Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Apsai v Lulula [2001] VUSC 24; Civil Case 009 of 1999 (20 March 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT LAKATORO, MALEKULA

(Civil Jurisdiction)

Civil Case No. 9 of 1999

BETWEEN:

GEORGE APSAI

WILLIAM APSAI

KALMAN APSAI

Appellants

AND:

RAYMOND LULULA

Respondent

Date of Hearing: 20th March, 2001.

Coram: Before Mr Justice Oliver A. Saksak

Mrs Anita Simeon – Clerk

Counsel: Mr Bill Bani Tangwata for the Appellants

Mr Kiel Loughman for the Respondent

JUDGEMENT

The Respondent was the Plaintiff in Civil Case No.2 of 1998 in the Senior Magistrate’s Court. The Plaintiff sought an eviction from a plantation known as “Aplanala” situated at Brenwei, North East Malekula. On 12^th May 1998 the Court below ordered that the Appellants vacate the plantation. The Appellants appealed that order by lodging their Notice of Appeal and their Grounds of Appeal on 19^th May 1999.

They seek leave today to amend their Grounds of Appeal and leave is accordingly granted. The Amended Grounds are as follows:-

“(1) The Learned Magistrate erred in law in making the orders of 12^th May, 1999 when there was insufficient admissible evidence before the Court.

(2) The Learned Magistrate erred in not requiring independent witnesses to verify the Respondent’s application.

(3) The Learned Magistrate erred in failing to allow the Appellants to test the Respondent’s testimony under cross-examination.

(4) The Learned Magistrate erred in failing to hear the other two named-defendants in defence prior to making the order of 12^th May 1999.”

Grounds (4) is however withdrawn on the application of Mr Tangwata.

I have heard submissions in support of the three remaining grounds from Mr Tangwata. I have heard also responses from Mr Loughman. I do not propose to discuss those submissions in any great detail. Both counsels make references to the Minutes of Proceedings. I therefore deal with this appeal considering the submissions made in the light of those Minutes.

As to Grounds (1) it is clear from the Minutes that no evidence was adduced. The circumstances of the case was such that it was necessary for the matter to have proceeded to a proper trial to enable evidence to be called to prove in the main –

(a) who planted the coconuts in issue

(b) Whether or not there existed a “promise” made by the Respondent’s father to the Appellants.

For a Court to make an Order when issues before it are clearly contentious, as here, is clearly an error. I therefore agree with Mr Tangwata’s submissions in respect of this ground.

As to Grounds (2) it is again clear from the Minutes that no witnesses were called to give evidence. It was not necessary only to call independent witnesses to verify the Respondent’s application. It was a necessary requirement for both parties to call evidence to support their contentions. It did not happen that way and therefore I agree with Mr Tangwata that the Court erred.

As to Grounds (3) it is again clear from the Minutes that the Respondent’s testimony was not tested in cross-examination. All that was said were said over the Bar Table and it is common knowledge that such statements cannot be evidence. See Appeal Case No.2 of 2001 Lucien Vatu v. Marino Debt Collection Traders Unreported Judgement dated 15^th February 2001. This is a case where the Court below omitted to do exactly as it did in the present case. I apply that case as authority for allowing this appeal.

Accordingly this appeal is allowed. And I Order as follows:-

(1) The Orders of the Court dated 12^th May 1999 are hereby vacated.

(2) The Case be referred back to the Court below for a hearing date and a proper trial.

(3) There be no order as to costs.

DATED at Lakatoro this 20^th day of March, 2001.

BY THE COURT

OLIVER A. SAKSAK

Judge

---

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUSC/2001/24.html