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Simeon v Family Rakom [2004] VUSC 45; Civil Case 121 of 2004 (3 September 2004)

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

Civil Case No. 121 of 2004

BETWEEN:

SIMEON, PAUS, CHARLIE, JOHNNY, LAEKE, JOSEPH, SAMOSAU, NALU, NAMBI, JOE, TOM, JOHNNY & PHILIP
Appellants

AND:

FAMILY RAKOM, FAMILY KALMALAP, FAMILY MALASIKOTO, FAMILY NAPAU, FAMILY MASAI, FAMILY LANGA, FAMILY TARIPAKOA, FAMILY MATAUTAVA, FAMILY MALAS, FAMILY PANGALULU, FAMLY LANGIATU & FAMILY SOPE
Respondents

Coram: Justice Treston

Mr. Nakou for Appellants
Mr. Roper & Mr. Leo for Respondents

Date of Hearing: 20 August 2004
Date of Decision: 03 September 2004

JUDGMENT ON APPEAL

MAGISTRATES' COURT ACTION

In a Magistrates' Court claim filed on 30 October 2003, the Claimants alleged that they were the custom owners of 420 hectares of land at Snake Hill, Efate (the property).

In a statement of defence filed on 18 February 2004, the Defendants admitted that allegation.

The Claimants further alleged that various times from in or about 1980, the Claimants permitted the Defendants to occupy the property. That was admitted by the Defendants.

It was further alleged that on various occasions since in or about 1999, Chief Poilapa II, on behalf of the Claimants, requested the Defendants and certain illegal squatters occupying the property to leave the property. That allegation was admitted.

It was further alleged that despite such requests, the Defendants and the squatters continued to unlawfully occupy the property which caused considerable distress not only to the Claimants but acrimony and social unrest between the Claimants' families and the Defendants and the squatters who were unlawfully occupying the property. That was admitted.

The Claimants also alleged that they had suffered loss and damages and continued to suffer loss and damages as a result of the occupation. That was denied by the Defendants.

The Claimants sought an order evicting the Defendants and any other persons who were unlawfully occupying the Claimants' property at Snake Hill and an order restraining and prohibiting the Defendants, their families, servants or agents from entering upon the Claimants' property and from harassing or in any way interfering with the Claimants, their families, lawful servants or agents and their quiet and peaceful enjoyment of the property. The Claimants sought damages and other relief and costs.

In their defence the Defendants counter-claimed for the work that had been done on the property and for their gardens and crops including fruit trees and cash crops. A defence was filed to the counterclaim.

Subsequently the Claimants filed an application for summary judgment. In an order of 6 April 2004 documented in writing 7 April 2004, the Magistrate ordered as follows: -

"1. Each and all the Defendants are to vacate the properties owned by the Claimants at Snake Hill, by on or before 7 June 2004;

2. The Claimants have leave, so far as leave is necessary, to issue an Enforcement Warrant on 8 June 2004 requiring the Sheriff to forcibly remove any Defendants remaining in occupation of the Claimants' properties contrary to Order 1 above;

3. That on and from 8 June 2004, the Defendants, their families, servants and agents be restrained from entering upon any property owned by the Claimants and from in anyway interfering with the Claimants, their families and the Claimants' lawful servants or agents quiet and peaceful enjoyment of the Claimants' properties at Snake Hill, Efate;

4. The Defendants to pay the Claimants' costs and incidental to the Application for Summary Judgment which costs are to be assessed at the next hearing of the matter, 6 July 2004;

In a further order of 8 June 2004, the learned Magistrate ordered:-

"1. That the eviction order issued 6 April 2004 be stayed for 7 days as from the date of this order.

2. That within this 7 days the defendants must filed (sic) an appeal to the Supreme Court.

3. Failure to file an appeal within this period will result in the police effecting the order issued on 6 April, 2004 and evict all the defendants, their agents, friends and families.

4. Under Schedule 2 paragraph 9 of Rule 15.10, defendants are hereby ordered to pay VT30, 000 costs within 3 weeks as from the date of this order.

5. Returned (sic) date of 6 July, 2004 issued on 6 April, 2004 is hereby quashed. Next return date will be advised."

APPEAL

It is against the orders of 7 April 2004 that the Appellants appeal on the basis that summary judgment should have never been entered as there was a substantial dispute concerning both law and fact.

SUBMISSIONS

The Appellants submitted that Magistrates' Court had no jurisdiction to evict the Appellants because they had no proper title to the customary land and the Magistrate's Court had no jurisdiction to make such orders under the law.

The Appellants further submitted that there was clearly a dispute over the property which must be brought before a proper tribunal and determined before orders could be made. In other words no eviction orders could be made because the Appellants right to possession prevailed over the ownership of the Respondents until appropriate orders had been made by the Courts.

It was submitted that the Magistrate should have referred the matter to the Supreme Court for a decision, and until then it was only the Ministry of Lands who could have general management and control over the land.

On the other hand, the Respondents submitted the appeal had been filed out of time. The Respondent further submitted that if the appeal was held not to be out of time, there was no merit in the appeal justifying the orders being set aside.

LAW

Rules 16. 28 of the Civil Procedure Rules No. 49 of 2002 provides that in relation to an appeal from a Magistrates' Court an appeal is made by filing and serving an application within 28 days of the date of the decision.

It is clear that under Rule 16. 26 a decision means a judgment or a final order of the Magistrates' Court.

Rule 18. 1 provides that the Court may on its own initiative or on an application of a party extend or shorten a time set out in the Rules for doing an act.

Rule 9.6 of the Rules deals with summary judgment where the Claimants believe that the Defendants do not have any real prospect of defending the Claimants' claim.

