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Vanuatu Amateur Boxing Association v Faerua [2005] VUSC 72; Civil Case 166 of 2003 (6 June 2005)

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

Civil Case No. 166 of 2003

BETWEEN:

VANUATU AMATEUR BOXING ASSOCIATION
Claimant

AND:

GEORGE FAERUA, CHRISTOPH EMILLIE, JOSEPH GORDIN,
JAMES IAHUAT & ROSS SMITH
Defendant

AND:

VASANOC
Interested Party

Coram: Justice P.I. Treston

Mr. Boar for Claimants
Mr. Warsal for Defendants
VASANOC through Mr. Henry Tavoa

Date of Hearing: 06 June 2005
Date of Decision: 06 June 2005

JUDGMENT ON APPLICATION FOR RESTRAINING ORDERS

This is an application for restraining orders made by the Executive of the Vanuatu Amateur Boxing Association. Orders were sought as follows: -

"1. An order than the Respondents, George Faerua, Christopher Emelle, Joseph Gordin Nembu, James Iahuat and technical Coach Mr. Ross Smith be restrained further form liaising with VASANOC in organizing any boxing tournament on behalf of VABA or VASANOC to represent Vanuatu in any boxing games locally or overseas in future.

2. An order that only the current VABA Executive duly elected pursuant to the orders of the Supreme Court dated 13th of August 2004 namely Jacque Mariango, Johnety Jerety, Tom Kalo, Benson Willie and Leong Weia will prepare boxing athletes to represent Vanuatu in any local or overseas boxing games in future.
   
3. An order that the Respondents or Mr. James Iahuat or Mr. Ross Smith be restrained from endorsing and or submitting any list of boxing athletes selected by them to represent Vanuatu locally or overseas in future except through the Executive which was duly elected pursuant to the Orders of this Court dated 13 August 2004.
   
4. An order that Mr. James Iahuat and Mr. Ross Smith be restrained from organizing any boxing activities (i.e. coaching workshops and boxing tournaments) unless it is authorize by the Executive of Mr. Jacque Mariango.
   
5. An order for cost."
   

In accordance with the orders of this Court dated 31 May 2005, the Defendants apart from Mr. Ross Smith filed sworn statements and Mr. Smith wrote a letter to the Court dated 21 May 2005 and received on 6 June 2005.

At the hearing on 6 June 2005 after discussions in the Court and after hearing from each counsel, the orders were made that I shall refer to shortly. Mr. Warsal, counsel for the Defendants conceded that those orders could not be opposed and Mr. Boar did not seek any further orders.

The Court was firmly of the view that the following orders were the only ones that could be made to enforce the judgment made in this Court on 13 August 2004 for the following reasons.

The judgment and orders of 13 August 2004 were never appealed and a subsequent urgent application for suspension of those orders filed on 24 August 2004 was never pursued even though a date of hearing was allocated for it on 6 September 2004. Neither party appeared on that date. The application was struck out by order 1 of 31 May 2005 effectively for non-prosecution.

Although no specific application was made, the Defendants sought to relitigate matters which had already been canvassed in the earlier proceedings resulting in the judgment 13 August 2004. In particular they sought to uphold the election, which had occurred on 15 August 2003. It was pointed out to counsel that that could not be done even if an application had been filed because the judgment of 13 August 2004 effectively disposed that issue and no appeal had ever been filed.

In addition, the Defendants endeavoured to submit through their sworn statements, again without specific application being made to the Court, that the appointment of the permanent executive on 3 September 2004 was not done in accordance with the VABA constitution. However, no claim for judicial review of that appointment had ever been made within the six months time limit set out by Rules 17.5 of the Civil Procedure Rules No. 49 of 2002.

Accordingly, counsel for the Defendants conceded that orders could be made as follows: -

1. The Defendants are restrained from holding themselves out to be the permanent executive of Vanuatu Amateur Boxing Association.
   
2. Costs are awarded to the Claimant against the Defendants at the standard rate as agreed or as determined by the Court.
   

Dated AT PORT VILA, this 06th day of June 2005

BY THE COURT

P.I. TRESTON
Judge.