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IN THE COURT OFAL OF
<
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
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lang="EN-GB" style="font-size: 12.0pt">CIVIL APPEAL CASE No.22 of 2001
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BETWEEN:
Mr. JOHN ATEL
n>of LuganLuganville Santo
in the Republic of Vanuatu
Appellant
AND:
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DICKSON MASSING and PAUL
MASSING
both of North East
Ambrym in the Republic of Vanuatu
Respondents
Coran. Chief Justice
Vincent Lunabek
Hon. Justice John von Doussa
Hon. Justice Reggett Marum
Counsels: Mr. M. Saling Stephen
for the applicant
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Mr. Jack Kilu for the
respondents
Date of Hearing: 02 November
20pan>
Date of Judgment: 02 November
2001
RE JUDGMENT
There is before the
Court an urgent application for leave to appeal. The application in
paragraph 1 reads:
&nnbsp;; nbsp;nbsp;&nbp; &nnbsp; � at that the Supe Supreme Court Order dated 17 September 2001 for this eviction of
the
applicant and those he
represented be stayed until the applicant�s appeal has been determined by
the Court of Appeal.�
This matter arises
out of a long and listed a dispute over some land named as Barereo land. The
matter first reached the
Courts in 1998 when on 28 May 1998 a decision was
given in the Magistrate Court at Lunganville, Santo by Magistrate Steve Bani.
After some procedural difficulties, it was determined that a Notice of
Appeal had been filed in the matter and it came
on for hearing ultimately as
an appeal from the Magistrate�s decision before Justice Coventry who gave
judgment on 26
June 2000. In the Magistrate�s Court the present applicant
had sought damages for trespass to land and goods from the respondents.
And
he was successful before the Magistrate.
In the course of
interlocutory proceedings b the matter was actually hely heard by Justice
Coventry, it became clear that
the dispute was not over the whole land of
the Barereo land but only over a portion of it which has been variously
described
about in a Memorandum of the relevant Chiefs it is described as
the Loliol land.
<
In hisons for
decision Justice Coventry held that the effe effect of the Magistrate�s decision
was to decide the ownership
of not only the Loliol land but all of the
Barereo land to so resolve an ownership question relating to a custom land
was beyond the jurisdiction of the Magistrate�s Court. It was a matter that
should have been otherwise determined first by
the decision of the relevant
Chiefs and then if necessary on appeal by the Land Court.
His Lordship
therefore allowed the appeal and gave directions to have the dispute about
ownership brought first before
the relevant Chiefs and if necessary then
before the Land Court. His Lordship endeavoured to frame orders that would
hold the peace between the parties pending ultimate resolution of ownership.
To that end he made Orders in the following terms:
�2.   &nbssp; The
e
question of ownership in custom of Barereo land and the various parts of it
and the validity
in custom of the agreement between John Atel and Sisikon dat Dece1995 is95 is referred to the North Ambrym Counciluncil of C of
Chiefs for
resolution, if possible.
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The Council of
Chiefs is asked to inform torm the parties in writing of its decisions by 17
April 2001.
The matter was
brought back again before Ju Coventry for further interinterlocutory Orders
which he made on 17 September
2000. On that occasion he stayed the
paragraphs 2 and 3 of the Order of 29 June 2001 and gave directions as to
the consequence
of that Order for stay. Those directions are in the
following terms:
�1.2
(a) &nsp; & &nbbsp; &nbp; Jop; John Atel and his faaily and those he represents must vacate
the Land known as
Barereo and which is declared by paragraph numbered �3� of
orth m Couof Chiefs decision of 4th April 2001 to
belong long to otto other people by 3PM on Tuesday 9 October 2001.
(b) ;&nbssp; &nsp; &nbs; &nb p;
/s They must do t do this peacefully and not damage the Land or anything on
it or growing on it.
ass="dyTexyle="line-height: normal;in-to margin-bottom: 1">: 1">
<
(c) &&nsp;;&nspp;&nssp;
p;
John Atel and those he represents are hereby restrained from
re-entering the land after 3.00pm, on Tuesday 9th October 2001
until further Order of this Court./b>
1.3 &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;&
Dicksonckson Massing and other person described in paragraph numbered �3�
of the Council�s decision may take possession o Land.00
pn
Tuesday 9 October 2001 according ding to thto the owne ownershiership set out in
paragraph 3 in the Council�s decision.�
The decision of the
North Ambrym Chiefs and in palar paragraph 3 to which Hich His Lordship�s
Order refers is in the following
terms:
�3.   &nbssp;&nnbp; Kot
t
imas diklearem Family Massing hemi kastom ona blong Loliol, Family Sawan
Sali hemi kastom
ona blong Ranbetetan, Sanel Tobolli hestom blong Taron mo Family Tefonbu hemi hemi kast kastom ona blong Binbang evriwan oli
stap stap
insaed long eria blong Barereo.�
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We return to the
terms of the paragr of the application before fore us today. On questioning
Mr. Saling Stephens who has
appeared for the applicant he has informed the
Court that the appeal to which he refers is an intended appeal against the
Order of 17 September 2001. No such appeal has yet been filed. That is
recognized by paragraph 2 of the Order which seeks
leave to appeal. But in
substance the applicant is seeking leave to appeal from an interlocutory
decision which was made
in the Order of 17 September 2001. The difficulty
which faces the applicant is that the Order of 17 September 2001 is itself
not more than a variation of the Order of 29 June 2001. Further the Order of
2001 was itself ancillary in so far as it
dealt with an occupation and
possession of the land to the resolution of the appeal from the Magistrate�s
Court.
