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Cevuard v Samsen [2003] VUCA 10; Civil Appeal Case 06 of 2003 (9 May 2003)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Civil Appeal Case No.06 of 2003

BETWEEN:

THEOPHILE CEVUARD
First Appellant

AND:

BRUNO CEVUARD
Second Appellant

AND:

ALEXANDRINE SAMSEN, JEAN LUC SAMSEN,
TOMA TSINT-SANUS, LEONARD SEC,
ARSENE SEC, FABIANO SAPO and STANISLAS FRANK
First Respondents

AND:

RENE CEVUARD
Second Respondent

AND:

BARTHELEMY CEVUARD
Third Respondent

Coram: Hon. Justice von Doussa
Hon. Justice Fatiaki
Hon. Justice Coventry

Counsels: Mr. Willie Daniel for the Appellants
Mr. Saling Stephens the Respondents

Hearing Date: 8th May 2003.
Judgment Date: 8th May 2003.

JUDGMENT

The appellants, who were the plaintiffs in the Court below, appeal against a ruling and judgment made in the Santo Registry of the Supreme Court on 17^th February 2003 which dismissed the appellants’ notice of motion for orders of committal against the first respondents, and dismissed in their entirety the appellants’ Writ of Summons and Statement of Claim. Further there was a consequential order that the appellants pay the respondents’ costs of and incidental to the Notice of Motion and the Writ of Summons.

The proceedings in the Court below commenced by Writ of Summons on 8^th July 2002. The appellants alleged that they had the exclusive right to occupy certain land known as Votgasirev in East Santo. They alleged that the first respondents in particular but all three respondents were entering the land and causing damage to it. The appellants sought damages to be assessed for harm to the land, damages for trespass and the eviction of the first respondents from the land.

The appellants also claimed a declaration that the first appellant is the true custom owner of the land. That however seems to be an optimistic claim as the evidence did not support the view that the first appellant was the actual custom owner of the land. On the contrary the evidence before the primary judge established that by a decision of the Supernatavultano Council of Chiefs dated the 2^nd of June 1998 one Tom Sepith was declared to be the proper custom owner of the land and that the first appellant had been given the right to use and develop the land. In other words the first appellant had the right to use the land although he was not the custom owner.

Having commenced the proceedings, the appellants’ sought and obtained an interlocutory injunction which included the following orders:

“(1) The First Defendants be restrained from clearing, cleaning, cultivating or making gardens on the land known as Votgasirev, situated at Port Olry Village, East Santo.

(2) The First Defendants be restrained from erecting causing and/or establishing any king of projects and/or development on the said land.

(3) The First Defendants be restrained from entering, remaining and/or trespassing on the said land.

(4) The First Defendants be restrained from any form of intimidation such as assaulting, abusing threatening and/or harassing against the Plaintiff/Applicants and/or their families agents and representatives.”

Those orders were made on 29^th July 2002. On the 12^th February 2003 the appellants brought on for hearing before the primary judge a Notice of Motion seeking to have the first respondents dealt with for contempt on the basis that they had continued to enter the land.

Mr. Saling Stephens, who appeared for the first respondents when the matter came on for hearing before the primary judge, argued that they had entered the land for the purpose of harvesting the existing crops, and suggested that the orders of 29^th July 2002 should be varied to accommodate the need to take existing crops off the land. However, that was not the order that primary judge ultimately made. The primary judge in a written ruling delivered on 17^th February 2003 observed that “The Court can continue to issue orders but if the issue of ownership is not decided by the Island Court, the Land Tribunal or the Supreme Court on appeal, nobody would comply with those orders and it would be pointless issuing them.” Having made that observation it is plain that His Lordship did not intend to consider further the application for contempt. His Lordship then observed that the appellants’ lacked any legal standing as plaintiffs to bring the claims pleaded in their Writ of Summons. His Lordship accepted an oral application then made by Mr. Saling Stephens on behalf of the respondents to dismiss the whole action with costs.

It was common ground before the primary judge that custom ownership of land can only be finally determined by one of the tribunals in whom the relevant jurisdiction is vested by the Constitution, namely an Island Court, or the new Land Tribunal, or on appeal by the Supreme Court. Plainly the appellants had brought their proceedings recognising that that was the position, but seeking to have interlocutory orders made to protect their claim to the exclusive right to possession until there was a determination in one of those tribunals that they had the right which they asserted.

