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Molsakel v Natu [2002] VUSC 57; SC 002-02 (25 February 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.2 of 2002

BETWEEN:

MATHIAS MOLSAKEL

of Luganville, Santo in the Republic of Vanuatu
Applicant

AND:

PETER NATU

of Mavea Island, Santo in the Republic of Vanuatu
First Respondent

AND:

SOLOMON AMALEE

of Mavea Island in the Republic of Vanuatu
Second Respondent

AND:

JAMES TAMATA

of Mavea Island in the Republic of Vanuatu
Third Respondent

AND:

MOL VATOL

of Mavea Island in the Republic of Vanuatu
Fourth Respondent

AND:

TIMOTHY MOLBARAV

of Mavea Island in the Republic of Vanuatu
Fifth Respondent

AND:

THE DIRECTOR OF LANDS RECORD

Of Port Vila, Efate in the Republic of Vanuatu
Sixth Respondent

Coram: Before Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Counsel: Mr Saling Stephens of Counsel for the Applicant.
Date: 22nd February, 2002.

RULING

On a Summons (General Form) dated 20th February 2002 filed by Jeffrey Silas as Spokesman for the Boetara Trust & Others, as Applicant, they sought orders that I should disqualify myself from hearing this matter on two grounds:-

(1) “There is a likelihood of bias, given that the Plaintiff Mr Mathias Molsakel is a duly appointed Island Court Justice based in Luganville, Santo and whose position is overseen by his Lordship who is presiding judge in Santo.

(2) His Lordship had issued an Adoption Order dated 6th July, 2001 in favour of Mathias Sakele in Adoption Case No.3 of 2001 but which Order is now subject of an application to vacate.”

Mr Stephens raised objections to the summons on the basis that it was serve don him only this morning. He argues that the Rules require a two days period after service before it is heard. Secondly that the summons was irregular in that it was not filed by a lawyer.

Despite those submissions, I feel this is a case where I must use my discretion to abridge time. It is a simple application that does not need much time for preparation. No affidavits were filed in support of the application.

After hearing Mr Silas from the Bar Table and Mr Stephens in response, I am not satisfied that there is any evidence in support of the first grounds.

Grounds two is conceded, however Mr Silas was not a party to that proceedings nor were the parties he represents as spokesman. There were no challenges to the adoption order.

Despite those findings, I agree that I should disqualify myself from hearing this case, not because of the reasons as stated but because of Civil Case No.51 of 2001: Paul Livo v. Boetara Trust. I dismissed that case recently. The case concerns the same land to which Mr Mathias Molsakel is claiming declaration of ownership. Although Boetara Trust is not named specifically in this proceeding, I think it represents those persons named as First, Second, Third, Fourth and Fifth Respondents herein.

For this reason it is only fair and proper that this matter be allocated to another judge to determine. I therefore now disqualify myself expressly from Civil Case No.2 of 2002. I make no order as to costs.

Published at Luganville this 25th day of February, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge