IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.21 of 2000
BETWEEN:
ALEXANDER SAMSEN
Plaintiff
AND:
SHEI IERGET/p>
JULES NERVERSETTE
SIMON TABU
JEAN-GUY
Defendants
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Coram: Mr Justice Oliver A
Saksak
Ms Cynthia Thomas - Clerk
Mr Saling N. Stephens for the
Plaintiff
Mr Willie Daniel for the
Defendants
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ORAL JUDGEMENT
In these of this matter,
the Defendants apply by way of a Nf a Notice of Motion seeking the following
Orders that:-
1.&n;"> & &nsp; &nbssp; &nbssp;
Than>The Plaintiff's (Respondent) case against the Defend(Appls)
s witfound, vexs or frivo
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2. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
The Ex-POrte Orders of his Worshgistrimmy of 11th
April 2000 be set aside in its entirety.
>
3. &nbbsp;& &nsp; &nsp; &nnbp;& &nnbsp;
Than>The Respondent's Civil Case No. 21 of 2000 be dismissed.
4. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
The Resptndent still has other p and able s which he
must go back to and lodge his case with first before core comingoming to
t to the Supreme
Court.
5. &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
Theicantscants continue to be entitled to the ownership of "Lomo
Plantation; as he den of the Suetsautivecil of
Chiefs
date dated 21ssup>st March, 2000.
6. p;&nssp; p; &nbp; &nbp; ;
p Tse Respondenondent and his families, agents and servants be restrained
from trespassing into "Lomo ationt; anling with
the same in any
manncludhe making of copra opra theretherein.span>
7. &nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;&
p;
The Respondent and his families, agents and servants be restrained
from harassing, threatening and/or assaulting the Applicantstheir
fam, agents and servants.
>
8. &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; &nb Than>The Resp Respondent pays the costs of thlicat/span
The Issues as I understand them
to be are:-
1.&t;"> &nnsp;&&nsp;;&nspp;&nssp;&nsp;
Whether orthe the Respondent's case is without foundation, vexatious
or friv?
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2. ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;&
span>Whether ther or notr not the Magistrates Court the power to issue the Ex-Parte
Orders of 11th
3. &nnsp;&&nsp;;&nspp;&nssp;&nsp;   Whether or noor not the Respondent has exhausted alllableues a vi leveore c direto the Supreme Court?
>
4. p;&nssp; p; &nbp; &nbp; ;
p Wrether or noor not the Applicants are entitled to ownership of "Lomo
Plantation" as per decision of the Sergavuetsa
Executive Council of Chiefs
dated p>st
p>
5. & &nnsp;&&nbp;;&nbp; &nbp; &nnbp;&
Whetherether or not the Applicants are entito a aininer
gains Plai?
6. &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
/span>Whether or noor not the Applicants are entitl the of t catiopan><
Issue No.1
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The Respondent has issued a
Summons Generam under Order 3.7 12.13 of the High Court Rules 1964. The
The
Respondent claims
declarations firstly concerning the validity of a custom
will made orally in or about 23 January 1990, and secondly that by
virtue of
such will property known as "Lomo Plantation" has lawfully passed from the
deceased, the late Marcel
Warlan to the Respondent.
With rt, this is a wrong
process. To seek declarations under a will the Respondent should huld have
proceeded by way of
an originating summons issued under Order 58 of the High
Court Rules. Alternatively, the Respondent could have applied for
letters of
probate under a formal probate proceedings. But that is not the case here.
Further, the Respondent has
ad in the alternative for compensation as damages for improvmprovements.
Again with respect,
this is a wrong process. The proper cause would have
been to issue a writ of summons so as to allow proper pleadings.
For these reasons, I conclude
hat the Respondent's action is without foundation and is this therefore
vexatious and frivolous.
Accordingly Civil Case No. 21 of 2000 will be
dismissed.
I wish to add further that I
find it difficult to decide on tsue of damages for improvemrovements on a
piece of land whose
ownership is still heavily disputed, without first
determining the true ownership of that land. Clearly the definition of
"Land" given in Section 1 of the Land Leases Act CAP. 163 is such that it
includes all things growing on land and buildings and other things
permanently fixed thereto,
except for minerals, oils and gases. It is
difficult to deal with these issues in isolation for to do so would be like
'putting the cart before the horse'.
