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Republic of Vanuatu v Kilman [2007] VUSC 72; Civil Case 130 of 2007 (10 August 2007)

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

Civil Case No. 130 of 2007

BETWEEN:

THE REPUBLIC OF VANUATU
Claimant

AND:

WALTER KILMAN
Defendant

Coram: Judge Tuohy

Counsels: Mr. Botleng & Mr. Tougon for Claimant
Mr. Kalsakau for Defendant

Date of Hearing: 10 August 2007
Date of Decision: 10 August 2007

RULING

1. Late yesterday afternoon the Government filed a claim in respect of what I will call the Government office land at Lakatoro on which Namele leaves have been placed some weeks ago now by a member or members of the Kilman family. Ever since then the Court’s understanding is that no one has entered those Government offices and no Government business has been carried on from those Government offices consisting of particularly the Provincial Headquarters, the Police Station and the Court House and there may be others as well. Along with its claim the Government filed an urgent application seeking orders that the Namele Leaves be removed and that the Defendant Mr. Kilman and members of his family be prevented from going onto the land. With the Claim an application was filed and a sworn statement of Mr. Palen Ata the acting Secretary General of Malampa Provincial Council indicating that the claim was urgent because the people of Malekula were being prevented from receiving Government Services and becoming frustrated about the situation.

2. I ordered that the Urgent Application be given hearing time for 9:30 am this morning and that the papers be served immediately upon Mr. Kilman’s Solicitors and that was done. At 9:30am this morning I indicated that there was insufficient evidence before me on which it was possible to grant the application and I granted to the Government an adjournment until 1:30pm for them to file further evidence. They have filed a further sworn statement by Mr. Ata covering the Government’s alleged rights to occupation of the land. Now at 1:30pm Mr. Kalsakau has appeared with his clients and he has asked for an adjournment to provide some evidence in reply. In particular there a number of matters which he explained from the bar which I can see would have a bearing on whether the Urgent Application should be granted or not. Obviously he has had an insufficient time to put that evidence before the Court up until now.

3. Mr. Botleng opposed this application for an adjournment essentially because of the urgency of the situation from the Government’s point of view and because he indicated that negotiations had been carried on over the past two or three weeks since the Namele Leaves were placed but unsuccessfully so far. There was some finger pointing as to whose responsibility that lack of success has been but the Court is in no position to make any judgments about that.

4. The fact is that when the case was heard on 20 July 2007 relating to land adjacent to the Government Office Land, the Court and all parties were aware that Namele Leaves had also been placed on the Government Offices and that issue had to be addressed. In fact my recollection is that the Court itself at one stage encouraged the Government to expand its application to cover all matters at once but the Government after some vacillation decided to keep its application at that time purely to the adjacent land. The Government had the ability to issue this claim filed late yesterday and the urgent application at any time since the Namele leaves were placed and in particular at any time since 20th July when the Court made orders relating to the adjacent land if it chose to do so. It has chosen not to file an application and negotiate while the evidence is being filed. Rather it has negotiated and then only at the end filed the application and therefore it is faced with a situation now where the defendant rightfully says I haven’t had time to put relevant evidence before the Court.

5. So therefore the application for an adjournment is really irresistible. In fairness the Defendant must be allowed to place relevant evidence before the Court and to be given the reasonable opportunity of doing so. As I say, we could have been at the point to have heard this case today or even earlier than today if the Government had filed the present claim at or immediately after 20th July so it cannot complain now. It can not come at the last minute yesterday afternoon and then demand that the case be heard now.

6. On the other hand, it is obvious to the Court that it is a serious matter when the most important offices providing Government services to one of the major islands of Vanuatu is not operating, for whatever reasons. It is obvious from the papers and no one disputes that the Provincial Headquarters cannot go to work in their offices, the Police cannot go to work in their offices and the Court House cannot go to work in their offices. Maybe whether they can work somewhere else is another issue but obviously there is a major disruption to Government Services in Malekula at the present time. That is the reason for urgency in deciding this present application. So the adjournment I will give will be the absolute minimum and if that means working at night and over the weekend so be it. There is a large number of people whose services have been affected by the present situation in this dispute.

7. The Urgent Application is therefore adjourned until Tuesday 14 August 2007 for hearing at a time to be advised.

Dated at Port Vila this 10th day of August, 2007

BY THE COURT

C.N. TUOHY
Judge