Wells v Naiser

Court Supreme Court

Case type Civil

Case number 960 of 2021

Hearing date 23 Jun 2026

Decision date 26 Jun 2026

Official PDF document

Judge(s) Justice Oliver Saksak

Defendant(s) Kapten Naiser, Kevin John Naiser, Joe Naiser & Remy Naiser - First Defendants; Republic of Vanuatu - Second Defendant

Claimant(s) Patrick Wells

Counsel Julian Wells for the Claimant/ Applicant (via telephone); Sakiusa Kalsakau for First Defendants as Counter Claimants/ Respondents
Freddie Bong for the Second Defendant

DECISION

1. By an application filed by the Claimant on 29th July 2025 Patrick Wells sought orders that-

a) Summary judgment be entered in his favour,

b) That the counter-claim of the First Defendants be struck out,

c) That the matter be listed for hearing of the quantum of damages,

d) For costs.

2. The application is supported by the sworn statement of Mr Wells filed on the same date.

3. The application was opposed by Mr Kalsakau who filed a short response at 8:30am on 23rd June 2026 about 30minutes before the hearing.

4. The Republic filed no response. Mr Bong informed the Court at the hearing that the Second Defendant would abide by orders of the Court.

5. At the hearing Mr Wells informed the Court that the claimant had withdrawn his relief for an order that the summary judgment be entered in favour of the claimant. He maintained the orders for a strike out of the counter-claim of the First Defendants, and for a short listing for the hearing of the damages claim and for costs.

6. Mr Wells submitted at the hearing that the First Defendants’ counter-claim should be struck out in its entirely. He advanced four grounds namely:-

a) That the issue is now res judicata,

b) That the First Defendants are now estopped from raising the same issue,

c) That the first Defendant have no standing, and

d) Because of a pending appeal before the Supreme Court it is an abuse of process to file the counter-claim.

7. Mr Wells relied on an earlier proceeding in 2017 instituted by the First Defendant’s father, late Nwarmokos in the case of Nwarmokos v Wells [ 2018] VUSC 2026. Mr Wells argued that the same counter-claim was filed in the proceeding but was dismissed upon the Court’s finding that the claimant’s lease was not registered through fraud or mistake. As such, Mr Wells argued that the First Defendants are now estopped from filing the same claim and that the matter is now res judicata.

8. Mr Kalsakau made a very short response in opposition to the application relying on what the Court of Appeal said in the case of Wells v Naiser [2025] VUCA 22 in particular to paragraph 10 of the judgment where the Court of Appeal said:

“ Despite the identical issue, the doctrines of resjudicata and issue estoppel have not been raised by the appellant. This was a correct decision. While res judicata generally has been accepted and applied in Vanuatu in Family Kalmet v Kalmet, the requirement that the same parties are involved has been expressly confirmed in Molsir v the Teaching Service Commission [2024] VUCA 34.”

9. Mr Kalsakau submitted that based on those cases, the application by the claimant is misconceived and should be dismissed.

10. I accept Mr Kalsakau’s submissions. The named first defendants are not the same persons who counter-claimed in the 2018 and 2025 proceedings. Therefore they are not estopped and their counter-claims not res judicata.

11. As to the ground of standing, it is premature to raise the issue at this stage of the proceeding. It is for the claimant to disprove that the named First Defendants are not family members of the late Nwarmokos Niaser.

12. As to the ground alleging abuse of process due to a pending appeal, it is irrelevant.

13. The answer to these issues are found within the judgment of the Court of Appeal and I am inclined to agree with Mr Kalsakau that the application by the claimant is misconceived and is an abuse of process itself.

14. At paragraphs 30 and 31 the Court of Appeal made specific consideration to the sworn statement of 12 May 2024 filed by the Director of Lands. In the second sentence of paragraph 31 the Court said:

“ We are unable to place much weight on this, we have referred already to what appears to be copies of the process conducted by the Department when the lease was registered. It seem to us that if there is to be a rehearing, the Director should explain those records and what they mean. Mr Wells should have the opportunity to answer the claim of irregularities.” ( my emphasis)

15. Then finally in paragraph 33 the Court said:

“ The case is remitted back to the Supreme Court hearing on the respective claim and counter-claim of the appellant Parick Wells and the various Naiser family members, and the Republic of Vanuatu.” ( my emphasis)

16. With those clear statements and directions, I fail to see how the hearing should now be short circuited by not allowing the counter-claims of the named first defendants. Both Mr Wells and the First Defendants will benefit equally from the hearing.

17. I therefore reject and dismiss the application by the claimant.

18. Costs will be costs in the cause.

DATED at Port Vila this 26th day of June 2026
BY THE COURT

Hon. Justice Oliver A Saksak