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Sandalwood Processing Product Ltd v Greenleaf Extracts [2005] VUSC 145; CC 029 2000 (16 December 2005)

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

Civil Case No. 29 of 2000

BETWEEN:

SANDALWOOD PROCESSING PRODUCT LIMITED
Claimant

AND:

GREENLEAF EXTRACTS
First Defendant

AND:

BRIAN ROBERT HENSEL
Second Defendant

AND:

CHRISTIAN MISSION CENTRE (CMC)
Interested Party/Applicant

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

Counsel: Mr Saling Stephens for the Claimant
No Appearances by the First and Second Defendants
Mr Richard Kalses for the Interested Party/Applicant

Date of Hearing: 4th November 2005
Date of Hearing: 16th December 2005

JUDGMENT

The Applicant was not a party to the original claim. The only became interested in the proceedings when on 8^th July 2005 this Court authorised the Claimant to recover certain items, equipment and machinery including a Motor Vessel by name “MV Good News”. The vessel is owned by the Applicant. For that reason they applied on 15^th July 2005 seeking the following orders:-

(a) That the Court issue an order setting aside and dismissing the order authorizing recovery of the vessel by the Claimant.

(b) That the vessel MV Good News be released and returned to the Applicant.

(c) Costs of the application.

The application was supported by the sworn statement of Pastor Raynold Bori.

On 10^th August 2005 the Court issued further Direction Orders requiring further sworn statements to be filed by both the Applicant and the Respondent. Pursuant to those orders the Applicant filed sworn statements from Pastor Johnson Vuti x 2, Luke Garae, Pastor Jim Waroka and Bradley Woods.

The Claimants and Respondent filed sworn statements in response by Victor Ron, Anderson Tevanu x 2 and Jonathan Bakon.

On 4^th November 2005 Mr Kalses and Mr Stephens agreed by consent that the Court determine the application purely on the sworn statements filed by each party and that written submissions be made within 28 days. Mr Kalses did not file any written submissions within 28 days making it impossible for Mr Stephens to make submissions in response.

All sworn statements were taken as read into evidence with no cross-examination. Regarding the sworn statements filed by the Claimant, the sworn statement of Jonathan Bakon is irrelevant to the issue of ownership of the Mv Good news. It is therefore not admitted. Similarly the sworn statement of Anderson Tevanu dated 13^th June 2005 is irrelevant to the issue of ownership of the vessel Good News and it is not admitted. Anderson Tevanu’s statement dated 9^th August 2005 contains allegations which are not substantiated by further evidence. Mr Tevanu has not produced any documents showing that Mv Good News was previously owned by the Claimants. His evidence is therefore inadmissible. Victor Ron’s sworn statement dated 30^th September 2005 contains only hearsay evidence and therefore are inadmissible.

On the Applicant’s side the relevant evidence are found in the sworn statements of Pastor Johnson Vuti dated 12^th September 2005, Pastor Jim Waroka dated 30^th August 2005, Bradley Woods of 18^th October 2005 and Pastor Raynold Bori’s of 15^th July 2005.

The issue is simple: Who owns the MV Good News?

Annex A of Pastor Bori’s statement of 15^th July shows a Permanent Certificate of Registry issued by the Vanuatu Maritime Authority on 10^th January 2002. The vessel is registered in the name of Raynold Bori. Annexure B shows that the Faith Christian Fellowship International Church, Incorporated raised the money and donated the boat in 2000. Their Credit Advice shows that on 17^th July 2000 the sum of VT2,045,300 were transferred into the CMC Bank Account at the ANZ Bank. Annexure C shows a Bill of Sale Between Bradley Wood and CMC dated 6^th September 2000 for the total sum of VT3,800,000. The receipts are annexed also.

With the above documentary evidence, which the Claimant did not challenge or rebut I am satisfied on the balance of probability that the Mv Good News is the property of CMC, the Interested Party and Applicant herein. I therefore accept their application as proper in the circumstances and grant the orders that they seek as follows:-

(1) That paragraph 2 of the Orders dated 8^th July 2005 be varied by deleting the sentence “a motor vessel, the Mv Good News currently under the care of the Christian Mission Centre”.

(2) The vessel Mv Good News be released forthwith and returned to the custody of the Christian Mission Centre in its current state without interferences, removal or damage to any equipment, machinery or any part of the vessel by the Claimant and/or its crew currently manning the vessel.

(3) The Claimant and the Applicant shall appoint a time today to hand over the vessel in a proper and amicable way.

(4) The Claimant will pay the Applicant’s costs of the application which are to be submitted and paid within 28 days from the date hereof failing which such costs be determined by the Court.

DATED at Luganville this 16^th day of December, 2005.

BY THE COURT

OLIVER A. SAKSAK

Judge