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Valele Trust v Vanuatu Commodities Marketing Board (VCMB) [2004] VUSC 115; Civil Case 015 of 2004 (18 May 2004)

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

Civil Case No. 15 of 2004

BETWEEN:

VALELE TRUST
Claimant

AND:

VANUATU COMMODITIES MARKETING BOARD (VCMB)
First Defendant

AND:

MINISTER OF TRADE
Second Defendant

AND:

CHARLEY PAKOA TARIPOALIU
Third Defendant

AND:

GEORGY CALO
Fourth Defendant

Coram: Mr Justice Oliver A. Saksak

Counsel: Mr Richard Kalses for First, Third & Fourth Defendants
Mr Peter Colmar – Spokesman for Claimant
No Appearance by Second Defendant.

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Counsel: Mr Peter Colmar as Representative of the Claimant.
Mr Richard Kalses for the First, Third and Fourth Respondents.
No Appearance for or by the Second Respondent.

Date: 18th May 2004

RULING

This is an ex parte application heard inter partes. It is an application by the claimants for interlocutory orders that pending the hearing of the case, that the First Respondent its agents and servants, including the other Respondents, continue to honour and specifically perform the written and implied terms of the Cocoa Export Authority No. 1/2002 which was granted by the First Respondent to the Claimants in writing dated 1st November 2002. The Claimants also claim for costs and disbursements in respect of the application.

Mr Peter Colmar, a non-lawyer presents the application on behalf of the Claimants after seeking leave to appear without legal representation. He relies on his affidavit of 12th May 2004 in support of the application. Mr Kalses objects to paragraphs 9 and 16 (in part) on the basis that they contain opinions of Mr Colmar. I rule against him in respect of paragraph 9. As to paragraph 16, I accept that part of it begining “in my opinion .....” to the end is opinion and accordingly it is excluded. Mr Kalses objects also to Annexure “B” on the basis that Mr Colmar is not the writer of the letter. I accept Mr Colmar’s response that the letter does not contain relevant evidence in relation to today’s application and therefore rule against the objection.

Mr Kalses produces oral evidence from Kirby Abel and Dumont Boe. Both give evidence alleging breaches of the terms and conditions of the Cocoa Export Authority by the Claimants. That it was due to those breaches that the Authority was terminated by the Second Respondent. Further their evidence shows that there is purported breach by another licensed exporter who has not had their Authority terminated in the same manner as the Claimants.

Mr Kalses urges the Court to refuse the Claimants’ application on the basis of the breaches.

Mr Colmar makes written submissions dated 14th May 2004 in support of his application. I have read those submissions and considered them in making this ruling. Further Mr Colmar submits orally that he objects to the evidence of Dumont Boe on the basis that it is unreliable in the light of his suspension on charges which are pending hearing in this Court. The Court understands that Dumont Boe has not yet entered a plea and as such remains innocent unless and until proven guilty.

The Court accepts his evidence on that basis.

For the Claimants to succeed in their application they must satisfy the Court that (a) there is a serious question to be tried, (b) the balance of convenience lies in their favour.

From the evidence before me, I am satisfied that there are serious questions to be tried. Further I am satisfied that the balance of convenience lies in favour of the Claimants. Under these circumstances the Court accordingly grants the Order sought by the Claimants. This Order is made on an interim basis. The following orders are therefore issued –

(1) Pending the hearing of the Claimant’s case, the First Respondent its servants and agents, including the other Respondents herein will continue to honour and specifically perform the written and implied terms of the Cocoa Export Authority No. 1/2002 granted by the First Respondent to the Claimants in writing dated 1st November, 2002.

(2) This case be hereby listed for hearing commencing on Wednesday 23rd June 2004 at 0830 hours.

(3) The Respondents be required to file and serve their statements of evidence by 4.30 pm Tuesday 22nd June 2004.

(4) Costs to be in the cause.

DATED at Luganville this 18th day of May, 2004.

BY THE COURT

OLIVER A. SAKSAK
Judge