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Poilapa v Masai [2007] VUSC 109; Civil Case 21 of 2006 (18 December 2007)

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

Civil Case No.21 of 2006

BETWEEN:

PARAMOUNT CHIEF KALONTANO NANO POILAPA
3 TI-VATELAPA and MICHEL OVA
Claimants

AND:

KALOKAI MASAI, NARIKI NAMATA
and WILLIAM MALAS
Defendants

RESERVED JUDGMENT OF H. BULU

1. Whereas:-
   
   1. At the Chambers hearing on 10 December 2007, the Court directed counsels in this matter to file written submissions on the issue whether this Court has jurisdiction to hear and determine the Claim brought before this Court as the right being sought to be protected arises in customary law.
      
   2. Today 18 December 2007, Mr. Jack Kilu on behalf of the Claimants concede that this Court has no jurisdiction to determine the claim.
      
   100. Mr. Stephen Joel on behalf of the Defendants, has submitted that this Court has no jurisdiction to hear and determine the matter.
        
   4. The main issue in this proceeding is whether the determination that the Claimant is the Paramount Chief of Mele Village is in accordance with the customary law of Mele.
      
2. The Court takes account of the following:-
   
   1. Article 52 of the Constitution provides that Parliament shall provide for the establishment of Village or Island Courts with jurisdiction over customary matters.
      
   2. Section 10 of the Island Courts Act provides that an Island Court shall administer the customary law prevailing within the territorial jurisdiction of the Court.
      
3. Taking into account counsels views on the issue as stated, the Constitution and the Island Courts Act, it is my view that this Court lacks jurisdiction to determine the claim in this proceeding. The proper Court to entertain the claim is the Island Court.
   
4. The Court makes the following orders:-
   
   1. The Claim is discontinued.
      
   2. All orders made in this proceeding are set aside.
      
   100. Mr. Stephen Joel to file and serve written submission on costs by 25 January 2008.
        
   4. Mr. Jack Kilu to file and serve his reply by 8 February 2008.
      
   5. Decision on costs to be at 4.00 p.m. on 22 February 2008.
      

DATED at Port Vila, this 18th day of December, 2007.

H. BULU
Judge.