Rule 9.6 (7) provides as follows:-

"If the court is satisfied that:

(a) the defendant has no real prospect of defending the claimant's claim or part of the claim; and

(b) there is no need for a trial of the claim or that part of the claim, the court may:

(c) give judgment for the claimant for the claim or part of the claim; and

(d) make any other orders the court thinks appropriate."

Rule 9.6 (9) provides as follows: -

"The court must not give judgment against a defendant under this rule if it is satisfied that there is a dispute between the parties about a substantial question of fact, or a difficult question of law"

FINDINGS

It is clear that this appeal has been filed out of time. The decision was clearly given on 6 April 2004 and certainly confirmed by the written orders of 7 April 2004 meaning that the appropriate time for filing any appeal under the Rules was 5 May 2004. In the present case the Notice of Appeal was not filed in the Court until 15 June 2004. It was well outside the time allowed for by the Rules.

Counsel for the Appellant argued that the orders made by the learned Magistrate on 8 June 2004 somehow gave the Appellants the right to file an appeal out of time. That is clearly not the case. The learned Magistrate had no jurisdiction to make such an order and any application for leave to appeal out of time would have needed to have been made to the Supreme Court. No such application has been made.

While the Supreme Court has the jurisdiction to extend the time for filing of any appeal of its own initiative in relation to an appeal that would be most unusual. In Kalsakau v Hong & Ors [2004] VUCA 2; CAC No. 30 of 2003 the Court of Appeal held that in relation to appeals from an Island Court in land matters strict compliance with appeal time provisions is essential. In this case there has been no leave sought to appeal out of time. Thus in this case is there is no explanation or reasons given why an extension might be sought nor for any reasons for the delay in filing the Notice of Appeal.

It is clear from decisions such Court of Appeal in Aru v Vanuatu Brewing Ltd [2002] VUCA 43; CC No. 21 of 2002 that there must be an acceptable excuse for delay and the Court must be satisfied that there is arguable merit in the proposed appeal. Specifically the Court said this:-

"The time limit for bringing an appeal from a final decision is imposed to bring about finality between the parties. Before the time limit will be extended the proposed appellant has to show an acceptable excuse for the delay, and the Court must be satisfied that there is arguable merit in the proposed appeal. The power to extend time is discretionary. In the usual case, the stronger the prospects of the appeal succeeding, the more likely it is that the Court will exercise its discretion in favour of extending time. The Court will also be influenced by the length of the delay and the explanation for it."

Here of course as I have said there has been no application and there is no evidence showing any acceptable excuse for the delay. I shall turn to the question of arguable merit in the proposed appeal shortly.

I also agree with the Respondents ' submission that the Court should not extend the time for filing the appeal of its own initiative in these circumstances.

That of itself is sufficient reason for dismissing the appeal but for completion I turn to the question of the merit of the appeal.

It is perfectly clear that orders of the learned Magistrate were properly made. The above Rules state that an application for summary judgment can be made where the Claimant believes that the Defendant does not have any prospect of defending the Claimant's claim. In view of the pleadings, the learned Magistrate was clearly able to reach that view and, there is clearly no dispute between the parties about a substantial question of fact or any difficult question of law. The Defendants admitted most of the allegations. Even in their own sworn statements the Defendants state " I am happy to leave the land".

The issue of the counterclaim for damages is still at large and can be determined in due course by the learned Magistrate.

The claims for eviction were within the jurisdiction of the Magistrates' Court. In that regard I refer to Section 1 (b) of the Magistrates' Court (Civil Jurisdiction) CAP. 130 which provides: -

"JURISDICTION OF MAGISTRATES ' COURT IN CIVIL MATTERS

1. Every magistrate's court established pursuant to section 1 of the Courts Act, Cap. 122 shall have jurisdiction to try all civil proceedings-

(b) relating to disputes between landlords and their tenants where there is no claim for damages or compensation or if there is such a claim if the value does not exceed VT2, 000, 000."

None of the claims exceed that jurisdiction.

In addition there is no evidential basis for the Appellants' contention that there is a dispute as to the custom ownership of the land and in their pleadings, the Appellants have specifically agreed to the allegation that the Respondents are the custom owners.

Finally the submissions in relation to the Land Reform Act CAP. 123 made by the Appellants have no relevance.

It is clear that the Appellants have also endeavoured to raise new issues on appeal which is inappropriate. That was underlined in the case of Neel & Ors v Blake & Ors [2004] VUCA 6; CAC No. 33 of 2003 where the Court said at page 27: -

"Where a civil claim is pleaded and presented on one basis, it is only in an exceptional case that an appellate court will consider a reformulation of the claim on a different basis which was not before the trial: see University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481. This may be permitted where the new formulation seeks to apply a different legal interpretation to a document or the law and where the changed formulation does not raise any new factual issue or seek to qualify findings of fact in a way that could have been addressed by the parties in evidence at trial. But where a party has presented a case on one basis, and the other side has led evidence and presented its case in response, and has not addressed factual issues raised by the alternative approach, an appeal court will hold the first party to the way in which the case was presented at trial. This is particularly so where it is likely that the case was presented at trial in that way to gain some tactical advantage."

I find that, even had the appeal been filed within time, it had no merit.

CONCLUSION

For the above reasons, the appeal is dismissed. The enforcement orders of the Magistrate were valid and are upheld. I direct that the case be remitted back to the Magistrates' Court for hearing of the claim for damages and the counterclaim in due course.

I will hear from counsel at the conclusion of this written decision as to what course the Court is invited to take as in relation to the form of the orders and the question of costs.

Dated AT PORT VILA, this 03rd day of September 2004

BY THE COURT

P. I. TRESTON
Judge