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Samson v Moses [2002] VUCA 27; CA 06-02 (23 October 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU


CIVIL JURISDICTION
Civil l Appeal Case No. 06 of 2002
BETWEEN:

ALEXANDER SAMSON

Appellant
AND:

CHIEF MOSES, JEFFREY OVA

First Respondent
AND:

CHIEF LUS

Second Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon . Chief Justice Daniel Fatiaki
Hon. Justice Bruce Robertson
Hon. Justice J. von Doussa
Hon. Justice Roger Coventry


Hearing Date: 22nd October, 2002


Counsel: Mr Saling Stephens for the Appellant
Mr Ronald Warsal for the First Respondent
The Second Respondent is not attending and not represented


JUDGMENT


This is an appeal from the judgment of Hon. Justice Saksak dated 10th July 2002. The claim came before the Primary Judge by way of a specially endorsed writ of summons filed on 11th October 2000. The Respondent claimed for the following relief:


  1. An order to evict the defendant, all members of his immediate family, his workmen or servants and/or agents who are living or working on any part of the land.
  2. An order that the defendant, all members of his immediate family, his workmen or servants and/or agents currently living on any part of the land be evicted from the land within 14 days from the date of the order failing which the Commissioner of Police and any Police Officer of the Republic of Vanuatu is authorised to enter upon the land where the defendant, member of his family, his workmen, servants or agents are and to remove them from the land by force if necessary.
  3. An order that in the event that the defendant and/or any member of his immediate family or his workmen, servant or agent who is living or working on the land disobeys any orders of the Court, such disobedience shall constitute contempt of Court.
  4. All back rents to be assessed

5. Damages to be assessed


  1. Costs of and incidental to this actions.

The primary judge issued the following orders on 10th July 2002:


  1. The Defendant, all members of his immediate family, his workmen or servants and/or agents who are living or working on any part of the land in question shall vacate the land peacefully, without destruction of any kind to any immovable structures including coconuts and fruit trees that are part of the land for which the defendant will be compensated for.

The defendant is given thirty (30) calendar days from the date of this judgment to vacate the land.


  1. The Defendant, all members of his immediate family, his workmen or servants and/or agents who are living or working on any part of the land in question who does not vacate after thirty (30) calendar days shall be evicted accordingly by the Commissioner of Police and any Police Officer of the Republic of Vanuatu who by this Order shall be authorised to enter upon the land to enforce this Order.
  2. In the event that the Defendant and/or any member of his immediate family, workmen, servant or agent who is living or working on the land disobeys any of these Orders, such disobedience shall constitute a contempt of Court, for which the offenders shall be charged.
  3. The Plaintiffs shall pay the Defendant compensation in the sum of VT2,850,000 in five (5) equal instalments of VT570,000. The first instalment of VT570,000 shall be paid on or before 8th August, 2002. The second instalment shall be paid on 27th September 2002 and thereafter on the last working day of each ensuing month until 31st December 2002.
  4. The Defendant shall issue receipts in respect of each payment and provide copies thereof to the Registrar of the Court.

The appellant filed a Notice of Appeal against orders 1, 2 and 3 of the orders of the Supreme Court of the 10th July 2002. The Appellant initially proceeded on two (2) grounds as set out on the Memorandum of Appeal Dated 7 August 2002.


During the course of the hearing, the Appellant abandons the first ground and proceeds only with the second ground. The Appellant consented that the trial judge has wrongly exercised his discretion to grant the order of eviction when Goldsborough J. expressly stated in his judgement and/or decision that all claimants in the land case need not be evicted from the land because of overlapping claims in the overall claim and boundary of “Matantas” land.


We are informed that nobody lives on the land since 1995. The Appellants live now in another area and do gardens for their own subsistence. In the present case, we are of the view that the trial judge has correctly exercised his discretion to grant the order of eviction.


The appeal must be dismissed. The costs for this appeal and are in the trial are awarded for the Respondents.


The appeal is dismissed. The costs of this appeal and the trial are awarded in favour of the Respondent.


DATED at LUGANVILLE, this 23rd day of OCTOBER, 2002
BY THE COURT
VINCENT LUNABEK JUSTICE
D. FATIAKI
JUSTICE B. ROBERTSON
JUSTICE von DOUSSA
JUSTICE R. COVENTRY


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