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Supreme Court of Vanuatu |
INSUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.11 of 1998
BETWEEN:
First Plaintiff
AND:
RAYMOND AND JOSETTE VALLETTE
Second Plaintiff
ANDan>
THE GOVERNMENT OF THE REPUBLIC OF VANUATU
represented by the ATTORNEY GENERAL
First Defendant
AND:
THE COMMISSIONER OF POLICE
Second Defendant
AND:
UAP INSURANCE
an Insurance Company by its agent
CAILLARD KADDOUR (VANUATU) LIMITED
Third Defendant
Coram: R. Marum MBE J.
Mr. Malcolm for the plaintiff n>
Ms. Ferris for the First and Second Defendant
Mr. Ozols for the Third Defendant
INTERLOCUTORY JUDGMENT
p class="MsoNormal"rmal" style="text-align: justify; mfy; margin-top: 1; margin-bottom: 1"> The first and second defendants filed their summons against the plaintiff foff for the Amended Statement of Claim to be struck out on the following grounds: -
1. Tee plgsdin nodo not contain an identifiable cause of action;
2. &nnbsp; Tpan>The plee pleadings do not contain particulars of any loss; 3. &nbssp; The pleadings adduce evidence, which should properly be adduced, if at all, at trial, not in the pleadings or
4. I thernlteve,tive, as a result of the above inadequacies contained in the pleadings, that the Defendant is givenxtra eeks n ich tuest further and better particulars and to file an e an AmendAmended ed D Defensefense.
To it is clear law that the pleading should not be struck out when it discloses a reasoreasonable arguable cause of action.
On the first ground, it is difficult at times to draw ends as to the particulars to a Writ of Summons if it did not discloses arguable cause of action. I find that the pleadings as challenge and the particulars therein are clear and understandable causes of action for which the Court is to determine the rights of the parties in the usual trial process and on hearing full argument of the action.
As to particulars of losses, even though not fully pleaded, direction oron orders can be made to provide better particulars to the applicant/defendant. Failure to by any parties, the rules provides for it enforcement.
On advancement by the defendant’s counsel as to adducing evidence in the pleading, some times it is not easy to draw lines as to what material facts constituting the cause of action and material facts goes to prove those facts which is evidence, and not allowed in pleading. The very question can be asked is that if some material fact goes to prove fact if allowed in pleading will at the trial prejudice or embarrasses a fair trial? I find that the material facts as pleaded are material facts constituting the action by the plaintiffs.
With these reasons the Summons is now struck out and the substantive matter between the parties must be set for trial to bring this action to finality. With these findings, it is high time that counsels must, for and on behalf of their clients to proceed on to trial, for the issues between the parties to be resolved once and for all, and only after that any party can exercise his right to appeal if he is not satisfied. The Court always maintains this stand, as this case is a long outstanding case already. Furthermore, the appellate court have made mention of numerous interlocutory application in this case already. There must be an end to this matter and the end is only by way of trial. This case could have been completed a long time ago, however interlocutory hearings has taken up more time than actually hearing the substantive matter between the parties, which in my view, was not the intention of the parties but for a final determination of their respective right.
In striking out thimons directive orders can be made to get going with tith the substantive matter to trial.
Dated at Port Vila, this 3rd day of August gust 2001.
R. MARUM MBE
JUDGE.
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