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Wokon v Government of the Republic of Vanuatu [2004] VUSC 66; Civil Case 165 of 2002 (9 August 2004)

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

Civil Case No. 165 of 2002

BETWEEN:

JOSELITO WOKON, CHARLES CYRIAQUE, RAYMOND BONGNAIM, SYLVANU ORREN & ALPHONSE LASSA
Claimants

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
First Defendant

AND:

THE MINISTER OF PUBLIC UTILITIES
Second Defendant

AND:

LOUIS WORWOR
Third Party

Coram: Justice Treston

Mr. Boar for Claimants
Mr. Loughman for First and Second Defendants
Mr. Toa for Third Party

Date of Hearing: 18 June 2004
Date of Judgment: 09 August 2004

DECISION ON DEFENDANTS' APPLICATION TO STRIKE OUT PLEADINGS

FACTS

The original Writ of Summons in this matter was filed on 27 September 2002. In an amended Supreme Court claim, the Claimants indicated that they represented 119 individuals from villages in North Ambrym, Vanuatu. The Claimants alleged that in 1993, Ministers of the Republic undertook to build an airport at Olal, North Ambrym and the Claimants alleged that they were the custom landowners and were not consulted nor gave their approval to the Government to carry out the building of such an airport, and in fact opposed it.

Despite the Claimants' opposition to the project, on 14 September 1994 Government employees began clearing and bulldozing the Claimants' properties, gardens, plantations and yam fields to construct an airport. The Claimants contended that such clearing work finished on or about 30 October 1994, but that the airport project itself was never completed.

The Claimants in their claim sought exemplary damages and costs on the basis of trespass and nuisance and also claimed that their constitutional rights had been breached.

The Defendants in their defence claimed that they had settled any claim in relation to the clearing of the land in various payments to the Third party and alternatively that the Claimants' action was statute barred under The Limitation Act No. 4 of 1991.

APPLICATION

In an application filed on 23 September 2003, the Defendants applied for an order that the Claimants' pleadings be struck out on the basis that the claim was statute barred and on the basis that the claim did not particularize how the Defendants had breached the Claimants' constitutional rights.

That application was supported by the Third party who had been joined to the action on 22 March 2004.

The Claimants filed an application to dismiss the Defendants' application on 17 October 2003.

SUBMISSIONS

In support of their application, the Defendants submitted that the claim was statute barred under The Limitation Act because the Claimants were claiming damages for the clearing of land which, on their own particulars, was completed at the end of October 1994 and the claim was not filed in the Supreme Court until 27 September 2002 which was just short of two years outside the limitation period.

Counsel for the Defendants argued that the Defendants were willing to pay outstanding amounts as agreed to the right parties but compensation was payable only to those who were affected and who had made their claims within time.

In relation to the allegation of constitutional breaches, although the Defendants accepted that there was no time limit in bringing such an application and although breaches of the stated articles, namely 5(1) (d) and 5 (1) (e) were particularized, the facts as pleaded in the claim did not support any breaches of those articles.

The Defendants submitted that the pleadings should be struck out and that the Claimants should pay the costs of the Defendants.

The Third Party, Mr. Louis Worwor, supported the application to strike out the pleadings on the basis that, in another claim under Civil Case No. 175 of 2003, he had claimed for payments made to him as custom landowner and none of the parties who were now claiming were on the list of those affected by the construction of the airport. The Third party confirmed that he agreed with the submissions that the action by the Claimants was out of time and in addition that there was no basis in law for any constitutional petition to be filed, particularly as the Third Party had been declared custom landowner of the affected property, and the amount that the Defendants had agreed to pay was specific and was the only commitment that the Defendants had made.

In response, the Claimants submitted that a sworn statement should have been filed in support of the application and that various correspondence from the Government particularly a letter of 19 March 1997 from the then Prime Minister of the Republic confirmed that the Government had agreed to compensate landowners for damage caused as a result of the Olal airport works.

In addition, the Claimants submitted that some of the named Claimants were included in the list of persons to be compensated as part of the payment to the Third party.

It was further submitted by the Applicants that the Court has inherent jurisdiction to decide whether or not to strike out a claim on the basis of the limitation period and that it could use its inherent powers to exercise its discretion to allowing a claim to continue because of the facts surrounding the lodging of a claim, the availability of lawyers, the parties' knowledge of rights, advise received, geographical circumstances limiting access to the Courts and the means of persons to engage the service of lawyers.

In relation to the constitution petition it was submitted that the Court must look into the substance of the matter rather than procedural formalities.

LAW

Section 3 (1) (a) of The Limitation Act NO. 4 of 1991 provides as follows: -

"LIMITATION OF ACTIONS OF CONTRACT AND TORT AND CERTAIN ACTIONS

3. (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

(a) actions founded on simple contract or on tort;..."

