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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL CASE No.26 of 2001
BETWEEN:
JOE LAUTO,
Cameraman editor, TBV of Port-Vila
Plaintiff
AND:
GILBERT DINH VAN THAN,
businessman of Port-Vila
Defendant
Coram: Chief Justice Lunabek
Counsel: Hillary Toa for the Plaintiff
Kalkot Mataskelekele for the Defendant
JUDGMENT
This is a Summons filed by the Plaintiff on 22 March 2001 against the Defendant. The Plaintiff and the Defendant entered into an agreement on 23 November 2000 for the Defendant to extract gravel from the Plaintiff’s quarry up until 4 May 2003. On 20 March 2001, the Plaintiff wrote a letter to the Defendant giving 3 months notice to terminate the agreement. The Defendant, then, on behalf of his company, withdrew from the contract and the quarry operation physically, as a result of the cancellation of the agreement, without removing any of the extracted material.
The Plaintiff’s main complaint is that for 4 months (from 23 November 2000 to 20 March 2001) the Defendant did nothing. He complained about the Defendant’s lack of action for that period until the cancellation notice of the agreement.
The Plaintiff, then, applies to this Court and claim for the following:
1. Compensation of his losses in consideration of the lack of action of the Plaintiff.
2. Damages and aggravated damages for abuse of dominant position and intimidation by the Defendant.
3. Compensation between the amounts owed by the Defendant with the losses of the Plaintiff.
4. Costs and interests.
The Plaintiff, Joe Lauto, is the Cameraman editor of the T.B.V. and owner of the land leasehold title No.12/0914/028, upon which quarry site is located.
The Defendant is the General Manager of SMET, a company involved in various trades in Vanuatu including the business of quarrying and currently operates 4 quarries in the region of the South Efate, excluding the Lauto quarry belonging to the Plaintiff.
The evidence is by affidavit material and oral testimony. Upon assessing all the evidence, the following facts are established.
The Defendant entered into a contract relating to the quarry with Mr. Alfred Lauto the Plaintiff’s father for a period of 5 years from 5 May 1998 to 4 May 2003.
Before the said contract came to end, the Plaintiff and the Defendant entered into a new agreement signed on 23 November 2000 and to operate until 4 May 2003. Mr. Alfred Lauto transferred the Land Lease title No.12/0914/028 to his son, the Plaintiff which was registered in the Plaintiff’s name at the Land Records Office on 17 April 2001.
After the contract signing, the Defendant’s company put the excavating machinery to commence work at the quarry site in December 2000. The excavating material at the quarry site consisted of old stock for the 1998 contract operation and the new stock excavated under the new contract of 2000.
Before the Defendant removes quarry from the site, the Plaintiff needed money to settle his debts. He approached the Defendant and demanded that he paid him money. The Defendant told the Plaintiff to wait until he took the quarry so that he could pay him.
While the Defendant’s excavating machine worked on the quarry site, Dick Lauto, the elder brother of the Plaintiff’s father, did make demands to SMET Company and the Defendant for payment of fees for the use of the original and only access road which passed through his customary land before reaching the quarry site.
As a result of the conditional stoppage by Dick Lauto of the use of the access road, the Plaintiff and his father (Alfred Lauto) allowed the Defendant to construct a new access road which would pass through Alfred Lauto’s land therefore by-passing Dick Lauto’s land.
On 20 March 2001 the Plaintiff, gave 3 months notice for cancellation of the contract of 23 November 2000.
It is not disputed that when the notice of cancellation was given to the Defendant, the excavator was still in the process of making the new access road from the quarry site as agreed by the parties. This has the effect of stopping also the building of the new access road on the Plaintiff’s father’s land. It is common ground that the new access road remains unfinished to the present time. (This was observed by the Court on the site visit with the parties on Thursday 6 September 2001).
The Plaintiff had no quarry permit. The Plaintiff’s witness, Christopher Ioan, the Director of the Department of Geology and Mines testified that the quarry permit (actual) was in the name of Alfred Lauto, the Plaintiff’s father and the Plaintiff had to wait until the permit expired to transfer it to the Plaintiff because there was no provision for a current transfer of the permit to the Plaintiff.
Can the Plaintiff operate a quarry without a valid quarry permit?
Under the Mines and Minerals Act [CAP.190], the Plaintiff cannot operate a quarry without a quarry permit. Section 65(3) of the Mines and Minerals Act [CAP.190] provides that:
“A quarry permit may state that it is transferable, and in the event it may be transferred with the approval of the Commissioner, but otherwise a quarry permit may not be transferred.”
Further, exploitation of the quarry without a legal permit is prohibited and sanctioned under Section 82(c) of the Act [CAP.190].
In this case, the Plaintiff’s witness evidence, the Director of Geology and Mines, is clear to this effect. Since Mr. Alfred Lauto’s quarry permit did not have a condition saying that it could be transferred, it cannot be transferred to anyone, not even his son.
Under the Mines and Minerals Act [CAP.190] Parliament was aimed at furthering a public policy of controlling the search for and development of minerals. Therefore, any contract made for the purpose of extracting gravel without a valid quarry permit is illegal. In the present case, the contract was illegal and unenforceable. Neither party had acquired rights under it and the Plaintiff/seller’s action failed.
If I am wrong in that view because the intention of Parliament under the Mines and Minerals Act [CAP.190] is not to prohibit the contract but the unauthorised means of performance, then, the contract is performed in a non-permitted manner. The contract is not illegal and it can still be enforced as between the parties.
However, having considered all the circumstances of this case, the following facts are established:
The Plaintiff did not produce any evidence to show any loss suffered by him. Further the cancellation of the agreement by the Plaintiff operates to the Plaintiff’s own detriment because while the Defendant still constructs the new access road and no gravel has yet been taken by the Defendant, the Plaintiff by letter of 20 March 2001 cancelled the agreement. It is more probable on balance to explain this by the fact that as the Plaintiff’s evidence show he needed money to pay for his debts. He demanded money to the Defendant. But the Defendant refuses on the basis that he will pay the Plaintiff when he will start to sell the extracted material.
The Plaintiff did not produce sufficient evidence to support the allegation of “abuse of dominant position and intimidation” and no evidence as to any loss suffered thereby.
In effect, the evidence of Robert Bohn, on behalf of the Plaintiff is that he is the Director of the Company, Melanesian Commerce and Industry (M.C.I.). His company is a competitor of the Defendant’s company. He offered to the Plaintiff to work on his quarry. But the Plaintiff refused and accepted to enter into an agreement with the Defendant to work on his quarry.
Witness Bohn says that while the Defendant had other sources of obtaining coral gravel, the Defendant wanted to block his company (witness’s) to get coral from the Lauto’s family. He admitted that although he has no evidence it is his opinion and belief. The last part of this witness testimony is not evidential fact, but opinion and is, thus, rejected.
The Plaintiff finally submitted that the Defendant who is a preeminent businessman, is fully aware of his influence at the grass roots level and also with Government.
This submission is baseless. There is no factual evidence before this Court warranting for such a submission. It is a submission based on belief/opinion. It must therefore be rejected. The plaintiff’s action also failed.
ORDER
The Court makes the following Orders:
1. That the statement of claim and claim of the Plaintiff is dismissed.
2. That the costs are for the Defendant and to be paid by the Plaintiff. The costs are to be taxed failing agreement.
DATED at PORT-VILA, this 20th DAY of SEPTEMBER, 2001
BY THE COURT
LUNABEK Vincent
Chief Justice
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