Samsen v Ierget [2000] VUSC 39; Civil Case 021 of 2000 (3 August 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.21 of 2000

BETWEEN:

ALEXANDER SAMSEN

Plaintiff

AND:

SHEI IERGET

JULES NERVERSETTE

SIMON TABU

JEAN-GUY

Defendants

Coram: Mr Justice Oliver A Saksak

Ms Cynthia Thomas - Clerk

Mr Saling N. Stephens for the Plaintiff

Mr Willie Daniel for the Defendants

ORAL JUDGEMENT

In the course of this matter, the Defendants apply by way of a Notice of Motion seeking the following Orders that:-

1. The Plaintiff's (Respondent) case against the Defendants (Applicants) is without foundation, vexatious or frivolous.

2. The Ex-Parte Orders of his Worship Magistrate Jimmy Garae of 11^th April 2000 be set aside in its entirety.

3. The Respondent's Civil Case No. 21 of 2000 be dismissed.

4. The Respondent still has other proper and available forums which he must go back to and lodge his case with first before coming to the Supreme Court.

5. The Applicants continue to be entitled to the ownership of "Lomo Plantation" as per the decision of the Sergavuetsa Executive Council of Chiefs dated 21^st March, 2000.

6. The Respondent and his families, agents and servants be restrained from trespassing into "Lomo Plantation " and dealing with the same in any manner including the making of copra therein.

7. The Respondent and his families, agents and servants be restrained from harassing, threatening and/or assaulting the Applicants and their families, agents and servants.

8. The Respondent pays the costs of the application.

The Issues as I understand them to be are:-

1. Whether or not the Respondent's case is without foundation, vexatious or frivolous?

2. Whether or not the Magistrates Court the power to issue the Ex-Parte Orders of 11^th April 2000 which case involves land issues?

3. Whether or not the Respondent has exhausted all available avenues at village level before coming directly to the Supreme Court?

4. Whether or not the Applicants are entitled to ownership of "Lomo Plantation" as per decision of the Sergavuetsa Executive Council of Chiefs dated 21^st March, 2000?

5. Whether or not the Applicants are entitled to a restraining order against the Plaintiff?

6. Whether or not the Applicants are entitled to the costs of this application?

Issue No.1

The Respondent has issued a Summons General Form under Order 3.7 12.13 of the High Court Rules 1964. The Respondent claims declarations firstly concerning the validity of a custom will made orally in or about 23 January 1990, and secondly that by virtue of such will property known as "Lomo Plantation" has lawfully passed from the deceased, the late Marcel Warlan to the Respondent.

With respect, this is a wrong process. To seek declarations under a will the Respondent should have proceeded by way of an originating summons issued under Order 58 of the High Court Rules. Alternatively, the Respondent could have applied for letters of probate under a formal probate proceedings. But that is not the case here.

Further, the Respondent has applied in the alternative for compensation as damages for improvements. Again with respect, this is a wrong process. The proper cause would have been to issue a writ of summons so as to allow proper pleadings.

For these reasons, I conclude that the Respondent's action is without foundation and is therefore vexatious and frivolous. Accordingly Civil Case No. 21 of 2000 will be dismissed.

I wish to add further that I find it difficult to decide on the issue of damages for improvements on a piece of land whose ownership is still heavily disputed, without first determining the true ownership of that land. Clearly the definition of "Land" given in Section 1 of the Land Leases Act CAP. 163 is such that it includes all things growing on land and buildings and other things permanently fixed thereto, except for minerals, oils and gases. It is difficult to deal with these issues in isolation for to do so would be like 'putting the cart before the horse'.

Issue No. 2

It is clear to me that in land matters the Magistrates Courts have no jurisdiction. Civil Case No. 21 of 2000 arose as a direct result of the Magistrate's Court Order dated 21^st April 2000. The subject matter of Civil Case No. 21 of 2000 is a custom oral will which concerns the passing of land from one person to another. That is clearly a land matter and as such the Court below had no jurisdiction to deal with the ex-parte application. For these reasons the Orders of the Court below will be vacated and substituted.

Issue No. 3

It is clear from the evidence that there has been a meeting to discuss the will in question. That meeting was held on 21^st March, 2000. The Respondent was present with his wife but they both claim in evidence which has not been rebutted that they were forced to attend and which they say no sufficient opportunity was given to them to present their side of the case fully. The Respondent and his wife are obviously quite unhappy with the decision of the meeting. But they have not appealed against those decisions.

The Court takes judicial notice of the hierarchy of Courts in Vanuatu which begins at the lowest level with the chiefs to the area or district level, on to the island level and then to this court which is the national level. This Court agrees with Mr Daniel's submission that land is a vital issue to the Ni-Vanuatu and disputes concerning land has to be discussed properly and at the appropriate avenues. As I have said, it is clear that the Respondent is unhappy with the decisions of the meeting of 21^st March, 2000. He has not appealed and is out of time but the circumstances of this case is such that a right to appeal cannot be denied. Therefore the Respondent must be allowed to lodge his appeal through the proper process. They cannot come directly to this Court at this stage. They may come later but only after they have gone through the proper system. This Court will be the last resort to decide the matter. I agree with Mr Daniel that for this Court to hear the Respondent's case at this stage would be to deny the parties of their rights to appeal which would only create and leave behind a residue of injustice. For these reasons, I agree that the Respondent has not exhausted all avenues available at the lowest level which deal with custom.

Issue No. 4

The Applicants are entitled to ownership of "Lomo Plantation" as per decision of the Council of Chiefs dated 21^st March, 2000 but that decision is now subject to appeal. The entitlement is not an absolute one but is conditional upon Decision 3 which states -

"Executive ia iaskem strong long Mr Sei Erget we iheadman blong family Warlan blong oli mas tinkbaot Mr Alixan Samsen long hadwork blong hem taem hemi stap safa from sickness blong late Warlan."

Under the provision of statute law the Respondent is entitled to remain on the property which he has improved, repaired and/or worked in good faith by virtue of a custom will, until he is duly compensated for such improvements which if disputed, must be properly proven before a court of law. As such the Respondent is the proper party to be protected and he is appropriately entitled to a restraining order against the Applicants.

Issue No. 5

For the reasons given in relation to Issue 4 above, the Applicants are not entitled to restraining orders that they seek.

Issue No. 6

I am of the view that this case has benefited both parties equally and therefore no party should be claiming for costs.

ORDERS

These are the formal orders. That -

(1) Civil Case No. 21 of 2000 be and is hereby dismissed.

(2) The Respondent is given leave and directed to lodge an appeal out of time against the decision of the Sergavuetsa Executive Council of Chiefs to either an Area Council of Chiefs or to the Supernatavue Tano Council of Chiefs within 30 days from today.

(3) Pending the determination of the appeal, the Respondent is entitled to reside on "Lomo Plantation" and to the quiet enjoyment, occupation and use of the land.

(4) The Applicants by themselves, their agents and servants are hereby restrained from making copra, working the land and/or trespassing on the land until an appeal has been heard and determined, or until further order of this Court.

(5) The Applicants by themselves, their agents and servants are hereby restrained from harassing, threatening and/or assaulting the Respondent, his families, relatives, agents and servants until an appeal has been heard and determined, or until further order of this Court.

(6) The Orders of the Magistrate's Court dated 11^th April 2000 are hereby vacated.

(7) There be no order as to costs. That means that each party will have to meet their own costs.

DATED at Luganville, this 3^rd day of August, 2000.

BY THE COURT

OLIVER A. SAKSAK

Judge