Estate of Late Harry John Saiken v Bule

Court Court of Appeal

Case type Civil Appeal

Case number 418 of 2026

Hearing date 08 May 2026

Decision date 15 May 2026

Official PDF document

Judge(s) Hon. Chief Justice Vincent Lunabek; Hon. Justice Raynor Asher; Hon. Justice Richard White; Hon. Justice Oliver Saksak; Hon. Justice Dudley Aru; Hon. Justice Viran Molisa Trief; Hon. Justice Maree Mackenzie; Hon. Justice Josaia Naigulevu

Appellant(s) Estate of Late Harry John Saiken rep. by Api Tobi John The Administrator

Respondent(s) Enock Bule - Respondent

Counsel J Ngwele for the Appellant; H Vira for the Respondent

JUDGMENT OF THE COURT

Introduction

1. This is an appeal against a judgment entered in favour of the Respondent on the 1st July 2019 for breach of the terms of a contract involving the sale and purchase of a property in the sum of VT5,000,000. It was entered pursuant to Rule 12.9 of Civil Procedure Rules 2002, which permits judgment to be entered for a claimant when the defendant does not attend the trial.

Background

2. The Respondent, the Claimant in the Supreme Court proceeding, filed his claim on the 21st March 2017 in which he asserted that the Appellants, the Defendants in the original proceedings, had failed to register the transfer of the Lease No.11/OH31/037 as agreed. This was after the full purchase price of the land had been paid to the Appellant. The Claimant sought specific performance of the terms of the Agreement dated the 23rd April 2015 including the registration of the title in his name, and compensation for the loss of income from the six rented apartments, or alternatively the return of the VT 5 million paid to the Appellant for the property.

3. The Appellants filed their Defence on the 9th April 2018 in which they claimed that the Respondent had failed to pay the remaining balance of VT 3,500,000 at the end of August 2015 in breach of the terms of the sale and purchase agreement.

4. In their Defence the Appellants clarified, what may now become an important matter, that Ishmael Berry had never been appointed by them to act on their behalf and was never authorised to receive the balance of VT 3,500,000 from the Respondents.

The Trial

5. On the 25th June 2019, the trial which both counsel had agreed to on the 27th February 2019, took place. Only the Respondent’s counsel was present. The Appellant’s counsel was absent. Judgment was entered in favour of the Respondent after the Respondent was permitted to call evidence against the Appellant in accordance with Rule 12.9(1)(c).

6. The primary judge entered judgment in favour of the Respondent on the 1st July 2019. He ordered specific performance, which required the Appellants to procure the registration of the transfer of Lease title No. 11/OG31/037 in favour of the Respondent, and that the Director of Lands facilitates the transfer of the said Lease title within 7 days of the date of the judgment. He ordered that the Appellant pay VT 2,088,000 to the Respondent in lieu of monthly rentals of VT 12,000 from the six apartments commencing in January 2017 till June 2019.

7. Upon an exparte application of the Respondent, the primary judge granted Orders pursuant to Rule 7.5 (3)(a) and (b) of the Civil Procedure Rules on the 23rd February 2018, freezing a Bank South Pacific Account No.2000729013 styled Harry John, ordering all rents from the rented property comprising lease title 11/OH31/037 be paid into the trust account of counsel representing the Respondent, and that the Appellants and their agents be restrained from interfering with the prescribed rent payment process.

8. On the 21st June 2024, the primary judge issued an Enforcement Order directing the Director of Lands to rectify the register of Lease Title No. 11/OH31/037, replacing the Appellants’ name with the Respondent’s name within 28 days of the date of the Order. From the documents filed by the parties, we are informed that the Respondent also commenced eviction proceedings in the Supreme Court on or about the 15th October 2024.

The Appeal

9. The Appellants filed an Application for enlargement of time to file an Appeal under Rule 9 of the Court of Appeal Rules on the 24th February 2026, and a Notice and Grounds of Appeal on the 20th March 2026. A sworn statement was filed in support of the Application.

10. The Appeal seeks Orders that the judgment of the Supreme Court of the 1st July 2019 be set aside, that the rectification of the Lease Title in favour of the Respondent ordered in Civil case No. 770 of 2021 be quashed, and that the matter be remitted to the Supreme Court before another judge.

11. The grounds advanced to support the notice of appeal include a denial of natural justice and procedural fairness as the first ground, the erroneous exercise of discretion in entering a final judgment granting substantive relief as the second, and the interests of Justice requiring intervention by this Court in the light of the ongoing effect of the Judgment as the third ground.

12. At the hearing of the Appeal, we were informed by counsel that they had conferred about a key evidentiary issue relating to the proceeding in the Supreme Court and had agreed that the Appeal be conceded. The Respondent’s counsel advised the Court that a critical witness in the case, Ishmael Berry, who was purportedly engaged to act on behalf of the Appellant’s and collect the balance of the purchase price of the property on their behalf was never called to be cross-examined at the trial. He confirmed to us that this decision accorded with the instruction of his client. Both counsel confirmed their agreement that the judgment of the Supreme Court given on the 1st July 2019 be set aside and that the case be sent back for trial before another judge, and that Ishmael Bery attend to give evidence.

13. When we enquired with counsel about the status of the property, they informed us that the rent from the rented apartments was being paid to the Appellants. This was concerning in the light of the Orders that had been made by the primary judge concerning the method of rental payments,

14. The parties were agreed as to the orders to be made to resolve the appeal and we are satisfied that they are appropriate orders for the Court to make now.

Result

15. Accordingly, the Court makes the following Orders:

i. By consent, this Appeal is allowed.

ii. The judgment of the Supreme Court given on the 1st July 2019 in Civil Case No.17/674 SC/CIVL is set aside and quashed, and the matter is returned to the Supreme Court to be tried.

iii. The rectification order relating to Lease title No. 11/OH31/037 made by the primary judge is quashed.

iv. No dealings or transactions over Lease title No.11/OH31/037 are to be undertaken by any party until further Orders of the Supreme Court or the Court of Appeal.

v. Costs lie where they fall.

DATED at Port Vila this 15th May 2026
BY THE COURT

Hon. Chief Justice Vincent Lunabek