This Court, in
Frederick Brysten v. Simon Dorsen in Civil Appeal No.5 of 1997,
explained that the Court of Appeal has no jurisdiction to hear an appeal
from a single
Judge of the Supreme Court who has sat in the appellate
jurisdiction from a Magistrate�s Court. In short the decision of a
single
Judge of the Supreme Court on appeal from a Magistrate�s decision is final.
At page 6 of the
decision in Brysten v. Dorsen this Court observed that ther there might be
important special questions
of law that were worthy of the consideration of
the Court of Appeal and that Parliament might consider amending the relevant
legislation to allow a further appeal to this Court by leave. However there
has been no such amendment in the meantime
with the consequence that this
Court cannot entertain an appeal from the decision of a single Judge who has
decided a
Magistrate�s Court appeal.
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In our opiif
the Court of Appeal is deprived of jurisdiction toon to hear the substance of an
appeal from the decision
of the single Judge, in no circumstances the Court
cannot have and cannot assume jurisdiction to deal with an ancillary matter
arising out of the disposal of the Magistrate�s appeal by the single Judge.
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It follows therefore
that we are of the opinion that we do not have have jurisdiction to entertain the
present application
for leave. And for that reason alone the application
must be dismissed.
We add however that
we have spent sometime in discussion with counsel in an endeavour to
understand the underlying issues.
If the Court had jurisdiction it would not
grant leave to appeal against an interlocutory Order unless there were
reasonable
prospects of success in the appeal. In other words the Court
would need to be satisfied that there was a real issue that needed
to be
resolved which had a prospect of succeeding. Moreover there are additional
rules which the Court observes in considering
applications for leave to
appeal against Orders of that kind. Leave will also only be granted where
some substantive
right is seriously involved. That particular requirement
will be met in this case.
However, we do not think that there is any reason to doubt that the discretioretion to stay the
Order for possession which
was made by the Judge was properly exercised in
the first instance. We would therefore not give leave to appeal even if the
Court had jurisdiction.
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There is however one
matter that we s mention. The discussion wion with counsel has indicated
that the real dispute between
the parties is confined to a portion only of
the Barereo land sometimes referred to as the Loliol land and was so
described
in the Council of Chiefs� report dated the 4 April 2001. Moreover
it appeared from discussions that the parties are closely
related and in the
youth all lived happily on the same Barereo land.
In consce of
the decision in the Magistrate�s Court the resp respondent�s were removed from
some part of the Barereo land
and presumably from some of the improvement
thereon on 4 November 1998. As we understand the intent of the substantive
Orders which have been made on 29 June and 17 September 2001 it is that the
respondents, Dickson Massing and Paul Masseng
be returned to the possession
of that which was taken away from them on 4 November 1998 and not that they
and their followers
be given possession of the Barereo land to the exclusion
of John Atel and his followers from the whole of Barereo land.
As we understand the
position, Coventry J ntending that the parties bies be returned the position
before the Magistrate�s
Court proceedings. That would be a position, as we
understand the position, John Atel and his followers would occupy some of
the Barereo land and Dickson Massing and Paul Masseng and their followers
would occupy other parts. If that is the intent
of the Order that have been
made by Coventry J, it is our view that the Writ of Possession which now
lies on the Court
file, it appears at page 25 of the appeal transcript, does
adequately describe the land and the intent of the Writ of Possession.
A
Writ of Possession should be in term sufficiently definitive for the
executing Bailiff or Police officer to understand
precisely what is required
and also to the parties upon whom the Writ is executed to know clearly what
the Order of the
Court requires of them.
In our opinion the
general reference in tit of Possession to the Bare Barereo land at large
does not implement the intention
of the Orders that were made by Coventry J
on 29 June 2001 and 17 September 2001. Although this Court does not have
jurisdiction
the Court proposes to request the Registrar in her
administrative capacity to have the Writ held for 21 days by the Police
who
presently have it in Santo to enable the parties to have the matter further
considered by Coventry J with the view
to redrafting the terms of the Writ
of Possession. This Court is not suggesting that the substantive intent of
the Orders
is in anyway deficient but we think that the actual description
of the Writ requires attention.
For the reasons
given the application for leave to appeal wial will be refused. There is no
application for costs, a wise
decision in all the circumstances by Mr. Kilu.
There will be no Order for costs. And we simply add that this type of family
dispute should be resolved within the custom avenues that are available
because the jurisdictions of the Court and the
type of Orders which the
Court can make are not likely in the long run to give any degree of
satisfaction to the parties.
DATED at
T-VILA, this 2 NOVEMBER, 2001
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BY THE COURT
Vincent LUNABEK
CJ
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