Matsamatsa v Electoral Commission [2002] VUSC 69; SC 007-02 (3 October 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)
Civil Case No.7 of 2002

IN THE MATTER OF:

The Constitution
AND:
The Local Government Council
Election (Procedure Rules) Order
No.61 of 1982 (as amended)
AND:

IN THE MATTER OF: An Application by
MAXWELL MATSAMATSA and

KAMI MITA

Applicants
AND:

THE ELECTORAL COMMISSION

First Respondent
AND:

SANMA PROVINCIAL COUNCIL

Second Respondent
AND:

KALMER VOCOR and GAETON PIKIOUNE

Third Respondents

Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Mr Tom Joe for the First Defendant
Mr Daniel Yawha for the Second Respondent
Mr Richard Kalses for the Third Respondents
Mrs Leisandie Robertson as Agent for Mr Saling Stephens for the Applicants

RULING

At this hearing I am asked to rule on the application by the Applicants to be joined a Parties to Civil Case No.14 of 2001.

There is no formal application to that effect. The Court on 7^th May 2002 adjourned at the application of Mr Stephens for the Applicant in order to file the necessary documents and to serve same on the other parties including Mr Hillary Toa who represented Moses Wayne in Civil Case No.14 of 2001.

On 8^th July 2002 Mr Stephens at paragraph 2 of his letter put the Attorney General and the other solicitors involved in this case on notice that a Notice of Motion was expected to be filed and served. The Court file and record does not show any record of documents to that effect. Therefore there is no such Application.

In any event it is submitted by counsels present today that if there was one such application, it should be dismissed on the grounds that Civil Case No.14 of 2001 is now res judicata. Each Party present today through counsels seek costs in relation to today’s hearing.

Mr Richard Kalses refers me to an Application For Leave To Discontinue Action. Mrs Robertson as agent for Mr Stephens seeks an adjournment on the basis of Mr Stephens letter of 10^th October, 2002.

In my view this is not a matter that needs an adjournment. I refuse the application by Mr Stephens for an adjournment.

On the issue of Discontinuance, leave is hereby granted to the Applicants to discontinue their action against the Third Respondents. Their request that there be no order as to costs is opposed. Mr Kalses submits that the Third Respondents are entitled to their costs.

I agree. It is rather late in the proceedings that this application is made. It is clear that all Parties have incurred costs including the Third Respondents whilst defending themselves against the Petitioners’ claims. In that respect the Third Respondents will have an order for costs of and incidental to this proceedings.

As for the Application for leave to be joined as Party to Civil Case No.14 of 2001, it must be dismissed for the following reasons:-

(1) There is no formal application before the Court.

(2) Even if there is one, it is without merit, is frivolous and vexatious.

(3) Even if there is one, Civil Case No.14 of 2001 is res judicata.

In the circumstances, I Order as follows:-

(1) The purported Application of the Applicants be hereby dismissed.

(2) The Applicants will pay the First, Second and Third Respondents’ costs of today. The First Respondent’s costs are basically costs of return airfares to and from Vila, one (1) night hotel accommodation costs plus cost of transport to and from Pekoa Airport.

(3) The Applicants be given leave to discontinue their action against the Third Respondents.

(4) The Applicants will pay the Third Respondent’s costs of and incidental to this proceedings.

(5) The Registry to allocate a hearing date for the main Petition and notify all Parties accordingly.

DATED at Luganville this 3rd day of October, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge