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Nasse v Community of Ienbitoka [2003] VUSC 40; Civil Case 032 of 2003 (22 July 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT ISANGEL, TANNA
(Civil Jurisdiction)

CIVIL CASE No. 32 of 2003

BETWEEN:

FRED NASSE
First Appellant

AND:

MEMBERS OF FRED NASSE’S MOVEMENT
Second Appellant

AND:

COMMUNITY OF IENBITOKA
Respondent

Mrs. Mary Grace Nari for the appellants
Mr. Willie Daniel for the respondent

JUDGMENT

This is an appeal against the interlocutory Orders made by the Senior Magistrate’s Court on 14 February 2003. The hearing of this appeal took place at Isangel, Tanna and the decision is delivered at Isangel, Tanna on 22 July 2003.

The reasons for the judgment are set out below.

The interlocutory Orders of 14 February 2003 are in these terms:

“1. That all parties (applicants and respondents) now living on the subject land and any others intending to live on such land shall within 2 weeks from the date of this Order vacate the land and remove all personal properties with minimum destruction to the land.

2. It is hereby further ordered that as of the date of this Order all parties are restrained from making any new gardens, erecting houses of whatever structure, or such other development whether of a commercial nature or otherwise pending determination of land ownership.
3. For the avoidance of doubt Order No. 2 above does not apply to the harvesting of existing produce on the subject land such is authorized until all produce are harvested/depleted.
4. That derogation of any of these Orders may be sanctioned by contempt of Court proceeding.
5. Parties are at liberty to apply with reasonable notice.
6. This Order shall take effect forthwith and discharge on a date that ownership of land is declared, or Orders varied by a Court of competent jurisdiction whichever first occur.
7. Party to pay own costs.”
   

The appellant seeks Order from this Court to the following effect:

“1. Appeal allowed;

2. The Orders dated 14^th February 2003 be set aside.
3. The respondent be ordered to pay the appellants’ cost of and incidental to this appeal.”
   

On 22 July 2002, the plaintiff now respondent in this appeal, filed an urgent Ex parte Summons seeking injunctive relief before the Magistrate’s Court.

On 19 September 2002, Senior Magistrate Kewei Kawi-iu issued the following Orders:

“1. The first and second defendants until determination of the plaintiff’s substantive action to be filed be injunctive and/or restrained from doing any or all of the following:

(a) Purporting to continue to live, assemble, camp and or gather together in and or around the area/boundary of the custom land known as Eenikahi at Whitesands area in Tanna.

(b) Purporting to build any structures whether be it permanent or not (i.e. houses, shelters etc.) on the custom land Eenikahi at Whiteshands area in Tanna.

(c) Purporting to clear bush, cultivate and or develop the custom land Eenikahi at Whitesands area in Tanna and make gardens thereon.

(d) Causing any damage to and or harvesting gardens of the landowners that other people that have good gardens on the custom land Eenikahi at Whitesands area in Tanna.

2. The first and second defendants shall immediately leave/move out/vacate themselves and their personal belongings peacefully from the custom land Eenikahi at Whitesands area in Tanna back to their respective villages.
   
3. If there is/are any breach(es) of these Orders by the first and or second defendants, the Vanuatu Police Force shall arrest the person(s) concerned and charge them with contempt of Court.”
   

On 9 October 2002, the respondent’s counsel filed an Exparte Notice to execute the interlocutory Orders of 19 September 2002.

On 17 October 2002, the Magistrate’s Court issued an enforcement Order.

On 19 December 2002, the defendants, now appellants filed a Notice of Appeal before the Supreme Court.

On 4 February 2003, the Supreme Court directed the appellants’ counsel to apply before the Magistrate’s Court to stay the execution of the interlocutory Orders.

On 5 February 2003, the Magistrate’s Court considered the application to stay the execution but made no Order instead, transferred the matter to the Supreme Court to determine the appeal dated 19 December 2002.

On 6 February 2003, the Supreme Court made Orders staying Magistrate’s Court Orders of 19 December 2002 and the Orders of 17 October 2002 for a period of 14 days. In addition, the Supreme Court directed that the appellants must seek an inter-parties hearing before the Magistrate’s Court on the interlocutory injunction.

The inter-partes, hearing took place before the Magistrate’s Court on 14 February 2003.

On 14 February 2003, the learned Senior Magistrate refused the appellant’s application to set aside the Interlocutory Orders of 19 September 2003 and issued the Interlocutory Orders which are now subject to this appeal.

On 24 February 2003, the appellants filed their Notice of Appeal against the Interlocutory Orders of 14 February 2003.

On 26 February 2003, the Magistrate’s Court refused to stay the Orders of 14 February 2003.

The interlocutory Orders were executed by the members of the Police Force on Thursday 10 April 2003.

The appeal proceeded on 3 grounds.

