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Popovi v Manapangarasikai [2000] VUSC 19; Civil Appeal Case 165 of 1997 (27 April 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

Civil Jurisdiction
CIVIL APPEAL CASE No. 165 of 1997

BETWEEN:

Chief Andrew Popovi
First Appellant

AND:

Saniel Daniel Popovi
Second Appellant

AND:

Ezron Manapangarasikai
Respondent

REASONS FOR JUDGMENT

This is an appeal against a decision of the Magistrate Court dated 18^th day of November 1997 in which His Worship Magistrate Jerry Boe, issued certain injunctive orders restraining the appellants, their families, agents and friends, not to occupy, make gardens and build houses on the land owned by the respondent.

The grounds of appeal are set out in the Notice of Appeal.

The appeal is set for hearing on 27 April 2000. The respondent was not present. The matter was then adjourned for 30 minutes. A sworn affidavit of service dated 26 April 2000 was filed by the Supreme Court Sheriff, Jimmy Toara, that he did personally served the respondent Ezron Manapangarasikai on 19 April 2000 at Port-Vila. This is evident from the signature of Ezron Manapangarasikai as the recipient on the said document accepting the service of the Notice of hearing of the Appeal in this case.

I am satisfied that this is a good service. It amounts to a presumption that the respondent is aware of the date and time of the hearing but he does not turn up nor give any information as to his position or whether he needs a lawyer so that opportunity can be given to him.

The Court decides then to proceed with the hearing of the appeal.

Mr. Malcolm submits in substance that in the Magistrate Court, Mr. Dudley Aru of Counsel who appeared for the respondent did not file any affidavit nor call any oral evidence to support the plaintiff/respondent�s claim but what he did was that he did close the plaintiff/ respondent�s case after he made his opening statement.

I have had the opportunity to peruse the records of the Magistrate�s Court File No. 120 of 1996 being the case upon which the learned Magistrate decision was made. The records of the said file show that there was no evidence taken in support of the plaintiff/respondent�s application either by way of affidavit or oral evidence .

It must be understood that the learned Magistrate has the power to grant injunctions. But, such injunction must of necessity be within his jurisdiction and be granted according to the rules of practice [See Civil Case No. 122 of 1992, Tony Deamer-v- Unelco Management, Van.L.R., Vol.2 1989-94, 554(at p.555) ].

It appears that the learned Magistrate had issued injunctive orders on the basis of the opening statement made by the plaintiff/respondent�s counsel without having and/or heard any evidence at all (affidavit or oral) in support of his findings and decision. This is bad because (a) the learned Magistrate�s decision which is the subject of this appeal, is not supported by any evidence and (b) opening statement by counsel to open his client�s case including any statement of fact made by counsel on the bar table about disputed facts, do not constitute evidence to be relied upon by any competent court. The appeal should be allowed.

ORDER

That the appeal is allowed.

That the Writ in Civil Case No. 120 of 1996 be dismissed and this will be so without prejudice to the respondents to file proceedings seeking for injunctive relief before the Supreme Court.

There is no Order as to costs.

DATED AT PORT-VILA, this 27^th DAY of APRIL, 2000

BY THE COURT

Vincent LUNABEK J
Acting Chief Justice

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