Ova v Samsen [2001] VUSC 78; Civil Case 028 of 2000 (25 July 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

CCase No. 28 of 2000

BETWEEN:

CHIEF MOSES JEFFREY OVA

First Plaintiff

AND:

CHIEF LUS

Second Plaintiff

AND:

class="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: tom: 1">

ALEXANDER SAMSEN

Defendant

Coram: Before Mr Justice Oliver A. Saksak

Clerk: Ms Cynthia Thomas

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Date of hearing: 23rd July, 2001

Counsels: Mr Silas Hakwa fe Plaintiffs

1"> Mr Saling N. Stephens for the defendants

INTERLOCUTORY JUDGEMENT

By Notice of Motion dated 10^th May, 2001 the defendant seeks Orders that–

1. &&nsp;;&nspp;&nssp & &nbp; &nbp; Civil Case No. 28 f 28 filed in the Luganville Supreme Court by the Plaintiffs herein be stayed until the Supreme Court file in respect of the original hearing be ed byRegisnd be made available fble for or i inspection by both parties.

2. &nnbsp;;&nspp;nbsp;nbsp;&nbp; &nnbsp;;&nspp;&nsp; &nsp; Suan further or othr other orders as deems fit.

3. &nnsp;&&nsp;;&nspp;&nssp;&nsp; an>Cpsts be reserved.

span "EN-Gbsp;

Mr Stephens relies on the affidavit of Samson Samsen in support of his application . It is dated 10^th May, 2001 . It was read into evidence . Mr Hakwa objected to its admissibility on the grounds that it is hearsay evidence; that the deponent was not and has never been a party to the proceedings in this Court or in the original proceedings in the Santo/Malo Island Court .

Mr Samsen is on record the Spokesman for the Defendant, his father.

His evidence is admissible on the basis of belief and knowledge of what has happened in the past to date, he having the day to day carriage of the matter as far as his father is concerned . He has made an important disclosure of a decision of the Court which the Plaintiffs did not disclose in the past . On that basis I think his evidence is admissible and it is so ruled.

The decision is in favour of the Plaintiffs . The Court made that decision in its appellatisdiction. On 21^{st October 1988 the Santo/Malo Island Court made a decision concerning land disputes on Matantas, Longrum and Longkar in Big Bay, Santo . It appears that the Plaintiffs were Plaintiffs and the Defendant herein and two other families which are not included here were defendants in that case . From the decision it appears that all Parties were Appellants . The decision favours the Plaintiffs herein in respect of land delineated by boundary Vikakara, Lorum creek, White Stone and Vunarira to Chief Moses, and land delineated by boundary Lorum creek, Old Natapoa Tree and White Stone to Chief Lus. It was declared that the Defendant has no ground in these areas . The decision of the Court was given in or about August, 1992. The Court specifically directed that people who occupy these areas who are not custom-owners should negotiate and agree leases. It appears that this has not happened between these parties. It appears that the Defendant has continued to occupy land and has continued to claim ownership disregarding lawful directions of the Court since 1992.}

As if that is not enough the Defendant now seeks to stay the proceedings merely for the sake of having access to the original file and the reasons for the decision.

In my view this is an unreasonable request . Much effort has been put into locating the original file to no avail. Since 1992 the matter is some 10 years old . To 1985 it is some 16 years old since its origin in the Island Court. The Court Clerks here today have not been in those positions for that long to know where the file is . The question is why ask for a File today 10 – 16 years later when it could have been easier in August 1992 immediately after the decision was in hand. The Defendant has not shown that he took steps in 1992 to request for the reasons for the decision . The judicial officer who decided the case is no longer in the jurisdiction.

The Plaintiffs have had judgment in 1992 . They have been nied the fruit of that judgment since then to date . There here is nothing to suggest that the decision is not a valid decision . It is sealed. It contains basically the conclusions of the Court, its declarations and its directions.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> It is therefore necessary to list the mafor trial. It is directed that the matter be listed for trial on Thursday 6^{th September at 08.30 hours.}

PUBLISHED at Luganville this 25^th

BY THE COURT

OLIVER A. SAKSAK

Judge