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Molbarav v Principal Electoral Officer [2002] VUSC 73; SC 114-02 (7 October 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)
Election Petition No. 114 of 2002

IN THE MATTER OF: The Representation of the Peoples Act [CAP. 146]

BETWEEN:

JOHN TARI MOLBARAV

Petitioner
AND:

PRINCIPAL ELECTORAL OFFICER

First Respondent
AND:

ELECTORAL COMMISSION

Second Respondent
AND:

HONOURABLE JEAN ALLAIN MAHE

Third Respondent
AND:

HONOURABLE JIMMYS IMBERT

Fourth Respondent

Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Mr Daniel Yawha of Counsel for the First and Second Respondents
Mr Ronald Warsal of Counsel for the Third and Fourth Respondents
No Appearance for or by the Petitioner

Date of Hearing: Monday 7th October, 2002, 9 O’clock a.m.

RULING

By Order dated 26^th July, 2002 at paragraph 5 this Petition was listed for hearing today.

The Petitioner is represented by Mr Kalkot Mataskelekele. He sent a letter by facsimile dated 4^th October 2002 at 2.30 p.m indicating to counsels representing the Respondents that he had advised the Petitioner to withdraw his petition for lack of sufficient evidence. Further, he indicated that he would be advising his client to personally appear in Court today to formally withdraw this petition.

Mr Molbarav, the Petitioner is not in Court this morning. That being so it is submitted by Mr Warsal that the Petitioner’s petition be struck out with costs rather than treating it as withdrawn or discontinued. There is no Notice of Discontinuance and on no previous correspondence or discussions had with Counsel for the Petitioner has it been disclosed or indicated that the Petitioner had intention to withdraw his petition. Mr Yawha supports this submission. Both Counsels are claiming orders for costs on a solicitor/client basis.

In view of the fact that both Mr Mataskelekele and his client are not available in Court today to formally withdraw this petition, and based on the submissions from counsels for the Respondents, I agree that this is a matter that must be struck out. Accordingly I order that Petition No. 114 be and is hereby struck out for want of prosecution. Further, I order the Petitioner to pay all costs incurred by all the Respondents herein which are incidental to this petition, on a solicitor-own client basis. These costs will be subject to taxation in the event that they are not agreed.

DATED at Luganville, this 7th day of October, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge