Asemele v Marmar [2009] VUSC 119; Civil Case 19 of 2009 (16 September 2009)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(CIVIL JURISDICTION)

Civil Case No. 19 of 2009

BETWEEN:

ALEX ASEMELE
Claimant

AND:

DANIEL MARMAR, CHOISAN MARMAR, GERALD MARMAR, MAXIM MARMAR, TOMMA MARMAR, ANISETO MARMAR, RARA MARMAR, NORIS MARMAR, CHARLEY MARMAR, JOE MARMAR, MARCELLINO MARMAR, SILVIO PAURA and CHIEF KARAE NINISIA
Defendants

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Christopher Tavoa for the Claimants
Mrs Marisan Vire for the Defendants

Date of Hearing: 21st August 2009
Date of Oral Decision: 21st August 2009
Date of Judgment: 16th September 2009

JUDGMENT

1. On 21st August 2009, the Court made the following oral pronouncements after hearing evidence called by Mr Tavoa from four witnesses for the Claimant –

2. "The Defendants have not appeared today. They have filed defences and a counter-claim. But they have not filed sworn statements in compliance with previous court orders. They have not paid their hearing fees as ordered on 29th May 2009.

The Court has heard the Claimant and his three witnesses in relation to damage and assessment. The total sum claimed is VT2, 328,120.

The claims and evidence are uncontested by the Defendants. There will be judgment in favour of the Claimant for sum of VT2, 328,120. No interest is allowed on the sum. But the Claimant is entitled to his costs of the proceeding.

The counter-claim of the Defendants is struck out.

The Second Claimant is not in Court today. His claim is adjourned to another date to be notified.

Enforcement Conference will be called in 28 days time on 18th September 2009 at 8 O’clock a.m."

3. This judgment provides reasons for those oral decisions.

4. The Claimant claims damages in respect to his damaged garden crops and fruit trees. These are particularized at paragraph 3 of his claims filed on 26th May 2008. He alleges the Defendants did damage to his garden crops, fruit trees and other properties in December 2007. The value of all the properties is given at VT2, 328,120. This amount is based on the assessment done by Denis Philippe witnessed by Chief Chanel, assistant chief. These assessment reports are disclosed in the sworn statement of Chief Chanel Rarapua.

5. The Claimant relied on the evidence contained in his sworn statement dated 30th May 2008 (Exhibit (1)); sworn statement of Chief Chanel Rarapua also of 30th May 2008 (Exhibit (2)); sworn statement of Denis Philippe of 30th May 2008 (Exhibit (3) and sworn statement of Rara John (Exhibit (4) also dated 30th May 2008.

6. The Defendants filed a response on 6th June 2008 indicating they were disputing all the claims and that they would be making a counter-claim.

7. On 7th August 2008, the Court issued direction orders requiring the Defendants to file and serve their defences and counter-claims within 14 days. The Defendants did not comply with those orders until 13th October 2008 when they filed a defence and counter-claim. In the ensuing months despite further Court directions, the Defendants did not file any sworn statements in relation to their defences and/or their counter-claims.

8. The Defendants did raise in their defence that the land on which the Claimant grows food crops and fruit trees have been declared in favour of Defendant Daniel Marmar, and that the Claimant was working on the land without his permission. However, Mr Marmar failed to support these allegations by any sworn evidence.

9. At the hearing on 21st August, Mrs Vire informed the Court that she had difficulties in contacting her clients to have them come forward and give proper instructions to help her present their defence. She conceded her clients had not filed any sworn statements and that they had not paid hearing fees as ordered. As such, the Court excluded the Defendants from the hearing.

10. The Court then proceeded to hear the Claimant and his three witnesses pursuant to Rule 12.9(c) of the Civil Procedure Rules No. 49 of 2002. It states:

"Failure to attend.

(1) If a defendant does not attend when the trial starts:

• (a) ................; or
  
• (b) ................; or
  
• (c) the Claimant, with the permission of the Court, may call evidence to establish that he or she is entitled to judgment against the defendant."
  

11. Clearly, the Defendants had failed to attend on 21st August 2009 when trial commenced. This date was fixed by order dated 28th May 2009. Mrs Vire was present in Court at the time. Clearly also, the Defendants had failed to pay their portion of the hearing fees.

12. Clearly, the Claimant had established he was entitled to judgment based on the evidence he adduced and produced to the Court and accepted by the Court on the balance of probabilities.

13. The Court could not exercise any other discretion available under Rule 12.9. To do so would only bring prejudice and inconvenience to the Claimant.

14. The Court reaffirms its oral pronouncement and decisions made after the hearing on 21st August 2009.

DATED at Luganville this 16th day of September 2009.

BY THE COURT

OLIVER A. SAKSAK
Judge