27 November but learned of the substance of it in early 2015 when the news began to spread around Lamap. Mr Koubak says that the third defendants tried to contact the first defendants' lawyers Kayleen Tavoa and John Timakata without success so that he had to travel to Port Vila to find out what had happened, and did so. On arriving towards the end of January he was surprised to find there were no lawyers in the office, with Mr Timakata having been appointed acting Public Prosecutor and that Ms Tavoa had been appointed as an associate to another law firm, Thornburgh Lawyers.
   
5. Mr Koubak explains that because of this there was no opportunity within the first 30 days from 27 November 2014 to file the appeal.
   
6. Mr Tari says the first defendants had an arguable case but it was inappropriately prosecuted by their previous lawyers. The grounds of appeal are as follows:
   

"1. That Supreme Court err in law and facts in deciding to cancel the Appellant's registered interest in land lease title 09/1542/005 for the reasons the Claimant have interest to invoke the power of the Court under section 100 of the Land Leases Act, whereas in law custom owners issues are not interests that can invoke the power of the court under section 100.

2. That Supreme Court err in law and facts in deciding to cancel the Appellants registered interest in land lease title 09/1542/005 because of the failure of lawyers representing the Appellants to prosecute the Appellants' case where as the Supreme Court did not take into account the merit of the case.

3. That Supreme Court err in law and facts in deciding to cancel the Appellants' registered interest in land lease title 09/1542/005 whereas the Appellants have followed all the procedures and processes leading to registering their interests in the lease.

4. That Supreme Court err in law and facts in deciding to cancel the Appellants' registered interest in land lease title 09/1542/005 whereas all authorities whose names appeared on the department of lands "check list" have all been given approval for the lease to be registered under the appellant's name.

5. Any other and further grounds as may be advance by Counsel."

Submissions in Opposition

7. Mrs Blake submits that the appropriate factors to take into account on such an application were set out by the Court of Appeal in Laho Ltd v. QBE Insurance (Vanuatu) Ltd [2003] VUCA 26. These are: the length of delay, the reasons for the delay, the prospects of success on the appeal if the time for appealing is extended and the degree of prejudice to the proposed respondent if the application is granted. I accept that this is a discretionary decision but that these are the factors which I need to consider.
   

Length of Delay and Reasons for it

8. Mrs Blake submits the delay in applying for leave to appeal is significant; she refers to a period of 78 days. Rule 20 of the Western Pacific Court of Appeal Rules allows 30 days to appeal from in this case 27 November 2014. The last day for filing an appeal was therefore (excluding the day of the decision and allowing for the period expiring on a weekend) 29 December 2014.
   
9. The time of year then needs to be factored in. The Supreme Court and Court of Appeal offices were closed from Monday 22 December 2014 to Friday 23 January 2015. Effectively the office closed on Friday 19 December. Accordingly the deadline for filing an appeal was arguably Friday 30 January. The application for leave to appeal was filed on 13 February 2015, only 14 days later. I do not consider this is a substantial or significant delay.
   
10. As to the reasons for delay, Mrs Blake submitted that because of the "celebrations" in Lamap when the judgment was issued, Mr Koubak must have been aware of the result and he should have contacted his lawyer well before January. I am sceptical that Mr Koubak did not know of the outcome until January but on the other hand there is no sworn evidence from the claimants deposing as to his knowledge or means of knowledge and he denies on oath knowing about the judgment until then. There is also no basis on which I can doubt his evidence that he was let down by his previous lawyers Mr Timakata and Ms Tavoa in not sending a copy of the judgment to him as soon as it was issued, or indeed at all.
    
11. In summary, I am not in a position to reject the reasons for delay provided in evidence and to uphold Mrs Blake's submissions to the contrary.
    
12. These two "delay" factors do not count against the grant of leave.
    

The Prospects of the Appeal Succeeding

13. Any judge considering an application for leave to appeal against his or her judgment is at risk of unreasonable defensiveness and/or blinkered denial of fallibility. However, looking at the matter as objectively as I can, I see no merit in the proposed appeal. Notwithstanding the frustrating procedural history and the apparent poor representation of the first defendants, I considered their position carefully and gave a lengthy reserved judgment explaining why their pleaded defence could not succeed. In short, they purported to grant a lease over the whole of the area of land in question when there was an unchallenged Area Land Tribunal judgment to the effect that they were only custom owners in respect of only one of 36 nasara within that area of land; it constituted but a small part of the land contained in the lease. The grounds of appeal do not identify any basis on which the first defendants were entitled to grant a lease over the whole of the area. Leaving aside the strong suspicion of fraud in this case, I found there was no doubt that the lease was registered by mistake because the first defendants had no right to grant a lease over the extensive area. The grounds of appeal do no articulate any reason why this conclusion was, or even might have been, wrong. In my view the appeal is inarguable because of the unchallenged decision of the Area Land Tribunal in the face of which the lease could not stand.
    
14. This factor points against the grant of leave.
    

Prejudice to the Proposed Respondents

15. Mrs Blake submits that the claimants understandably considered that the matter was – at long last- at an end and that if leave is granted they will incur further costs in relation to an unmeritorious appeal which add to that prejudice. She points to the substantial and repeated delays in this proceeding which have been occasioned by the first defendants.
    
16. On this question I accept there would inevitably be some prejudice to the proposed respondents in leave being granted but it needs to be remembered that the first defendants could have filed without leave an entirely unmeritorious appeal and caused the same prejudice to the respondents if they had filed their appeal on say 29 January 2015; it is only the prejudice resulting from the delay that matters here. Any party to Supreme Court litigation must accept that there is no assurance of finality until the appeal period expires or any appeal is determined. I have already found here that the delay is not substantial.
    
17. On the other hand the appellants are in need of an indulgence from the Court and need to show they should get it.
    
18. More relevantly on the question of prejudice, I was informed at the hearing that the order for rectification of the register by cancellation of the registration of the lease (which was registered on 14 February 2011) has not yet been implemented. It does not appear that the claimants themselves have pushed the matter or, if they have, then the Director of Lands has not acted with alacrity in carrying out the Court's order.
    
19. This factor does not, or at least not significantly, count against the grant of leave.
    

Discussion and Decision

20. In Laho, all the factors pointed against the grant of leave so the Court of Appeal did not have to consider how the discretion ought to be exercised where they point in different directions. Here, three of the relevant factors point towards leave to appeal being granted, or at least do not contain significant reason to decline it, but the fourth (prospects of success) points firmly against it. The question therefore arises: should the proposed respondents be taxed with (what I consider) an unmeritorious appeal just because an application for leave was made within a fortnight or so of the deadline for filing without leave, reasons are given for that delay and there is little prejudice if leave is granted? There are clearly justifications for both affirmative and negative answers.
    
21. On balance and in the exercise of my discretion I have decided by a small margin to grant leave to appeal notwithstanding my view about the prospects of success.
    
22. As I have already noted, any respondent has to face the prospect of dealing with an unmeritorious appeal if it is lodged within time and this appeal is not unduly late. No step appears to have been taken in reliance on the judgment under challenge which would lead to prejudice to the proposed respondents if leave to appeal is granted.
    
23. I take into account that there is a Court of Appeal session starting on 13 July 2015 and that a decision on this appeal, assuming its proper prosecution, ought to be available on Friday 23 July 2015 at 4pm. Given the long history of this matter it seems to me that that is not too much longer for the proposed respondents to wait for finality.
    
24. This is a land case. It is generally desirable that such cases are decided on their merits rather than by reference to procedural shortcomings. It is relevant that the proposed appellants say they have been let down by their lawyers both before and since my judgment was issued and would have given instructions to appeal in time had they not been. However objectively unjustified holding such a view might be, if leave is declined, the proposed appellants, being ordinary citizens from South Malekula, may feel they have been victims of "the (legal) system" as applied in Port Vila. They are far more likely to accept an adverse result, if such it be, if it follows careful consideration of the merits by the Court of Appeal. In that sense, granting leave may even assist the proposed respondents in the long run.
    
25. I also take into account that if I decline leave it is almost inevitable that the first defendants would then immediately apply to the Court of Appeal for leave, which would mean the proposed respondents having to deal with at least that application afresh in the July session. Given the shortness of such sessions they would need to allow for the possibility that leave is granted and to prepare to argue the appeal. It is better for them to know well in advance that they will need to do so. Further, if I declined leave but there was an application to the Court of Appeal, I would as a matter of fairness be obliged to grant a stay of the execution of the judgment pending the determination of that application.
    
26. For these reasons I grant leave to appeal but reserve all questions of costs pending its outcome. Enforcement of the judgment is stayed pending the outcome of the appeal but strictly on the condition that the proposed appellants do everything in their power to ensure the appeal is heard in the July session, including strictly complying with all directions by the review judge.
    

BY THE COURT