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Tarivatu v Augustin [2020] VUSC 284; Civil Appeal Case 2219 of 2020 (1 October 2020)

IN THE SUPREME COURT OF Civil Appeal

THE REPUBLIC OF VANUATU Case No. 20/2219 CVLA

(Appellate Jurisdiction)

BETWEEN: Adam Tarivatu and Family

Appellant

AND: Tony Augustin, Antoinette Augustin, Pierre Chanel Augustin, Loic Augustin and Francois Ramuel

Respondents

Date: 1 October 2020

Before: Justice G.A. Andrée Wiltens

Counsel: Mr S.T. Joel for the Appellant

Mr P. Fiuka for the Respondents

JUDGMENT

1. Introduction
   

1. This is appeal from a decision by a Magistrate to strike out a Claim.
   

2. Background
   

2. This case concerned land. The case had proceeded to the point where the Appellant had applied for Summary Judgment, and the Respondent had responded to that application and counter-applied to strike out the Claim for want of prosecution.
   
3. The Notice advising counsel of the next hearing when those two applications were to be dealt with unfortunately did not reach counsel for the Appellant in time for him to appear at that next scheduled event.
   

100. The Decision
     

4. In the absence of the Appellant’s counsel, the application to strike out was advanced on the basis that the Appellant had no rights in relation to the land and accordingly had no standing to bring his Claim; and further, that no reasonable cause of action was disclosed in the Claim.
   
5. The learned Magistrate published a written decision striking out the Claim in its entirety.
   
6. The decision commences by stating that the decision is made pursuant to the Court’s powers under Rule 9.10(1)(a) and (b) and (3)(a)(b) of the Civil Procedure Rules No 49 of 2002.
   
7. Later in the decision it is recorded:
   

“NOW THEREFORE PURSUANT TO ITS POWERS under Rule 9.10(2)(d)

IT IS HEREBY ORDERED THAT-

1. The Civil Case No. 560 of 2020 be hereby struck out in its entirety”.
   

4. Discussion
   

8. Mr Fiuka fairly conceded the learned Magistrate has erred.
   
9. The Rules referred to have no application in this particular instance. Accordingly, the decision must be reversed.
   

5. Result
   

10. The appeal is allowed.
    
11. Civil Case No. 560 of 2020 is re-instated and is to be heard by a different Magistrate.
    
12. The urgent ex parte interlocutory orders that were revoked by the learned Magistrate’s decision are also re-instated with immediate effect.
    
13. Given the concession by Mr Fiuka, it is not appropriate to order costs in favour of the appellant. Mr Joel accepted that.
    

Dated at Port Vila this 1st day of October 2020

BY THE COURT

.................................................

Justice G.A. Andrée Wiltens