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Malites v Government of the Republic of Vanuatu [2009] VUSC 10; Civil Case 143 of 2005 (19 March 2009)

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

Civil Case No. 143 of 2005

BETWEEN:

PHILIPOE MALITES
First Claimant

AND:

MATHIAS & RACHEL MOLSAKEL
Second Claimant

AND:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
First Defendant

AND:

JOHN TARI MOLBARAV
Second Defendant

AND:

MANWAH LEONG
Third Defendant

Coram: Justice N. R. DAWSON

Date of Hearing: 19th February, 2009
Date of Decision: 19th March, 2009

Counsel: 1st Claimant: Mr. Kausiama
2nd Claimant: " "
1st Defendant: Mr. Loughman
2nd Defendant: Ms. La’au
3rd Defendant " "

DECISION

1. An Application has been made by the First Defendant, supported by the Third Defendant to strike out the claims the First and Second Claimants in this matter.
   
2. The First and Third Defendants advanced three reasons in support of their application to have this claim struck out. They are:-
   
   1. The Claims do not establish a cause of action or are an abuse of well established process and as such may be struck out by the Court pursuant to its inherent jurisdiction.
      
   2. Res Judicata, as the Claimants seek compensation for alleged losses suffered on eviction, a claim that has already been dealt with in Civil Appeal Case No. 4 of 2004.
      
   100. The Claims are time barred pursuant to the Limitation Act No. 4 of 1991 as the alleged damages are said to result from the execution of eviction orders made on 16 November, 1995 and executed on 11 September, 1997.
        

3. Rule 4.2 of the Civil Procedure Rule 2002 says:

"(1) Each statement of the case must:

.............................."

(c) Identify any statute or principle of law on which the party relies.....

It is argued by the First and Third Defendant that the Supreme Court Claim does not comply with this rule in that it failed to identify any statute or principle of law on which the claimants base their claim.

4. It is further argued by the First and Third Defendants that the claim fails to disclose a reasonable cause of action. They say that the Claimants have no right to a lease over the land in question and in the Supreme Court Claim the Claimants ask the Court to rectify the register and to make them the registered lessees. The First and Third Defendants argue that the claim also seeks compensation for loss allegedly suffered on eviction but does not identify any legal basis upon which any right for compensation might be based. For all those reasons they argue the claim should be struck out.
   
5. During the hearing of this matter the Claimants advised the Court that they would rely upon their written submissions. Their written submissions simply fail to address this first issue raised by the First and Third Defendant.
   
6. The Supreme Court Claim filed by the Claimants is nine pages long. It is difficult to identify within that document any statute or principle of law on which the Claimants are relying. The fact that the Claimants in their written submissions to the Court have failed to address this issue does not automatically mean that their Claim should be struck out on this basis alone. It is necessary for the Court to consider the basis of the Claim and consider whether it should entertain an application by the Claimants to amend the Supreme Court Claim so that it complies with the rules. If the matter was to go to a full Court hearing and if the Court was to find in favour of the Claimants the Court would not be in a position to automatically appoint the Claimants as the registered lessees of the land. That matter would also need to be addressed in any Amended Supreme Court Claim. The Claimants claim for compensation or loss allegedly suffered on eviction would also require amendment and should the Court decide to give leave to the Claimants to amend their Claim, the Claimants would need to identify the legal basis upon which any alleged right to compensation is based.
   
7. An Application to file an Amended Supreme Court Claim would be required before the case could go to a hearing. The amendments that would be required to be made to the Supreme Court Claim would be substantial and the Claimants might well have difficulty in persuading this Court that they were in fact allowable amendments pursuant to Rule 4.11 of the Civil Procedure Rules. Whether such an application to amend the Supreme Court Claim would be entertained by the Court depends entirely upon the finding of the Court on the second and third submissions of the First and Third Defendants to have this claim struck out.
   

Res Judicata

8. The First and Third Defendants say the Claimants seek compensation for those losses allegedly suffered by them on eviction from the land. The First and Third Defendants say that this matter was subject to Civil Appeal Case No. 4 of 2004 and therefore this matter is Res Judicata and submit that it is an abuse of process to seek to re-litigate this issue in this case.

9. It is argued by the Claimants that in Civil Appeal Case No. 4 of 2004, the parties were different, the issues were different, and therefore any argument based on Res Judicata is wrongly brought. The Claimants say that there are three new parties to these proceedings, including the Second Defendant. The Claimants submit that this is an entirely new case which is over the validity of the Third Defendant’s lease, that is to be heard and determined by the Court.

10. It is submitted by the Third Defendant that the Claimant’s submission is not strictly correct. They say that the Second Claimant and Second Defendant were not parties to Civil Case 02 of 2000 at Luganville in Vanuatu, but point out that both of those persons appeared as witnesses in that case. The Third Defendant submits that the changing of the names of the parties does not mean that a new action can be brought by these means when those same parties all appeared at the earlier trial and gave evidence during the course of that trial. It is also submitted by the Third Defendant that the total amount claim in Civil Case 02 of 2000 was a sum of VT 104,398,620. The Claim in this proceeding they point out is an amount of only VT 60,000 difference. It is submitted that the evidence that would be adduced at trial in respect of this matter would be by the same witnesses as at the previous trial dealing with essentially the same issues claiming what is essentially the same amount of money.

11. From the submissions made during the course of the hearing of this application and documents filed in this Court it is apparent that the Claimants are seeking to reshuffle the same pack of cards, hoping for a better hand to be dealt to them at a further hearing. The issues raised in this matter are essentially the same issues relating to the validity of the lease and a claim for compensation. The Claimants have had their time in Court, and have been heard, they have been to the Court of Appeal, and they cannot expect this Court to allow them to re-litigate these matters endlessly by naming different parties in their claim when those same parties were previously actively involved the earlier Court hearing.

Limitation Act No. 4 of 1991

12. It is submitted by the First Defendant that the Supreme Court Claim failed to disclose the principle of law on which the Claimants rely and any claim for compensation is most likely to be based on an alleged breach of contract or breach of duty. The First Defendant submits that the damages that the Claimants is alleged to have suffered seems to result from eviction orders made on 16th November 1995 and executed on 11th September 1997. On this basis it is submitted that a claim for compensation is time barred as a result of the Limitation Act No. 4 of 1991. These submissions of the First Defendant are supported by the Third Defendant.

13. The submissions made on behalf of the Claimants are about what they say is the history of these matters from 1971 to 11th September 1997. Their submissions do not address the issue raised pursuant to the Limitation Act.

14. The Limitation Act No. 4 of 1991 states in section 3:
    

"Limitation of actions of contract and certain actions

(1) The following action shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is the say:-

• (a) Actions founded on simple contract or on tort"
  

15. The claimants have failed to address this issue. Nothing has been pointed out to this Court to indicate that any part of the Claimant’s claim fell within in the six year period stipulated by the Limitation Act.

16. The application to strike out this Claim on the arguments raised based upon Res Judicata and the Limitation Act 1991 is granted and the Claimant’s Supreme Court Claim is struck out accordingly. On this basis there is no reason for the Court to consider whether it is appropriate to grant the Claimants the opportunity to amend their Supreme Court Claim.

17. Costs are awarded against the First and Second Claimants in favour of the First and Third Defendants at an amount to be agreed upon by the parties and failing such agreement then by taxation by this Court.

Dated at Port Vila, this 19th day of March, 2009

BY THE COURT

N. R. DAWSON
Judge