Co: Mr Bill Bani Tangwata
for the Appellants
Mr Kiel Loughman for the
Respondent
JUDGEMENT
The Respondent was the
Plaintiff in Civil Case No.2 of 1998 in the Senior Magistrate’s Court. The
Plaintiff sought an
eviction from a plantation known as “Aplanala” situated
at Brenwei, North East Malekula. On 12th May 1998 the Court below
ordered that the Appellants vacate the plantation. The Appellants appealed
that order by lodging
their Notice of Appeal and their Grounds of Appeal on
19th May 1999.
They seek leave today end
their Grounds of Appeal and leave is accordingly granted. The Amended
GrounGrounds are as follows:-
“(1) The Learned
Magistratetrate erred in law in making the orders of 12th May, 1999
when there was insufficient admissible evidence before the Court.
(2)&t;"> &nnsp;&&nsp;;
sp Tpan>The Learned Magistrate erred in not requiring independent witnesses
to vethe Rdent’licat/span
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(3) &nbp; &nnbp;&&nbp;;&nbpp; &nsp;   The Learned Mned Magistrate erred in failing to allow the Appellants to
test the Respondent’s testimony under cross-examination.
(4) &nbp; &nnbsp; &nbssp;&nsp; &nbp; ;&nbpp;
The Leae Learned Magistrate erred in failing to hear the other two
named-defendantdefenior ting tder osup>tp> May
1999.”999.”
Grounds (4) is however withdrawn on the application of Mr
Tangwata.
I have heard submissions in support of the three
remaining grounds from Mr Tangwata. I have heard also responses from Mr
Loughman. I do not propose to discuss those submissions in any great detail.
Both counsels make references to the Minutes
of Proceedings. I therefore
deal with this appeal considering the submissions made in the light of those
Minutes.
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As to Grounds (1) it is clear from the Minutes that no
evidence was adduced. The circumstances of the case was such that it
was
necessary for the matter to have proceeded to a proper trial to enable
evidence to be called to prove in the main
–
(a)
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Wheth noorther there existed a “promise” made by the Respondent’s
father to the Appellants.
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For a Court to make an Order wssues before it are
clearly contentious, as here, is , is clearly an error. I therefore agree
with Mr
Tangwata’s submissions in respect of this ground.
As to Grounds (2) it is again clear from the Minutes that
no witnesses were d to give evidence. It was was not necessary only
to call
independent witnesses to verify the Respondent’s application. It was a
necessary requirement for both parties
to call evidence to support their
contentions. It did not happen that way and therefore I agree with Mr
Tangwata that
the Court erred.
As to Grounds (3) it is again
clear from the Minthat the Respondent’s testimony was not tested in
cro cross-examination.
All that was said were said over the Bar Table and it is
common knowledge that such statements cannot be evidence. See Appeal
Case
No.2 of 2001 Lucien Vatu v. Marino Debt Collection Traders Unreported
Judgement dated 15th February 2001. This is a case where the
Court below omitted to do exactly as it did in the present case. I apply
that
case as authority for allowing this appeal.
Accordingly this appeal is
allowed. And I Order as follows:-
(1) &nbs; &nbbp;&nnbp;&&nbp;; &nsp; Tpe Orders of the Cthe Court dated 12th May 1999 are hereby
vacated.
nbsp; p; &nbp; &nbssp;
pan>The Case Case be rebe referred back to the Court below for a hearing date and a
proper
trial.