First, the appellant says that the respondent has no locus standi to bring the action at the Court below. It is contended that the respondent is neither a human being nor a registered corporate person in law. The respondent has no “private right” that has been the subject of interference: the appellant cite the case of Saling Stephens v. Police Service Commission, Civil Case No. 11 of 1995.

The first ground of appeal must fail for the following reasons:

There are material facts before the learned Senior Magistrate that the Community of Ienbitoka, the respondent, is the representative of the custom owners of Eenikahi land. It is the big nakamal where the custom owners come from and answerable to. There is no dispute between the parties on this point.

The respondent is comprised of several custom landowners of Eenikahi who applied to the Courts to protect their interest in the said land. They are entitled to do the application for restraining Orders. See Valele Case – Appeal Case No. 01 of 2002 and Boetara Trust Case – Appeal Case No. 04 of 2002.

The case of Saling Stephens v. Police Service Commission is not relevant to the present purpose.

The term ‘locus standi’ must be used in a flexible way. The terms denote the existence of the right of an individual or a group of individuals (not necessarily constituting a legal entity) to have a Court enter upon an adjudication of an issue brought before the Court by proceeding investigating by the individual or by group.

The basic test for determining locus standi is ‘sufficient interest’. The members of the respondent have sufficient interest in the Eenikahi land. The respondent has the capacity to apply to court to protect its members’ interests.

The second ground of appeal is that there has still been no evidence of a cause of action filed in the Court below where these Orders (14 February 2003 ) were made.

This second ground must also fail. The Orders of 14 February 2003 which are subject to this appeal are interlocutory Orders. An interlocutory injunction is a provisional measure taken at an earlier stage of the proceedings, before the Court has had an opportunity to hear and weigh fully the material evidence on both sides. Such an interlocutory Order is generally expressed to continue in force ‘until the trial of the action or further order’.

Once an injunction is granted, it remains in force and must by obeyed, until it is discharged by the Court however stale the litigation and even if the Order should not have been made in the first place.

In the present case, an action for trespass and damage has been filed in Port-Vila Magistrate’s Court on 7 August 2002 and transferred to Tanna Magistrate’s Court on 11 November 2002. The action is filed by counsel for the respondent between Community of Ienbitoka (plaintiff) v. Fred Nasse (first defendant) and Members of Nasse Movement (second defendant), Magistrate’s Court Civil Case No. 113 of 2002.

It is to be noted that a legal cause of action need not be filed at the date of the issuance of the interlocutory Order. It can be filed latter on undertaking by counsels.

The submission that the learned Senior Magistrate failed to satisfy himself that there was a cause of action in place before making the interlocutory Orders must fail.

The case of A.G. v. Chief Willion David and Others is not relevant for the purpose of this case because in that case, the applicant sought an interlocutory order to protect Vanair and informed the Court that there is no substantive claim pending or the applicant does not intend to file a claim. So there is no legal basis to grant an interlocutory injunction.

The third ground of appeal is that the learned Senior Magistrate lack jurisdiction to issue the Orders as it involves a customary land.

The Magistrate’s Court has jurisdiction to issue restraining Orders. See powers of Magistrates under Section 1 of the CAP. 130 and Section 4 of the Courts Act [Cap. 122] and the Magistrate’s Court Rules 1976 (then applied in this case).

In this case, there is no land custom claim filed before the Island Courts of Tafea. All parties agree to this effect.

This is not a matter under the jurisdiction of Island Courts as there is no custom land claim registered and pending before the Tafea Island Courts before the coming into force of the Land Tribunal Act of 2001.

In any event, there is material fact before the learned Magistrate of threatened violence by the appellants. It is the duty of the Courts and in this case the Magistrate’s Court which was seized of the application to so intervene to maintain the status quo between the parties. That is what the learned Magistrate intended as he explained in the reasons for his interlocutory Orders of 14 February 2003. The learned Senior Magistrate is right and has jurisdiction to issue such interlocutory orders and framed them in the way he did. He did not exceed his jurisdiction. The third ground of appeal must also fail.

The Court makes the following Orders and Directions/Advice:

1. The appeal is dismissed.
2. The appellant shall pay the costs of the respondents.
3. The costs are determined at VT 100,000.
4. The costs are to be paid within 3 months as from today by way of 3 separate instalments until the total VT 100,000 is paid.
5. The interlocutory Orders of the Magistrate’s Court of 14 February 2003 still stand.
6. The parties may jointly or by consent or by application before a Court of competent jurisdiction, apply to vary these Orders for the purpose of use of Eenikahi land.
7. Parties or persons having an interest in Eenikahi land are advised to lodge their land claim in relation to Eenikahi land in the land Tribunal in accordance with the provisions of the Land Tribunal Act of 2001 if thy so wish.
   

Dated at Isangel, Tanna this 22^nd day of July 2003

BY THE COURT

Vincent LUNABEK
Chief Justice