Leo v Vilvil [2009] VUSC 55; Civil Case 15 of 2007 (26 February 2009)

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

Civil Case No. 15 of 2007

BETWEEN:

FAMILY TOHO LEO, FAMILY ASI, FAMILY TAMBU MOLI, FAMILY MOLBATO AND BANAMOLI
Claimants

AND:

FAMILY BOE VILVIL
Defendant

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Saling N. Stephens for the Claimants
The Defendant appearing in person

Date of Hearing and Decision: 26th February 2009

DECISION

1. This matter was scheduled for hearing today by order dated 13th November 2008. Mr Ronald Warsal appeared for the defendant on that date. He is not in Court today. I am told by Mr Stephens he appeared along with him in the Senior Magistrate’s Court earlier this morning. The defendant informs the Court he had paid for his ticket to travel to Santo today and that he was seen by him prior to this hearing. It is unfortunate and regrettable Mr Warsal should abandon his client on a date he is aware there is to be a hearing. The Court must proceed to deal with this matter in Mr Warsal’s absence.
   
2. The short application this morning by Mr Stephens is for the Court to strike out the defence of the defendant because he has failed to comply with orders of the Court made at previous conferences. Mr Stephens relies on Rule 6.8 of the Civil Procedure Rules No. 49 of 2002. Mr Stephens alleges the defendant has not settled wasted costs ordered against him, further that he has not paid Hearing Fees and that he has not filed a defence and sworn statements.
   
3. The Court had not seen any defence by the defendant but only his sworn statement dated 18th September 2007, in which he deposed to an Appeal which has not yet been determined. He submits the Claimants do not have absolute rights to the land they are claiming and that therefore they have no cause of action. Therefore their claims should be dismissed with costs.
   
4. This necessitated a short hearing where by the Court required the defendant to give evidence on oath concerning the appeal. His evidence was that there was an appeal as he was made to pay a deposit fee of VT5.000 on 25th May 2006. He relied on a letter of 11th May 2006 by the Chairman of Area Land Tribunal notifying them of a conference on 25th May 2006, and a hearing on 5th June 2006. The fees were VT14.000 and the venue was Antas Hall. The receipt of payment of deposit fee is annexed with the letter or notice marked JB1. Mr Boevilvil was cross-examined by Mr Stephens.
   
5. Mr Stephens called the Chairman of Area Lands Tribunal Chief Vurobaravu Molisale to testify in rebuttal. This witness tendered as Exhibit C1 a letter he wrote to Messrs Kilu, Daniel and Warsal Lawyers on 13th October 2006 informing them that the Area Lands Tribunal has only received a verbal appeal by the defendant and had proceeded to deal with it in June 2006. However, before the Tribunal could deal with the verbal appeal, the defendant had withdrawn their verbal appeal by withdrawing their deposit fees of VT5.000. He further informed counsels that the appeal was not made in compliance with Section 17(3) (a) of the Customary Lands Tribunal Act. This witness was cross-examined by the defendant.
   
6. The Court heard oral submissions from Mr Stephens. Mr Boevilvil responded only briefly. During the Course of his submissions Mr Stephens aluded the Court to a defence filed by the defendant on 27th April 2007. It has 6 paragraphs and is a blanket defence.
   
7. The Court also discovered a receipt in the Court File dated 8th June 2007 showing a payment of trial fees of VT15.000 by Boevilvil. Non-payment of trial fees is therefore not in issue.
   
8. The issue for determination is first whether there is an appeal by the defendants which is yet to be determined by the Area Lands Tribunal. Second, if the Court finds there was no appeal, is the defence of 27th April 2007 a good defence?
   
9. I have considered the evidence produced before me by Mr Boevilvil and Chief Molisale and make the following findings –
   
   • (a) There is no evidence by the defendant showing a notice of appeal which he lodged with the secretary of the Area Lands Tribunal. Notice is required by Section 17 of the Customary Land Tribunal Act.
     
   • (b) If there was an appeal, it was a verbal one and the Area Lands Tribunal was not obliged to give notice for a purported hearing for a conference in May and a hearing in June 2006.
     
   • (c) If there was a verbal appeal, the Court is satisfied on the evidence of Chief Molisale that the defendant has withdrawn deposit fee of VT5.000 on 12th June 2006. As such the defendant had effectively withdrawn his appeal.
     
   • (d) If there was an appeal the Court is satisfied it was not made with the 21 days period required by law. The evidence is that the Village Land Tribunal delivered its decision on 30th June 2005. The defendant’s evidence was that he paid a deposit fee of VT5.000 on 25th May 2006. That is some 11 months outside of the 21 days period. Section 17(1) of the Act states that a notice of appeal must be given within 21 days after the announcement of a decision.
     
   • (e) The Court concludes there was no appeal and as such the defence of the defendant is not a good defence.
     
10. The Court therefore strikes out that defence and gives judgment in favour of the Claimants. The Claimants are entitled to the reliefs they seek in their claims of 17th April 2007.
    
11. The formal declarations and orders of the Court are:-
    
    • (a) It is hereby declared the defendants have not complied with the orders of the Sumbe Bulutahi Navanu Land Tribunal dated 30th June 2005 by refusing to vacate the land.
      
    • (b) The Defendants by themselves, their Agents, Servants and relatives are hereby ordered to remove themselves, their houses, personal effects and temporary structures from the land within 30 days from the date of this decision.
      
    • (c) The defendants will pay the Claimants’ costs of and incidental to this proceeding to be agreed, if not determined by the Court.
      
12. That is the decision of the Court.
    

DATED at Luganville this 26th day of February 2009.

BY THE COURT

OLIVER A. SAKSAK
Judge