Wokon v Government of the Republic of Vanuatu [2005] VUSC 18; Civil Case 165 of 2002 (31 March 2005)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 165 of 2002

BETWEEN:

JOSELITO WOKON, CHARLES CYRIQUES, RAYMOND BONGNAIM, SYLVANU ORREN & ALPHONE LASSA
Claimants

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
First Defendant

AND:

THE MINISTER OF PUBLIC UTILITIES
Second Defendant

AND:

LOUIS WORWOR
Third Party

Coram: Justice P. I. Treston

Mr. Boar for the Claimants
Mr. Loughman for the Defendants
Mr. Toa for Third Party
Mr. Kalsakau for Applicant Joinder

Date of Hearing: 11 March 2005
Date of Decision: 31 March 2005

RESERVED DECISION ON APPLICATION FOR LEAVE TO APPEAL AND ON APPLICATION FOR JOINDER OF PARTY

FACTS

This action was commenced in September 2002 and claimed damages in relation to the Defendants' actions in clearing and bulldozing what the Claimant say was their properties, gardens, plantations and yam fields in relation to a building of an airport on the island of Ambrym. After that initial clearing, the airport project has never gone ahead but the Claimants in this action have sought recovery of their losses together with damages.

In Civil Case No. 175 of 2003, the Third Party Louis Worwor claimed VT8, 179, 694 for compensation due to him in relation to damage to his property at Fonmour which the Third Party claimed contained all the area cleared for the Olal airport. The fact that the Third Party was custom owner of Fonmour was confirmed in an Island Court decision of 28 February 1996 and later on appeal in the Supreme Court in a decision dated 16 June 2003.

The Defendant paid out to the Third Party the sum of VT3 million in 2001 but refrained from paying the balance of VT5, 072, 347 pending resolution of this action in Civil Case No. 165 of 2002.

In order to protect itself from any action from Claimants in Civil Case No. 165 of 2002, the Defendants applied to add the Third Party to the action because the Defendants' case is that the amount of VT8, 072, 347 was in final settlement of all the claims in relation to the Olal airstrip.

The order joining Louis Worwor as a Third Party to the action was made on 22 March 2004.

The Third Party did not appeal against that order until 3 September 2004 nearly six months later and now applies for leave to appeal out of time.

FURTHER APPLICATION

A further party, Benard Leingkone, through his first born son Laurent Leingkone applies for the Leingkone family be joined as a Claimant in this matter. The Leingkone family was the unsuccessful applicant for custom ownership of the Fonmour land but now contends that it should be party because part of the Olal airport was on land owned by that family. In addition part of the Leingkone claim is that none of the cleared area for the airport was ever on the Fonmour land belonging to Mr. Worwor.

APPLICATION FOR LEAVE TO APPEAL OUT OF TIME

I am of the view it is inappropriate to grant leave to appeal out of time because not only was the application grossly out of time (as I have already said filed nearly six months after the order was made) but it is inappropriate to remove Mr. Worwor as Third Party to the action until the Court has made factual findings on evidence as to precisely where the cleared area for the airport is and on whose land the cleared area stands. Matters have been made even more compelling by the present application by the Leingkone family because they contend, as I have said, that none of the cleared area was on the Fonmour land of which the Third Party is the declared custom owner. Until specific findings of fact are made it is this Court's view that it would be inappropriate to remove the Third Party from the action and thus, in the Court's view, any appeal it is unlikely to succeed. In addition no compelling reasons for the delay in appealing have been put forward.

It is my view that it was perfectly proper for the Defendants to protect their interests by joining Mr. Worwor as a Third Party to the action and in not paying the total monies until the proper beneficiaries of the compensation are identified by evidence tested in the Court. For those reasons namely the fact that the appeal was grossly out of time and the fact that the appeal has little prospect of success I decline the Third Party's application for leave to appeal out of time.

APPLICATION FOR JOINDER

I have already made a ruling on 9 August 2004 in relation to Defendants' application to strike out the pleadings in relation to the existing Claimants.

As I said, while the clearing of the land was completed at the end of October 1994 and the original claim was not filed until 27 September 2002 which is just short of two years outside the limitation period, the claim was also based on alleged constitutional breaches for which there is no time limit.

It is clear that under section 3 (1) (a) of The Limitation Act No. 4 of 1991 there is a time limit of six years for bringing of an action like this but as I said in my decision in August 2004 there is no time limit in relation to a constitutional application.

Thus, it is my view that the applicant Mr. Leingkone has satisfied me that he ought to be joined as a party and I order accordingly.

Dated AT PORT VILA, this 31^st day of March 2005

BY THE COURT

P. I. TRESTON
Judge