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

Civil Appeal Case No. 1 of 2004

BETWEEN:

DENNY PALAUD
Appellant

AND:

MAXIME REMY
Respondent

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Counsel: Mr Saling N. Stephens for the Appellant
Mr Willie J. Kapalu for the Respondent.

Date of Hearing: 13th June, 2005
Date of Judgment: 17th June, 2005.

JUDGMENT

This is an appeal against the judgment and orders of the Senior Magistrate’s Court dated 14th November 2003. The appeal was filed on 16th December 2003 about 3 days after the 30 days period allowed for an appeal had expired. The appellant sought leave to appeal out of time by application filed and dated 8th June 2005. Prior to the hearing of the appeal Mr Stephens applied to have the application heard. Mr Kapalu did not object to the application and accordingly leave was granted with no order as to costs.

The Orders appealed against are -

“(1)	That the defendant had been quite illegally possessing or using property Title No. 03/0H71/041.

(2)	That the defendant shall quit and deliver up possession of the property Title No. 03/0H71/041 within 21 days.

(3)	That the defendant shall meet all costs and incidental to this case.”

The grounds of appeal are that the learned Senior Magistrate had erred in fact and in law and/or mixed question of fact law as follows:-

“(1)	in proceeding to deal with the matter when he knew he has no jurisdiction to deal with the matter because it involves legal issues in relation to the Land Leases Act [Cap 163].

(2)	failing to appreciate the fact that the matter is res judicata as the matter has been settled back on 21st July 1993.

(3)	such other grounds as may be advanced by appellant’s counsel.”

No such other grounds were advanced by Mr Stephens. There were basically two main issues. I deal with them in the following manner –

(1)	The Jurisdiction Issue

Mr Kapalu argued that the Court below had exercised its power properly in deciding the case before it as the claims were in relation to eviction, mesne profits and interests. He argued further that the issue of jurisdiction was not raised in the Court below. However the record of proceedings show to the contrary. On 15th April 2003 the defendant and Mr Stephens were not in Court. They had requested an adjournment to which Mr Kapalu objected. Mr Kapalu raised the jurisdiction issue by submitting that “the Court has no jurisdiction to challenge the legality of the Lease Title.”

On record is a letter dated 14th April 2003 by Mr Stephens seeking an adjournment due to his Court appearances in the Courts in Port Vila on 15th April. In the last paragraph of that letter Mr Stephens stated “…… we are of the view that the matter should be transferred to the Supreme Court which had the jurisdiction to deal with any issue arising from the Land Leases Act.”

In the defence of the defendant dated 14th April 2003 it is stated that “…. The Defendant denies the Plaintiff is entitled to any relief as sought since the registration of the property was obtained by fraud.” (emphasis added)

Despite Mr Kapalu’s objection to an adjournment the Court below on 15th April 2003 granted an adjournment and ordered wasted costs against the defendant and amongst others, further ordered the defendant “…. to file proper particulars as to fraud etc….” Further and better particulars of fraud were filed by Mr Stephens on 22 April 2003. Mr Kapalu filed a Reply to those particulars on 2nd June 2003 denying fraud. The matter proceeded to trial on 17th September and 16th October 2003. In its judgment dated 14th November 2003 the Court below held -

(1)	“No proof of fraud……” (page 1)

(2)	“(k) There is little or no evidence of any fraudulent dealings before this Court.” (page 3)

Those are clear indications that the Court below had dealt with a matter which it had no jurisdiction to deal with. The Court agrees with Mr Stephens that the Court defined in section (1) of the Land Leases Act means the Supreme Court.

The Court below had known on 14th April 2003 that it had no jurisdiction to deal with matter in relation to legality of titles and the best course of action was to have transferred the matter to the Supreme Court. Having failed to do so, the Court had erred.

Grounds 1 is therefore answered in the affirmative.

(3)	Issue of Res Judicata

Mr Kapalu argued that the matter is not rested. He submitted that there was no evidence in the Court below showing that the respondent had surrendered his title upon he being given another plot of land.

Record shows that in 1993 the respondent filed in the Magistrate’s Court Civil Case No. 38 of 1993. He sought an eviction order against the appellant on the basis that he was the Leasehold of Title No. 03/0H71/041.

The claim was dealt with by the Court on 21 July 1993. Mrs Naviti, the Senior Magistrate who heard the case gave oral evidence and by affidavit dated 25th July 2003. She annexed as “A” a copy of the record of proceedings on 21 July 1993.

It stated –

“Civil Case

Maxime Remy v. Denis Palaud.

Case withdrawn by the Complainant Mr Maxime Remy. On the ground that he is satisfy with the outcome of the dispute that the Urban Lands has given the Plaintiff another land.

Case now withdrawn.”

From the record of proceedings the respondent denied any knowledge of firstly, Civil Case No. 38 of 1993 and secondly, that the matter was withdrawn. The documents annexed in support of the Writ of Summons in relation to Civil Case No. 38 of 1993 included a copy of Leasehold Title No. 03/0H71/041, a consent to registration, receipts of stamp duty payment, registration fees and valuation certificate. The only person who could have furnished Mrs Charity Bona, then legal Officer with the Public Solicitor’s office was without doubt the respondent Maxim Remy. Nobody else could and would have those original documents. Therefore it appears there was no truth in his denials. Further from the record of proceedings on 21 July 1993 it is recorded clearly that-

“Case withdrawn by the complainant Mr Maxim Remy.”

It was highly unlikely that the Senior Magistrate would have noted that another person was present and sought the withdrawal order. The respondent’s denial of that fact again is of no substance.

Clearly the Court accepts that the matter was brought to Court once in 1993 and it was dealt with as withdrawn. The case rested there. It was not open to the respondent to file another case 10 years later claiming for the same eviction orders that he had withdrawn in 1993. The matter is res judicata.

Ground 2 is therefore answered in the affirmative.

It is clear from records that the respondent was allocated another land. Implicit in that was the expectation from the appellant that the respondent surrenders title and transfer same to the appellant. That has not transpired for the last 10 years or so. And in the view of the court, it is long overdue.

This appeal is accordingly allowed. All orders of the Court below dated 14th November 2003 are hereby vacated. The respondent must pay all costs of the appellant in the Court below and in this Court to be agreed or taxed.

DATED at Luganville this 17th day of June, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge