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Samson v Family Rakom [2004] VUSC 46; Civil Case 112 of 2004 (3 September 2004)

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

Civil Case No. 112 of 2004

BETWEEN:

NAMBI SAMSON, SULI MERIAM, NOEL NIKIAU & ORS
Claimants

AND:

FAMILY RAKOM, FAMILY KALMALAP, FAMILY MALASIKOTO & ORS
First Defendants

AND:

FAMILY NAPAU TASTUKI, FAMILY PAKO MATAUTAAVA & ORS
Second Defendants

Coram: Justice Treston

Mr. Nakou for Claimants
Mr. Roper & Mr. Leo for First Defendants
No appearance on behalf of the Second Defendants

Date of Hearing: 20 August 2004
Date of Decision: 3 September 2004

RULING ON FIRST DEFENDANTS' APPLICATION TO STRIKE OUT CLAIM OR ENTER JUDGMENT

CLAIM

In this action filed in the Supreme Court on 28 May 2004, one hundred and forty two Claimants claimed against the parties to Magistrates' Court Civil Case No. 266 of 2003, heard on appeal in Civil Case No. 121 of 2004 in the Supreme Court as First Defendants, and nine named Second Defendants.

It was alleged that the Claimants in or about 1980 were permitted by the Second Defendants to occupy land owned by the Defendants at Snake Hill, Efate (the property). It was alleged that the First and Second Defendants were purported custom owners of the property, and that, prior to 1983 or 1984, the Claimants with the verbal permission of the Second Defendants, later confirmed in writing, were allowed to reside on part of the property, which was the subject of an eviction order, for an indefinite period of time. It was alleged that the Claimants at least had an implied licence to remain on the property.

The Claimants further alleged that they erected shelters and cleared bush and planted gardens and erected fences and eventually had 40 houses. No expense had spared in their activities.

The Claimants also alleged that they had a prescriptive right to that property and in the absence of any declaration by the Courts as to custom ownership, their possession must stand. The Claimants sought unspecified damages and an order for compensation from unspecified Defendants together with exemplary damages and costs. They also claimed that the eviction orders in Civil Case 266 of 2003 should be dismissed and that they had a prescriptive right to the property.

APPLICATION

The First Defendants have applied to have the claim struck out in whole or in part or for judgment and for costs on the grounds that the Magistrates' Court order of 8 June 2004 prevents the Claimants from continuing the proceedings and that the action in the Supreme Court discloses no cause of action and is contrary to the principle of res judicata.

SUBMISSIONS

The First Defendants submitted that there was no contractual relationship between the Claimants and the First Defendants on the face of the Supreme Court claim. It was further submitted that there could be no prescriptive right to the property without adverse possession and the Claimants had pleaded that they were on the property by consent.
The Claimants submitted in reply that there was no res judicata because the issue had not been determined in the Magistrates' Court and that all the Claimants did not have the opportunity to contest the eviction orders in that Court. Also it was submitted that the Courts had not ruled as to custom ownership.

FINDINGS

It is clear that there are no specific allegation made in the pleadings against the First Defendants. The orders sought in the actions that any eviction order of the Magistrates' Court should be dismissed forthwith cannot be litigated in a later Supreme Court action. The matter is res judicata and can only be dealt with by the Supreme Court on appeal as it has been under Civil Case No. 121 of 2004. It is an abuse of process to endeavour to re-litigate that matter in the Supreme Court in this way in this action.

The claim for relief by way of prescriptive rights under the Prescriptive Right Act of UK 1832 cannot succeed because even on the Claimants' own pleadings there has been no adverse possession.

Section 3 of that Act provides: -

"When the access and use of like to and for any dwelling house, workshop, or other buildings shall have been actually enjoyed therewith for the full period of 20 years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement..."

In the pleadings the Claimants contended that they took possession of the property with permission and consent.

CONCLUSION

As there is no contractual or other relationship alleged between the Claimants and the First Defendants and as there is no allegation that the First Defendants made any representations at all to the Claimants and as the Claimants alleged that they were on the property by consent the proceeding against the First Defendants is struck out.

I award costs against the Claimants in favour of the First Defendants on the standard basis as agreed or as determined by the Court.

Dated AT PORT VILA, this 03rd day of September 2004

BY THE COURT

P. I. TRESTON
Judge