Issue No. 2
clas class="MsoNormal" style="margin-top: 1; margin-bottom: 1">
It is clear to me that in land
matters the Magistrates Courts have no juction. Civil Case No. 21 of21 of
2000 arose as
a direct result of the Magistrate's Court Order dated 21st
April 2000. The subject matter of Civil Case No. 21 of 2000 is a custom oral
will which concerns the passing of land
from one person to another. That is
clearly a land matter and as such the Court below had no jurisdiction to
deal with
the ex-parte application. For these reasons the Orders of the
Court below will be vacated and substituted.
Issue No. 3
It is clear from the evidence
that there has a meeting to discuss the will in question. That meeting
g
was held on
21st March, 2000. The Respondent was present with his
wife but they both claim in evidence which has not been rebutted that they
were forced to attend and which they say no sufficient opportunity was given
to them to present their side of the case
fully. The Respondent and his wife
are obviously quite unhappy with the decision of the meeting. But they have
not appealed
against those decisions.
The Court takes judicial notice
of the hierarchy of Courts in Vanuatu which begins at the lowest level with
the chiefs
to the area or district level, on to the island level and then to
this court which is the national level. This Court agrees
with Mr Daniel's
submission that land is a vital issue to the Ni-Vanuatu and disputes
concerning land has to be discussed
properly and at the appropriate avenues.
As I have said, it is clear that the Respondent is unhappy with the
decisions
of the meeting of 21st March, 2000. He has not appealed
and is out of time but the circumstances of this case is such that a right
to appeal
cannot be denied. Therefore the Respondent must be allowed to
lodge his appeal through the proper process. They cannot come
directly to
this Court at this stage. They may come later but only after they have gone
through the proper system. This
Court will be the last resort to decide the
matter. I agree with Mr Daniel that for this Court to hear the Respondent's
case at this stage would be to deny the parties of their rights to appeal
which would only create and leave behind a residue
of injustice. For these
reasons, I agree that the Respondent has not exhausted all avenues available
at the lowest level
which deal with custom.
Issue No. 4
The Applicants are entitled to
ownersf "Lomo Plantation" as per decision of the Counciouncil of Chiefs
dated
21st March, 2000 but that decision is now subject to
appeal. The entitlement is not an absolute one but is conditional upon
Decision 3 which states -
"Executive ia iaskem strong
long Mr Sei Erget we iheadman blong family Warlan blong oli mas tinkbaot Mr
Alixan Samsen
long hadwork blong hem taem hemi stap safa from sickness blong
late Warlan."
Under the provision of statute
law the Respondent is entitled to remain on the propwhich he has
improvedroved, repaired
and/or worked in good faith by virtue of a custom will,
until he is duly compensated for such improvements which if disputed,
must
be properly proven before a court of law. As such the Respondent is the
proper party to be protected and he is appropriately
entitled to a
restraining order against the Applicants.
Issue No. 5
For the reasons given in relation to Issue 4 above, the Applicants are not entitled to restraining
orders thrs that they seek.
Issue No. 6
I am of the view that this case
has benefited barties equally and therefore no party should be claiming
ng
for costs.
ORDERS
">
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These are the formal orders.
That -
(1)ot;"> &nnsp;&&nsp;;&nspp;
s Civil Case No. 21 of 2000 be and is hereby dismissed.
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1">
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(2) nbsp; p;&nbbp; &nbp; &nbssp;
(3) &nbs; p;&nssp;   Pean>Pending ding the determination of the appeal, the Respondent is entitled
to reside on "Lomo Plantation" and to
the qunjoymoccup and
use of the land.
>
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(4) &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;;
/span>The Appl Applicantscants by themselves, their agents and servants are hereby
restrained from making copra, working the land and/or trespassing on the
untiappea been heard and determetermined,ined,
or u or until further order
of this Court.
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(5) &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;;
/span>The Appl Applicantscants by themselves, their agents and servants are hereby
restd froassinreateand/oaultie Respondent, his
families, relatives, agentsgents and and servaservants unts until ntil
an apan appeal has been heard and
determined, or until further order of this Court.
(6) p;&nbbsp;&nsp; &nsp; p; &nnsp;&
sp;
Than>The Orders of the Magistrate's Court dated 11th April 2000
are y vac
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(7)
DATED at Luganville, this 3rd
day of August,
BY THE COURT
R A. SAKSAK
Judge
