Government of the Republic of Vanuatu v Mahit [2009] VUSC 98; Civil Case 207 of 2007 (15 October 2009)

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

CIVIL CASE No.207 of 2007

BETWEEN:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
First Claimant

AND:

THE MINISTER OF LANDS
Second Claimant

AND:

SAM MAHIT
Defendant

Ms Jennifer Harders and Ms Jane Bulesa for the First and Second Claimants
Mr Collin Leo for the Defendant

JUDGMENT

This is an application for an order for the Defendant to be punished for contempt of Court Orders. It is filed on 28 April 2009 with a sworn statement of Kepry Wapaiat Wakanumune filed 28 April 2009 in support.

The events follow the chronology set out below:

• On 3 February 2009, the Court entered a summary judgment for damages to be assessed in favour of the Claimants and the Court struck out the Defendant's counter-claim.

Order 1 of the judgment of 3 February 2009 required the Defendant to execute the surrender instrument of his lease in a and lease title.

• On 2 March 2009, the State Law Office (S.L.O.) sent 3 copies of the Instrument of Surrender to counsel of the Defendant for the Defendant's execution of it. There was no response of that letter by the Defendant.

• On 16 March 2009, the S.L.O. wrote to the Defendant lawyer asking of the Instrument of Surrender to be executed by the Defendant. Counsel for the Defendant was not present and Mr Nigel Morrison was explaining that Christina was not in the office and he was trying to contact the Defendant to execute the Instrument.

• On 23 March 2009, the Court made Orders requiring the Defendant to execute the Instrument within 21 days. To date, the Defendant refused to execute the Surrender document.

It is submitted by counsel for the Claimants that the Defendant has refused deliberately to execute the Instrument despite the Orders of the Court. They say the Government has paid a large sum of money to the Defendant for the remainder of his lease (Vatu 58,000,000) but the Defendant is still on the land and refused to execute the Surrender Instrument. In such a circumstance, they say the Court can make order punishing the Defendant for contempt of Court Orders under Section 32 of the Judicial Services and the Courts Act and Rule 18.14 of the Civil Procedure Rules. The contempt of Court procedure is a means of vindicating the authority of the Court as well as enforcing the Orders of the Court.

The case of De Robillard (1997) is the guideline judgment by the Court of Appeal on the question of contempt.

Counsel for the Claimants further asked that the Defendant executes the surrender today if the Defendant Mr Mahit fails to sign the document, it will be his 3^rd Contempt of Court Order.

Mr Leo submitted in response to the Claimant's submissions as follows:

Rule 18.14 are discretionary powers of the Court to issue orders for contempt.

He continues, the Claimant's application is under woven with the summary judgment. He says the Defendant is intended to file an appeal against the summary judgment. He says the Defendant is seeking the indulgence of the Court not to punish Mr Mahit for contempt.

He makes admissions of the two (2) breaches of Court Orders by the Defendant Mahit. He finally says that Mr Mahit has this property which is the only property he has and if an execution is issued, he will lose his property and need time to find a place.

It is common ground that the period for an appeal has expired since the summary judgment of 2 February 2009. Leave of the Court is required to file an appeal out of time. Leave has not been granted and no leave has been sought. This is the first time a possibility of an appeal is mentioned after he was represented by four (4) different law firms.

Further the Defendant has accepted compensation of 58 million Vatu for the acquisition of the remainder of his lease. The Defendant also entered into a Deed of Release and Surrender on 3 November 2006. The Summary Judgment was issued in February 2009, the Defendant had ample time to find a place.

The Court is satisfied that the Defendant has breached the Court Orders on two (2) separate occasions:

First, on 3 February 2009; and

Second, on 23 March 2009.

I order the Defendant Sam Mahit to execute the Instrument of Surrender of his lease immediately failing which, it will amount to another contempt of Court Order and I should sentence the Defendant to imprisonment for his contempt.

The Defendant, Sam Mahit, accepts to execute the Instrument. I then permit Jane Bulesa to counter-sign the Instrument and the Defendant apologises for his contempts to the Court Orders.

Below are the final and formal Orders of the Court:

1. The Defendant, Sam Mahit, is sentenced to 2 weeks imprisonment for his contempt of the Court Orders of 3 February 2009 suspended for 6 months concurrent.

2. The Defendant, Sam Mahit, is sentenced to 2 weeks imprisonment for his contempt of the Court Orders of 23 March 2009 suspended for 6 months concurrent.

3. The Defendant, Sam Mahit, is ordered to execute the Instrument of Surrender of his lease immediately and Ms Jane Bulesa of the State Law Office is permitted to counter-sign the Instrument.

4. The Defendant, Sam Mahit, is to remove himself, his family and all his belongings by 10 days from the date of this Order.

5. The assessment of damages in CC 207 of 2007 is adjourned for hearing on Wednesday 4 November 2009 at 9.00AM o'clock.

6. The Claimants are entitled to their costs on indemnity basis assessed at Vatu 100,000 against the Defendant, Sam Mahit.

7. Such costs of Vatu 100,000 be paid by the Defendant by 30 November 2009.

DATED at Port-Vila this 15^th day of October 2009

BY THE COURT

Vincent LUNABEK
Chief Justice