IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL CASE No.86 of 2000
BETWEEN:
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REUBEN ESAU &
LEISANDE ESAU
Plaintiffs
NETTIE R. TOKON
JENNY W. NASSE
GLADWYN TOKON
Defendants
Coram: Chief Justice Vincent
Lunabek
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Counsel: Mr. Stephen Joel,
Public Solicitor for the Plaintiffs
Mr. Jack Kilu for the
Defendants
REASONS FOR JUDGMENT
On 1st August 2001,
the Court makes the following Orders:
1. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
That the ter ofer of Land Title No.11/0123/008 situated at Agathis
Area, Port-Vila, Efate to the names of the Plaintiffs, Reuben
Essau and
Leisande Essau, is refused.
2. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Tpat the Plaintiffstiffs are, in the alternative, entitled to damages to
be
assessed by the Court.
p clasoNorstyle="text-align: justify; text-indent: -36.margin-left: 72.0pt; margin-tgin-top: 1op: 1; mar; margin-bgin-bottom: 1">
3. &nbbsp;& &nsp; &nsp; &nnbp;& &nnbsp;
Than>That all parties and counsel infoand advised that the Court
will sit and hear the quantum of damages on Frid Friday 17ay
17 August 2001, at 9.00am
o�clock in the forenoon. Parties must be ready for the hearing as scheduled.
They should also
try to settle the matter out of Court.
4. nbsp; p; &nbp; &nbssp; &nbssp;
That ther there is no order as to costs. (Each party to pay his/her own
costs).
Below are the
reasons of tove Orders.
This is an amended Summons of
18 April 2000. The Plaintiffs sinter alia, for:
>
(1) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Ap Order for the trhe transfer of land Title No. 11/013/008 situated at
Agathis,
Port-Vila to them.
(2) & p; &nsp; &nsp; ;&nbpp; &n sp;
Or damagdamages, in the alternative, to be assess the ;
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(3) p;&nssp; p; &nbp; &nbp;
The Plaintiffs and Defendants
are related families. Mrs. Leisande Essau, one of the two Plaintiffs, is the
sister of the
deceased Jack Tokon. The Defendants, wife and children of the
deceased Tokon, are administrators of the deceased�s intestacy.
The dispute between the part arises out of the refusal of the Defendants to proceedoceed with the transfer of
a land lease
Title No. 11/0123/008 to the Plaintiffs.
The deceased Jack Tokon died on
25 September 1999 at the Viltral Hospital. During his lhis lifetime he owns,
among other
things, leasehold Titles in land. He left behind him his
surviving wife and children.
On 25 September 1999, the
deceased was buried. laintiffs provided clothingthing for the deceased�s
body, they purchased
a coffin, and paid for the burial land expenses at the
Municipal cemetery. They also paid overtime for Municipal workers to
bury
the deceased, transport costs, food and two bullocks consumed after burial.
So the Plaintiffs paid for the deceased�s
funeral. The Plaintiffs did so on
the basis of an oral agreement between the deceased Jack Tokon and
themselves. The
agreement is simply that the Plaintiffs will be responsible
for the deceased�s funeral management and expenses.
In re land Title
No.11/0123/008 situated at Agathis, Port-Vila, and registered in the sole sole
name of the deceased will
be transferred to the Plaintiffs� name as a reward
for their joined efforts to look after the deceased during his life time.
The existence and/or the
circumstances of the oral agreement constitute(s) the critical factual
dispute between the parties.
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The evidence was put before
Court by affidavit evidence in addition to oral evideevidence.
I have listenedorded and
considered the evidence of all witnesses bees before me and their demeanour, I
accept the Plaintiffs�
evidence of the existence of an oral agreement
between the Plaintiffs and the deceased on 15 September 1999 which was
repeated by the deceased to the Plaintiffs at the hospital before his death
on 25 September 1999. The Plaintiffs� evidence
was supported by one of the
deceased�s daughter, Jacqueline Tasso.
The Defendaevidence on
that point constitute general denies, alt, although, witness Rose Tokon gave
evidence to the effect
that she was present on 15 September 1999 at about
midnight when her deceased father talked to the Plaintiffs at his house
at
Tagabe, Port-Vila, and no such agreement on transfer of land Title No.
11/0123/008 was mentioned by her father. The
evidence is also that Rose was
inside the room and then went outside at that time and it was when Rose was
outside that
the deceased Jack Tokon asked the Plaintiffs to be responsible
for his funeral management and expenses and in return the land
Title No.
11/0123/008 will be transferred to them. The defence�s evidence is rejected
on that point.
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The finding of the Court is
that on 15 September 1999 the deceased Jack Tokon made an oral agreement
with the Plaintiffs
to transfer the land Title No.11/0123/008 to the
Plaintiffs. It is also common ground that the Plaintiffs performed their
contractual obligations on the day of the deceased�s death as agreed. They
incurred expenses for the deceased�s funeral
on the expectation that land
Title No.11/0123/008 situated at Agathis, Port-Vila, and registered in the
sole name of
the deceased will be transferred to the Plaintiffs� names for
their joined efforts towards him (deceased) as agreed by the
deceased and
themselves (Plaintiffs).
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The land Title No. 11/0123/008
is part of the estate of the deceased Jack Tokon. Ton. The deceased died
intestate (without
a will). The agreement does not amount to a will as
defined under the will Act [CAP.55].
Whether the agreement is valid
or not, the Plaintiffs rely on the base basis of this oral agreement made with
the deceased
during his life time and undertook expenses towards the funeral
of the deceased after his death.
The Plaintiffs now seeks from
the Court, an Order for specific performance by the administrator(s) of the
deceased�s estate
to effectuate the transfer of land Title No.11/0123/008 to
their join names (the Plaintiffs�).
The Order for specific
performance is a discretionary r. As both parties conceded,eded, in the
present case, the deceased
Jack Tokon left no will. The disposition of the
property of a deceased must be done according to his/her intention(s) as
shown in his/her will. The will must be in writing [see CAP.55]. In the
absence of such written will, the distribution
of the property of the
deceased on intestacy is the law of Succession, Probate and Administration
Regulation of 1972
in accordance with Article 95(1) of the Constitution.
Further, in this case, the
Plaintiffs are entitled to compensatory damages which will suffice to remedy
the Plaintiffs�
costs for the expenses of the funeral of the deceased.
These are the reasons of the
Orders issued by the Court on 1st August 2001.
DATED at PORT-VILA, this 29th
DAY of MAY, 2002<
BY THE COURT
Vincent LUNABEK
Chief Justice
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