IN THE SUPREME COURT OF
REPUBLIC OF VANUATU
Civil Jurisdiction
Civil Case No. 175 of 1997 and
Comp. Case No. 22 of 1997
(Consolidated)
In the Matter of:
SABRA TRUST
BETWEE>
GEORGE ATKINSON
Plaintiff
AND:
GEOFFREY ROBERT GEE
First Defendant
AND:
JAMES NOALL
Second Defendant
/b>Coram :Jus :Justice Oliver A. SAKSAK
&nnbsp;;&nspp;&nsp; &nsp; &&nbp;;Mrs
Marilyne Sene Sese-Clerk of Court
Counsel: Mr Juzols he Plff
;&nbssp; &nsp; &nbs;&nbs; &nbpp &nssp;&n ;
Mr John
ohn
Malcolm for the First Defendr>
bsp;& p; &nbssp;
;
Mes Mes Messrsessrs Ssrs St
John Q.C. and Garry Blake for the Second Defendant
NS FOR ORAL DECISION
>
The Second Defendant applied by way of a Notice of Motion dated 21st
September 1998 and filed 26th October 1998 returnable on 15th
December 1998 for Orders, inter alia, that the matter be set down for the hearing of a
preliminary issue namely, for the
determination of the question as to whether or not the
signature of the Second Defendant contained in a document dated 31st August
1997 is a forgery. On the hearing of that Motion on 15th December 1998 the
Court had fixed such hearing dates for Monday 15th to Friday 19th
March 1999. The hearing actually lasted for two days from Monday to Tuesday this week.
After receiving evidence both oral and documentary from the Second
Defendant himself and from Mr Westwood, an expert handwriting
examiner from the Forensic
Document Services, and after hearing arguments and submissions from Counsel, I arrived at
the
conclusion and decision that the purported signature of the Second Defendant contained
in a document dated 31st August 1997 was a forgery.
Further Counsel for the Second Defendant applied as per paragraph 5 of
the Notice of Motion of 21st September 1998 that having found as I had, the
Court should then dismiss the Plaintiff’s Originating Summons and that all
Orders
made thereunder be set aside. I declined to grant the Orders sought. I now provide reasons
for those decisions.
I deal first with the issue of the signature of Mr James Noall and
whether or not it is a forgery. It is common knowledge that
he who alleges has the duty of
proof. Here the Second Defendant alleges that the purported signature is a forgery. The
onus of proof therefore was on him to prove that this was so on a balance of
probabilities, a civil onus of proof.
The Second Defendant himself gave oral evidence which show that he
denied signing the document dated 31st August 1997 which were admitted into
evidence as Exhibits P2 and P3. These were examined against the thirteen sample but
authentic signatures of the Second Defendant which were tendered into evidence as Exhibit
P4. These sample signatures have
been verified by the ABN AMRO Bank in Istanbul, Turkey.
His Second witness, Mr Westwood, an expert handwriting examiner gave
evidence regarding the method of examination and his findings
and conclusion. He concluded
in his Report tendered as Exhibit P9 that "…it was highly unlikely that the
questioned
signature was written by the writer of the control signatures."
The questioned signature and all the specimen signatures of the Second
Defendant were put together and enlarged. These were tendered
as Exhibit P8. Looking at
them for comparative purposes it is plain to me that the questioned signature is not the
same
as the control signatures without looking at the technicalities. I notice in the
questioned signature under ‘Noall’
the letter ‘o’ is doubled. In other
words the drawer wrote ‘o’ once and saw that it was probably too little
so he
wrote over it to make it slightly bigger. That is a mistake someone who has been signing
his signatures for more
than 50 years in my view is unlikely to make.
None of the evidence produced by the Second Defendant was rebutted or
disproved by the Plaintiff. The Plaintiff was not even
present at the hearing. For these
reasons I had no difficulty in coming to the same conclusion as did Mr Westwood and I so
ruled.
Counsel for the Plaintiff in cross-examining the Second Defendant, went
to the extent of attempting to destroy the credibility
of the Second Defendant’s
evidence but I was impressed by his evidence and could not make an assessment without the
opportunity of hearing the Plaintiff also. There was no such opportunity because the
Plaintiff did not avail himself to such
opportunity.
As regards the Second issue, Counsel for the Second Defendant submitted
that having found that the purported signature of the
Second Defendant was a forgery, that
the whole of the Plaintiff’s claims failed and should be dismissed. Counsel argued
that there was evidence showing an arrangement entered into by the Plaintiff with the
Second Defendant whereby Mr Noall
would hold the beneficial interest in the property in
issue until divorce proceedings were finalised and that the interests
were to be
re-assigned to the Plaintiff. It is argued and submitted that the purpose of the agreement
was to assist the
Plaintiff by perjured evidence to deny any interest in the property
referred to. It was argued by Counsel that there is evidence
that the Plaintiff had indeed
and in fact denied that he had any interest in the property during the proceedings in the
Family Court in Australia. That being so, it was submitted that such contract was
unenforceable and I was referred to the principle
in Chitty on Contracts, 23rd
Edition, paragraph 829 which reads:-
"Any contract which tends to abuse, prevent or impede the due
course of justice is against public policy."
Further Counsel submitted that the matter should be treated under the
principles of equity which requires that he who comes into
equity must do equity or
similarly come with clean hands.
This Court has no difficulty with the two principles stated above. They
have been acknowledged and applied by the Courts in this
jurisdiction in some past cases
and the position remains the same.
I simply declined to apply the principles for two basic and simple
reasons:-
- Unless and until the Plaintiff has been given the opportunity of being cross-examined on
oath as to the contents of his affidavit
referred to by Counsel for the Second Defendant,
the application was pre-mature.
- Unless and until the Plaintiff has been given the opportunity of cross-examining the
First Defendant, any dismissal at this
stage would be prejudicial in my view.
To dismiss the Originating Summons at this stage would be taking
short-cuts. There are serious implications flowing from the
allegations made by the
Plaintiff which require a proper hearing before the Court could apply the stated
principles. We
cannot take short-cuts nor can we allow it to be done. Due process must be
observed even if it means a lot of costs would be
involved. When a Plaintiff comes to
Court he comes on the premise that he is prepared to meet whatever costs involved.
Similarly when parties choose Counsel of their choice they do so on the premise that
whatever costs and time is involved, they
are prepared to meet costs. It is therefore
unacceptable to say that it is because of the cost factor that this Court must take
a
short-cut by dismissing the Plaintiff’s case.
PUBLISHED AT POLA, this 17th DAY OF MARCH
1999
BY THE COURT
Oliver A. SAKSAK
>
Judge
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