Mansan v Ben [2001] VUSC 102; Civil Case 025 of 1998 (17 September 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.25 of 1998

BETWEEN:

LEONG MANSAN

Plaintiff

AND:

BRUNO BEN

Defendant

Date of Hearing: Friday 14^th September, 5:30 p.m.

Coram: Before Mr Justice Oliver A. Saksak

Ms Cynthia Thomas

Counsel: Mr Bill B. Tamwata for the Plaintiff

Mr Hillary Toa for the Defendant

RULING

On an ex parte summons heard inter partes the plaintiff sought orders that the defendant be brought before the Court to be dealt with for contempt of the Orders of the Court dated 5^th July, 2001. It reads in paragraph (2)(iv) as follows:-

“Mr Ben shall vacate the property and deliver up vacant possession of all that land and premises comprised in Leasehold Title NO.04/2641/003 to Mr Leong Mansan within 21 days from today” (being 5^th July, 2001).

The application is supported by two affidavits of Mr Mansan of 24^th August, 2001 and 4^th September, 2001 respectively. The plaintiff’s evidence which is unchallenged is that –

(a) He went to the property on 27^th July, 2001, two days after the expiration of 21 days and found the property still locked and chained up (paragraph 5 of the First affidavit)

(b) On the same day he instructed his solicitor and they entered the property together with the Plaintiff’s employees after breaking open the lock and replacing it with his own. A letter was written by his solicitor to the defendant’s solicitor on 31^st July 2001 reminding them if the terms if the Orders and making further concessions to the defendant to remove his cattle within 7 days. (Annexure “B”)

(c) The defendant’s solicitor responded in a hand written letter dated 2^nd August, 2000 making certain proposals in respect of the removal of the defendant’s cattle which was causing great difficulties or hardship to him – (Annex “C”)

(d) The plaintiff’s solicitor replied on 8^th August, 2001 within the given 7 days rejecting all the offers made by the defendant, and among other things putting the defendant on notice that he would seek orders for contempt of court on 10^th August, 2001.

(e) The defendant’s solicitor did not respond until 31^st August, 2001 (Annexure “A”) of the plaintiff’s second affidavit). In the second paragraph of that letter the defendant indicated that he had a further claim to which the Plaintiff had made no response and that he intended to apply to have the orders of 5^th July, 2001 varied. In the second last paragraph of that letter it is stated as follows:-

“Our client is therefore putting your client on notice not to inter the property just yet until we have settled Mr Ben’s claims.”

(f) On 21^st August, 2001 the Plaintiff together with a Police Officer and his solicitor again entered the property to find that his own lock had been removed and replaced by another. That lock was again removed and replaced by the plaintiff. (paragraphs 10, 11, 12 & 13).

(g) Next day being a Wednesday the Plaintiff went to the property to plant seeds and to his surprise found that his chain and lock had been removed and replaced by a new chain and lock which was nailed into the post (paragraph 14).

The defendant has never appealed the judgment of the Court. And he has not made application to have the Orders varied. When therefore he wrote to give notice to the plaintiff not to enter the property until his claims are settled, he had blatantly defied the orders of this Court. His actions are clearly actions done in deliberate defiance of lawful Orders of the Court and amount to the grossest disregard for the Court and our legal system. Those actions clearly warrant the necessity of bringing the defendant before the court to answer personally for contempt of court order and to show cause why he should not be sent to prison for such contempt.

Now therefore the Court Orders that –

(1) The defendant be arrested and brought by the Police before the Court on Tuesday 2^nd October, 2001 at 8.00 a.m. to show cause why he should not be imprisoned.

(2) The defendant, his agents, servants, families and relatives and friends and restrained from further actions which interfere with or cause harassment to the plaintiff and/or his agents, servants or employees, and to permit the plaintiff to quietly enjoy the property.

(3) A copy of this Order be served on the Officer-In-Charge of the Police (Northern) in Luganville.

(4) The defendant pays the costs of and incidental to this application.

DATED at Luganville this 17^th day of September, 2001.

BY THE COURT

OLIVER A. SAKSAK

Judge