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Sagan v Lo Chan Moon [2001] VUSC 90; Civil Case 016 of 2001 (10 August 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

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Civil Case No.16 of 2001

BETWEEN:

ALICK SAGAN

Plaintiff

AND:

class="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1om: 1">

RICHARD LCM

Defendant

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Date: 10^th August, 2001, 3.15 p.m.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Coram: Mr Justice Oliver A. Saksak

Ms Cynthia Thomas

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Counsel: Mr Hillary Toa for the Aant

Mr Saling N. Stephens for the Defendant

RULING

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Applicant by Notice of Motion dated 18^th May 2001 sought leave of the Court to file his claim out of time. The application is supported by a Memorandum of Leave containing the statement of facts and an affidavit in support by the Applicant also dated 18^th May, 2001. Amongst other things the Applicant deposes to an Agreement signed on 5^th January 1990 between himself and the Defendant.

The Applicant gives oral evidence confirming the truth of his statements. And he discloses the Agreement of >th January, 19 1990. He also discloses a copy of his Writ of Summons with his statements of claim. These are tendered as Exhibits P1 and P2. The Defendant discloses a copy of the Applicant’s first Writ of Summons dated 16^th May, 2000 as Exhibit D1. This is not filed in the Registry.

ass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> It is submiby the defence counsel that that the Applicant is out of time since that matter arises out of a relationship of master and servant. It is submitted that under the provisions of the Employment Act CAP.160 as amended, the time period allowed for claims to be issued is three years. It is submitted that the Applicant is clearly acting outside of that limitation period and that leave should be refused.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> I have had the opportunity of seeing the Aant’s writ of summons. It is clear to me that he is suing or damages as a result of a of a breach of contract. The appropriate law is therefore the Limitations Act No.4 of 1991. Section 3 of the Act provides –

“3(1) The following actions shall not be brought after the expiration of six years from the date on which the cahe cause of action accused, that is to say –

(a) nbsp; p; ; &nbbp; &nbp; &nbs;

class="Mss="MsoNormal" style="mar="margin-tgin-top: 1op: 1; margin-bottom: 1"> From the facts the Appliwas terminated in 1998. That is the beginning of the matter giving rise to the actionction. It is an action founded on a simple contract. It is therefore still within the time allowed in the law.

It is my view that this Application is not necessary. The legal provisions are clear aunsel should have been awar aware without the need to make application. The application has therefore made it necessary for the Defendant to be put to expense defending it. In the circumstances the Plaintiff will meet the Defendant’s costs thrown away as a result of the hearing of an unnecessary application.

The Applicant is at liberty to file his writ of summons at anytime.

DATED at Luganville, this 10^th day of August, 2001.

BY THE COURTn>

OLIVER A. SAKSAK

Judge