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Jack v Deroin [2000] VUSC 24; Civil Case 087 of 1999 (23 May 2000)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 87 of 1999

BETW>BETWEEN:

REUBEN JACK and SAM NAPOU
Appellants

ANITA DEROIN
Respondent

ALIGN="CENT"CENTER">JUDGMENT ON APPEAL

This is an appeal against the Judgment of the learned Magistrate dated 29^th April 1999. rounds of appeal are set out in the notice dated 2^ndnd September 1999, leave to appeal out of time having been granted. Mr. Nako appeared for the appellant and Mr. Nalial for the respondent.

The Magistrate found that the appellants had an agreement with the Kalmet Community to mill timbers out of logs and be paid VT18.000 per cubic meter for this. It also stated that all timbers sawn would remain the property of the Community and were not for commercial purposes.

Further she found that there was no dispute that the respondent had removed the logs as logs and not sawn timbers. She framed the two main issues as first – whether the appellant could claim moneys from any other persons then the Kalmet Community and second whether the appellant is the right person to sue the respondent and whether the respondent was the right person to be sued.

The magistrate further found that the appellant only had a right to mill timbers out of the logs for the school and not for commercial purposes. Further that all timbers sawn remained the property of the Community. She went on to decide whom she thought were the proper parties and found she was not satisfied there was a case against this respondent.

I also have before me a transcript of the evidence in this case.

I consider each ground of appeal in turn.

Ground 1 – states that only an original party to a contract can be bound by its terms and sue or be sued, and thus the respondent was never a party to the contract in question. The Magistrate did not find that the respondent was a party to the contract in question. She found that was between Kalmet Community and the appellant.

Ground 2 – states that there was no affidavit or oral evidence from John Makal before the Court. It was he whom the respondent said gave her permission to remove the five logs. The respondent gave oral evidence of this agreement and produced supporting documentation. The Magistrate was entitled to accept this. If Makal had no right to give the permission or his permission caused a breach of the appellants’ contract then his claim should not have been against this respondent.

Ground 3 – dealt with a negotiation certificate, a lease and dealings with the land from where the logs came. Seth Kaurua in his evidence (page 12) accepted that when the cutting was taking place he was not registered and a negotiator.

Ground 4 – states that once the trees were felled and the five logs had been cleared of unwanted branches, marked and measured, cut to the required length and recorded by the appellant then the property in them passed to him. Under the agreement no property in the timber passed to the plaintiff. There is mention in the original statement of claim and in some parts of the appellants evidence that the original agreement had been completed and that these five logs were part of another agreement to cut timber for a church. The pleadings and evidence are not sufficiently clear to found this, and the main part of the appellants evidence went on the basis that it was the Kalmet Community agreement that was central.

Ground 5 – states that the Magistrate handed a register to the respondent and she read from it to give the dimensions of the logs. The Magistrate was entitled to do this, especially if it clarified some of the matters in issue.

Ground 6 – states that the respondent has benefited from taking logs without permission. The Magistrate made no specific finding as to whether the respondent’s ‘permission’ was genuine or not. She found that the respondent was the wrong defendant.

It might be that the defendant was owed money for sawing up logs into useful timber by the Kalmet Community. He says they couldn’t pay and allowed some timber instead of payment. He says it was some or all of this timber that the respondent took, after the appellant had started work on it. This might or might not be true. It might be this respondent was the ‘correct defendant’ or it might be the Kalmet Community or some other body was the ‘correct defendant’.

However, on the evidence presented to the learned Magistrate, she was entitled to come to the conclusions she did and I can see nothing to disturb those conclusions. This appeal is therefore dismissed with costs.

Dated at Port Vila, this 23^rd day of May, 2000.

R. J. COVENTRY
JUDGE

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