This Court in the decisions in Civil Appeal Case No. 1 of 2002, The Valele Family v. James Touru and in Civil Appeal Case No. 4 of 2002 Livo v. Boetara Trust has held that it is proper for proceedings to be brought in the Supreme Court claiming relief in respect of ownership of land to support interlocutory orders giving interlocutory protection until the question of ownership is determined in one of the tribunals with appropriate jurisdiction. Those two decisions support in full the action which the appellants sought to take in this case. It is contrary to those decisions to hold that the appellants in this case lacked the standing to bring the proceedings which they had.

With respect to the primary judge it is also wrong to say that the Court will not enforce interlocutory orders which have been made because the orders relate to land, the ownership of which has not finally been determined by a tribunal with appropriate jurisdiction. The very point of the decisions in The Valele Family v. James Touru and Livo v. Boetara Trust is that the Court has the power to make interlocutory orders to protect rights of people and to ensure the peace order and good government in the particular area where the land is situated. That is an important jurisdiction which is not only to be exercised in appropriate cases by the Court but must be enforced by the Court if the orders made are not complied with.

The appellants were entirely within their rights to bring the proceedings which they did, even if there were then grounds upon which to vary the orders of 29^th July 2002 to permit the first defendants to reap crops. Such a variation had not been made and, until it was, the injunctions remained in full force and effect. If they were broken the Court had jurisdiction to enforce them, and in the ordinary course on a proper application they should have been enforced.

It is our view that the primary judge erred in both the respects we have mentioned. The appeal must be allowed. The proceedings in Civil Case No. 35 of 2002 must be reinstated. It follows that upon the reinstatement of the action the orders of 29^th July 2002 will also be reinstated. However, after discussion with counsel today it seems appropriate to vary those orders in a minor respect, and we will return to that in a moment.

On the other aspect of the appeal, the appellants have established their entitlement to have had their Notice of Motion determined. However, their counsel, Mr. Willie Daniel, has today said that the appellants do not wish at this stage to proceed with contempt proceedings against the first respondents. They are content that the interlocutory orders be reinstated and for this Court to stress again to the first respondents through Mr. Saling Stephens that the orders are there to be complied with. If they are not complied with, contempt proceedings are likely to follow. The usual order for a serious contempt of orders of this kind is a period of imprisonment. The first respondents must understand that.

If it now appears by reason of changed circumstances or otherwise that the interlocutory orders need some variation beyond that which we propose to make, the proper course is for the first respondents to apply to the primary judge to have the orders of 29^th July 2002 varied. That application would then be considered on evidence from both sides and if appropriate the order will be varied.

We return to the question of whether we now should vary the order of 29^th July 2002. There is agreement between counsels that the order should be varied by including provision which allows the first respondents to enter upon the land to reap existing crops. It is necessary however that there be a time limit put on that. The original order of 29^th July 2002 included a provision directed to the police about enforcement of the order. We do not think that it is appropriate or within jurisdiction for the Supreme Court to be directing the police as to the manner in which they should perform their functions in an order of this kind in inter parties civil proceedings.

The order of 29^th July 2002 will therefore be varied so that it now reads as follows:-

1. The First Defendants be restrained from clearing, cleaning, cultivating or making gardens on the land known as Votgasirev, situated at Port Orly Village, East Santo.
   
2. The First Defendants be restrained from erecting causing and/or establishing any kind of projects and/or development on the said land.
   
3. The First Defendants be restrained from entering, remaining and/or trespassing on the said land.
   
4. The First Defendants be restrained from any form of intimidation such as assaulting, abusing threatening and/or harassing against the Plaintiffs/Applicants and/or their families agents and representatives.
   
5. Until 3 p.m. on 31^st July 2003 nothing in paragraph (1) - (3) hereof shall prohibit the defendants from entering the land for the purpose only of tending or harvesting their own crops already growing on the land.
   
6. The costs of this application be costs in the cause.
   
7. The orders shall remain in full force and effect until the Plaintiffs’ claim as contained in their Writ of Summons is finally determined by the Court or until further Orders of the Court.
   

We think that there should also be an undertaking given by the first appellant to commence and prosecute proceedings with reasonable expedition in an appropriate tribunal with jurisdiction to hear the matter to have his interest as an occupier under the authority of the true custom owner determined according to the law of the country.

Mr. Willie Daniel has indicated to the Court that he has authority to give that undertaking, and this judgment will now record that the injunctions and interlocutory orders which are in place are based on that undertaking.

It is the view of this Court that the costs of the appeal should be the appellants’ costs against the first respondents. The Court orders accordingly.

Dated at Port Vila, this 9^th day of May 2003.

BY ORDER OF THE COURT

Hon. John von Doussa J.
Hon. Daniel Fatiaki J.
Hon. Roger Coventry J.