Colardeau v Mamelin [1980] VULawRp 1; [1980-1994] Van LR 1 (14 August 1980)

[1980-1994] Van LR 1

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 4 of 1980

BETWEEN:

ANDRE COLARDEAU
Plaintiff

AND:

JEAN-YVES MAMELIN, SERGE ROBERT MAMELIN,
LOUIS EUGENE MAMELIN, RICHARD EDOUARD MAMELIN
Defendants

Coram: Mr Serge BRAUDO, a judge in the Supreme Court of Vanuatu
Mr Pierre de GATTTANDE, Chief Registrar

Counsel: Mr Cornette for plaintiff

JUDGMENT

[FRENCH LAW - EXECUTION - PROTOCOL]

The following judgment was delivered between,

Mr. Andre COLARDEAU, cattle breeder, residing in Port Vila
Plaintiff, of the first part

Having elected domicile at the law office of Leder-Jacquet, solicitors in Port Vila, represented by Mr. Rupert Cornette,

AND

Messrs Jean -Yves MAMELIN
Serge Robert MAMELIN
Louis Eugene MAMELIN
Richard Edouard MAMELIN
residing in Port Vila,
Defendants, of the second part who did not appear.

All are of French nationality.

By a writ served on the defendants on 21st July 1980, Mr. Andre COLARDEAU summonsed the co-interested parties MAMELIN to appear at a hearing before the Supreme Court on Thursday, 14th August 1980,

IN ORDER TO

Be present at the ruling on the division of the estate of Mr. Henri Louis Edouard MAMELIN, deceased in Port Vila on 23rd August 1972.

The plaintiff is a creditor of Messrs. Yves and Serge MAMELIN, pursuant to a final judgment handed down by the Port Vila Magistrate's Court on 8th November 1979, for the sum of 477,054 NH Francs, allowing for the instalments paid.

The plaintiff is at present experiencing difficulties in having the judgment executed, since the property in respect of which the debtors may be entitled to claim personal ownership is still in joint ownership.

This joint ownership is constituted by the estate of Mr. Henri Louis Edouard MAMELIN, deceased in Port Vila-on 23rd August 1972, to which the four children, respondents in the present proceeding, are equal heirs according to the notarised affidavits of 17th January 1973 and 7th July 1977.

The plaintiff therefore has an interest in the joint ownership being terminated so that he can exercise execution proceedings with respect to the share allotted to Messrs. Jean-Yves and Serge MAMELIN.

Because the plaintiff's opposing parties persist in maintaining a state of affairs that is prejudicial to him, he is obliged to bring an action which is based on the rights of a third party.

FOR THESE REASONS IT IS DECIDED AS FOLLOWS :

The plaintiff's action based on the rights of a third party is allowed.

The property inherited from the estate of Mr. Henri Louis Edouard MAMELIN, who deceased in Port Vila on 23rd August 1972, and held in joint ownership, shall be divided.

Before such division, the Court shall appoint an expert of its choosing to determine the extent of such property and to give his opinion on whether it can be divided in kind.

In the event that this is the case, the Court shall draw up a plan for the division of the property and, in all cases, determine the value of each property held in joint ownership.

Costs shall be paid by the defendants and the law office of Leder-Jacquet, solicitors, shall have the right to deduct a part of such costs.

Mr. Andre COLARDEAU was represented at today's hearing by Mr. Cornette, acting on behalf of the law office of Leder-Jacquet, where he requested a ruling on his application.

Although summoned regularly, the defendants did not appear and were not represented.

Therefore the Supreme Court,

Considering sections 1166 and 815 of the French Civil Code, which state that:

"Creditors may exercise all the rights and actions of their debtors, with the exception of those solely related to the person; [Transl.]; and

Nobody can be obliged to remain in a state of joint ownership and division can be brought at any time, notwithstanding prohibitions and agreements to the contrary. [Transl.]"

Considering that as a result of a certificate of non-opposition or appeal, issued on 21st January 1980 by the Registrar of the Magistrate's Court in Port Vila, which had jurisdiction at the time under the Protocol of 4th August 1914, Messrs, Jean-Yves and Serge MAMELIN did not appeal from the defended judgment delivered by the said Court on 8th November 1979 sentencing them jointly to the payment of the sum of 696,346 FNH principal plus interest at the legal rate, and of the sum of 100,000 FNH in damages, together with costs.

Considering that Messrs. Jean-Yves and Serge MAMELIN have not paid up and, according to the statements of the plaintiff which have not been contradicted by the defendants the only property in respect of which execution proceedings can be instituted is that held in joint ownership with their brothers Messrs. Louis Eugene and Richard Edouard MAMELIN.

Considering that according to an affidavit attested by witnesses of 17th January 1973 (numbered No. 20) their natural father, Mr. Henri Louis Edouard MAMELIN, of French nationality, born on 12th January 1915 in Port Vila, deceased at the same place on 23rd August 1972, leaving as sole descendants, on the one hand:

Mmes. Denise CERRETO (nee MAMELIN), Henriette FOUKOUARA (nee MAMELIN), Yvette MAMELIN, Chantal GUEPY (nee MAMELIN), and on the other hand: the four defendants in the present proceeding.

Considering that because of the disclaimers of rights made in due form before the Magistrate's Court in Port Vila on 11th October 1972 by Mmes. CERRETO, FOUKOUARA, MAMELIN and GUEPY the four above-named sons of Mr. Henri MAMELIN remained the sole heirs of their father, each in respect of a quarter.

Considering that the action brought against Messrs. Louis Eugene, Jean-Yves, Serge Robert and Roland Edouard MAMELIN alone is therefore admissible.

Considering that the grounds cited by the plaintiff in support of his suit have not been contradicted by the brothers MAMELIN and give justification to his request that the property be divided.

Considering that his claim should therefore be allowed.

NOW THEREFORE THE SUPREME COURT, by its decision delivered publicly by default, with possibility of appeal:

Orders the liquidation and partition of the property belonging to the estate of the late Henri Louis Edouard MAMELIN, deceased on the 23rd August 1972 in Port Vila.

Appoints Mr. Pierre de GAILLANDE, Chief Registrar of the Court to carry out this task and instructs that to this end he may, if he considers it necessary, obtain the assistance of one or several experts to be chosen by him to estimate the property divisible, both movable and immovable.

Orders that in the event that agreement cannot be reached by the parties on the proposed division in kind, or in the event of a refusal to take part in the proceedings, or if the movable or immovable property cannot be readily divided or assigned in kind, a public auction shall be organised by Mr. Pierre de GATTTANDE for the purpose of selling all or part of the property divisible.

Orders that the shares in the event of a division in kind or the proceeds in the event of a liquidation shall be made over to each of the co-heirs after the Chief Registrar, Mr. Pierre de GAILLANDE, has deducted from the property divisible the sums obtained from the public sale of the shares due to Messrs. Serge Robert MAMELIN and Jean-Yves MAMELIN, which sums he shall pay to Mr. COLARDEAU up to the amount specified in the judgment of 8th November 1979, in principal, interest and costs.

Orders that, if there are any disputes, the liquidator entrusted with the division shall draw up a report on the difficulties and shall refer the disputants to the Supreme Court for a ruling by way of summary proceedings.

Instructs that the costs of the division shall be considered as a privileged claim.

Sentences the brother MAMELIN jointly and severally to pay the cost of these proceedings.

Decision handed down on the date shown above.

14 August 1980