I am of the view that that time limit is absolute and must be complied with. That is in accordance with the principles contained in the Court of Appeal decision of Kalsakau v Hong & ors [2004] VUCA 2; CAC No. 30 of 2003 where the Court held that in relation to section 22 of the Island Courts Acts strict compliance with the time limits in relation to an appeal and an application seeking an extension of time for an appeal was essential. There is no provision in the Limitation Act for extension of the time limit in a claim based on a simple contract or on a tort, which appears to be the basis of this action.

In relation to the constitutional matters, the Supreme Court, at the time of the filing of this claim, had special jurisdiction under Section 218 of the Criminal Procedure Code [CAP. 136] which provides as follows: -

"SPECIAL JURISDICTION OF SUPREME COURT IN CONSTITUTIONAL MATTERS

PETITIONS UNDER ARTICLES 6, 53 (1) 53 (2) AND 54 OF THE CONSTITUTION

218. (1) Every application to the Supreme Court for the exercise of its jurisdiction under Articles 6, 53 (1), 53(2), and 54 of the Constitution shall be by petition and shall be valid no matter how informally made.

(2) The Supreme Court may on its own motion or upon application being made therefor by any party interested in the petition summon the petitioner before it to obtain any further information or documents it may require.

(3) The petitioner shall, within 7 days of the filing of his petition in the Supreme Court or within such longer period as the Court may on application being made therefor order, cause a copy of the petition together with copies of supporting documents filed in relation to such petition to be served on the party or on all those parties whose actions are complained of.

(4) Any party who is served with a copy of the petition in pursuance of subsection (3) may without prejudice to any other legal remedy available to such party apply to the Supreme Court for an order dismissing the petition on the ground that the petition is without foundation or vexatious or frivolous.

(5) Unless the Supreme Court shall be satisfied in the first instance that the petition is without foundation or vexatious or frivolous, it shall set the matter down for hearing and enquire into it. It shall summon the party or parties whose actions are complained of to attend the hearing.

On the day appointed for hearing, the Supreme court shall enquire into the matters raised by the petition and after hearing all parties concerned shall give its decision and its order or directions (if any) thereon in open court."

FINDINGS

During the course of submissions, the Claimants pointed out the names of parties who were in the list of those affected in relation the calculation of payment to the Third party. (See Annexure A2 to statement of Louis Worwor dated 19/04/04). They included the following: - Charles Sirair, Noel Atanas, Damian Bonguiui, Michael Korkor, Edmond Oven, Thimothy Worwor and Moses Lazar. At this stage a list of the 119 families and their individual names said to be the Claimants has not been made available to the Court and it would be a matter of sworn evidence as to their names and as to the damage which they alleged they individually suffered. It is presently impossible to ascertain whether or not some of those persons are indeed on the list that the Government relied upon to pay out its compensation to the Third Party. Those persons may well share in the monies payable to the Third Party but that is a matter of evidence. It may well be that, when all the evidence to be called is made available to the Court, a defence under The Limitation Act may well succeed but it is my view that it would be premature to strike out the pleadings at this stage before all the evidence is available to the Court.

In addition, there is no evidence before the Court to properly delineate the total area of clearance effected by the First and Second Defendants and to determine whether or not that area included the whole of the area of which the Third party was found to be the declared custom landowner or included some of the areas which the Claimants contend is their property of which they are custom landowners. That information was actually ordered by the Court on 27 February 2003. It has not yet been supplied.

I am of the view that it would be dangerous and premature for the Court to dismiss the Claim on the basis of The Limitation Act until all the evidence is before the Court. As I have said, at the end of the day it may be that the claim of some of the Claimants may be statute barred but that is a decision for the future.

As the Court of Appeal said in Kalses & ors v Le Manganese de Vate Ltd & ors [2004] VUCA 8; CAC No. 34 of 2003, the issues as to limitations plainly raise serious questions that should go to a full trial.

In relation to the claim for breach of the Constitution, this Court has always accepted that the pleadings amounted to a constitution petition. (See for example order of 24 March 2003). This petition predated the Constitutional Application Rules, which came into operation on 1 August 2003. Prior to those rules a petition had to be filed under section 218 of the Criminal Procedure Code (above) and "shall be valid no matter how informally made". A distinction has been drawn in the new rules between parties filing their own constitutional application and a lawyer filing on their behalf but such a distinction was not made for earlier proceedings under the Criminal Procedure Code.

I am of the view that it would be unjust for this Court not to consider such a constitutional petition as the Claimants have brought simply because of the form of that petition and clearly the substance appears at first instance to have some merit. It is hardly without foundation or vexatious or frivolous and I am of the view that it is appropriate for the Court to set the matter down for hearing and to inquire into it.

CONCLUSIONS

The Defendants' application to dismiss the claim for breach of The Limitations Act is adjourned until all the evidence is before the Court. The Defendants' application to dismiss what is effectively a constitutional petition is declined.

Dated AT PORT VILA, this 09th day of August 2004

BY THE COURT

P. I. TRESTON
Judge