Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Iata v Hocten [2008] VUSC 28; Civil Case 194 of 2002 (28 March 2008)

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

CIVIL CASE No.194 OF 2002

BETWEEN:

NAKOU IATA, SOLOMON VATIE & JOHN DANMELIP
of C/- Vila North Area, Port-Vila, Vanuatu
Claimants

AND:

MICHAEL HOCTEN
C/- No.2 Lagoon Area, Efate, Vanuatu
Defendant

Mr Jacob Kausiama for the Claimants/Judgment Creditors - present
Mr George Nakou for the Judgment Debtor – not present
Mr Jack Kilu for the Interested Party

JUDGMENT

This is an application by Mr Jack Kilu on behalf of Mr Gérard Moéréo, Interested Party to this Civil Case No.194 of 2002.

The application is filed on 13 February 2008. Mr Gérard Moéréo filed a sworn statement on 14 February 2008 in support of his application.

The purpose of the application is to join Mr Gérard Moéréo as a party to this Civil Case No.194 of 2002.

A claim was filed by the Claimants against the Defendant on 4 December 2002.

On 8 March 2005 the Supreme Court, by the consent of the parties, issued a Consent Order. The parties to the proceedings and including the Deed of Settlement are reproduced below:

"CONSENT ORDERS

HAVING HEARD Mr Kilu, Counsel for the Claimants and Mr Nakou, Counsel for the Defendants, IT IS HERVEY ORDERED BY CONSENT OF THE PARTIES THAT:

1. The Fist Defendant, Mr Michael Octan shall personally admit part payment of VT 10,000,000 (Ten Million Vatu) to be paid to the Claimants on or before June 30, 2005;

2. The remaining balance of payments shall be arranged between the Claimants’ and the Defendants’ Counsels against the Third Party; and

3. The Second Defendants shall be dismissed from these proceedings.

4. Either party shall have liberty to apply to the Court for any further orders.

Dated at Port-Vila this 8th day of March 2005

J.I. Kilu

Counsel for the Claimants

George Nakou

Counsel for the Defendants

P.I. Treston

Judge"

"DEED OF SETTLEMENT

THIS DEED OF SETTLEMENT is made the 8th day of March 2005

BEETWEEN: IATA NAKAU of c/- Vila North Area, Port-Vila, Efate in the Republic of Vanuatu

AND: SOLOMON VATIE & JOHN DANMELIP of c/- Vila North Area, Port-Vila, Efate in the Republic of Vanuatu

AND: JOHN DANMELIP of c/- Vila North Area, Port-Vila, Efate in the Republic of Vanuatu

AND: MICHAEL OCTAN of No.2 Lagon Area, Port-Vila, Efate in the Republic of Vanuatu

AND: LINA OCTAN of No.2 Lagon Area, Port-Vila, Efate in the Republic of Vanuatu

AND: PAUL OCTAN of No.2 Lagon Area, Port-Vila, Efate in the Republic of Vanuatu

AND: ROBINO OCTAN of No.2 Lagon Area, Port-Vila, Efate in the Republic of Vanuatu

AND: MARIE HELENE OCTAN of No.2 Lagon Area, Port-Vila, Efate in the Republic of Vanuatu

RECTALS:

WHEREAS:

1. The First Defendant admits personally to pay the total sum of VT10,000,000 to the Claimants’ solicitor on or before June 30, 2005.

2. That the Claimants’ solicitor shall assist the Defendants’ solicitor to pursue recovery of the full American Investment Funds for the benefit of the Defendants and the Claimants, their representatives and such other person whom the Claimants and the Defendants agree that he/she had contributed into this scheme.

3. That the Defendants shall meet the expenses of the Claimants’ solicitor in pursuing by way of writing, telephoning, faxing and such other expenses incurred by the Claimants’ solicitor in pursuing recovery of the remaining balance.

4. The Defendants’ solicitor shall provide to the Claimants’ solicitor various documents concerning the investment funds and also names of persons and companies and their correspondences concerning this investment funds and the Claimants’ solicitor shall assist the Defendants’ solicitor to make full recovery of the remaining or full total sums that the Defendants and the Claimants are entitled to receive, including any interest or commission on the balance paid into the scheme.

5. The First Defendant and the Claimants do agree that the Second Defendants be dismissed from this action from the date of signing of this Deed of Settlement.

6. The Defendants shall pay VT2,000,000 to the Claimants’ solicitor on or before March 11, 2005, as payment of the Claimants’ solicitor’s costs to pursue recovery of the said funds.

7. Either party may apply to the Court on 48 hours notice to either party.

IN WITNESS WHEREFORE the parties have caused this Deed tot be executed on the day and year first herein before written.

SIGNED by IATA NAKAU at Port-Vila

This February 8th/3/2005

Name of Witness: FRANK B. SPOONER

Signature of Witness:

SIGNED by SOLOMON VATIE at Port-Vila

This February March 8, 2005

Name of Witness: Clement Bong

Signature of Witness:

SIGNED by JOHN DANMELIP

This February 7/3/2005

Name of Witness: Kai Patterson

Signature of Witness: "

Enforcement proceedings are sought and still in progress. The oral examination of the Judgment Debtor is set for hearing on 28 March 2008

By Consent of parties and their respective counsel, the oral examination proceeding is adjourned to 2 June 2008. Parties through their counsel indicate to the Court that they are negotiating a settlement between themselves. They need more time for that purpose.

Mr Kilu informs the Court that the purpose of the application is to protect the interest of Mr Gérard Moéréo. It is difficult to apprehend that submission. It is difficult to ascertain the kind of legal interest or right sought to be protected. Mr Moéréo is not a party to this case. The judgment is made by the consent of the parties in favour of the Claimants against the Defendant/Judgment Debtor.

Mr Moéréo through counsel says he gave money to the Judgment Creditors and also to the Judgment Debtors. He says he did so to help the parties to sort out the case between the parties so that they can live in peace. Mr Moéréo informs the Court that he has no claim against the Judgment Creditors nor the Judgment Debtor.

How to translate that noble Samaritan spirit into a legal right or cause is difficult to apprehend in this case.

The application is misconceived. It is therefore dismissed.

In fine, the Applicant, Mr Gérard Moéréo is a French speaking Court user. His Counsel, Mr Jack Kilu, does not speak French. He brings in a person to assist him in Court. However, it is obvious that that person has difficulties in understanding the legal principles, concepts and Court processes. It transpires clearly that the misconception resulted partly from the difficulties in language communication.

The presiding Judge is obliged to speak to counsel in English and or bislamar and then translate the proceedings into French to Mr Gérard Moéréo. Mr Moéréo at the end of the hearing informs the Court that he understands why he cannot be joined as a party in this proceeding and accepts it.

There is no Order as to costs.

DATED at Port-Vila this 28th day of March 2008

BY THE COURT

Vincent LUNABEK
Chief Justice