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Dinh Shipping Company v Tinwako [2000] VUSC 51; Civil Appeal Case 001 of 2000 (7 September 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)

Appeal Case No.1 of 2000

BETWEEN:

DINH SHIPPING COMPANY

Appellant

AND:

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

TREVOR TINWAKO

Respondent

Coram: Before Mr Justice Oliver A. Saksak

Ms Cynthia Thomas - Clerk

Mr Saling Stephens for the Appellant<

Respondent appearing in person

JUDGMENT

The Respondent sued the Appellant for the s vt68,962 in the Court below. He alleged that this su sum is outstanding for welding services done by the Respondent on the Appellant's ship. The hours of work spent were 177½ hours at vt500 per hour in accordance with a verbal agreement. The Appellant however paid only vt19,788 equivalent to vt150 per hour.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The matter first came before the Magistr Court on 13^th March, 2000. The Appellant's representative was then present and he denied the contract for vt500 per hour. The Court set the trial for 11^th April, 2000. On that date the Appellant was not present and the Court proceeded to hear the Respondent. The only reason given by the Appellant for not being present on 11^th April was that they had forgotten all about the hearing. In any event the Court below gave judgment in favour of the Respondent and ordered that:-

(1) &nsp; & &nbbsp; &nbp; &nbp; &nb p; /span>The Appellantllant pays the Respondent the sum of vt68,962.

(2) &nbbsp; &nsp; &nbbp;&nnbp;& &nb Coan>Costs ints in the sum of vt3,000.

(3t">(3) &nbbsp;& &nsp; &nsp; &nnbp;&

He submits as followspan>

(1)  p;&nssp;  p; &nbp; &nbp;

Court Findings

The Orders of the Court below dated 11^th April, 2000 wainal order of the Court. Unt. Under Order 60 Rule 3(1) of the High Court Rules 1964 the period allowable for appeal against a final decision is 3 months.

It is clear here that when the Court below ordered that the Aant pays on or before 30th April 2000 only some 20 days after the decision, was a denial of the Appellant's right to appeal.

(2) &nnsp;&&nsp;; sp Tpan>That the Learned Magistrate erred in fact and in law to hold that the Respondent is still entitled to further payments of vt68,962 when he has been paid in full according to the skills and performance he displayed under the contract.

Court Findings

1">

p class="MsoNoMsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> The Respondent in his submissions mentions another figure of vt350 per hour. This This was not mentioned in the proceedings in the Court below. We now have vt500, vt150 and vt350. Which is the correct amount? This can only be proceed by proper evidence in a proper trial. The sum of vt68,962 is therefore a triable issue and as such I accept the authority of Wendy Garu -v- Municipality of Luganville Civil Appeal Case No. 8 of 1999 as authority that the Order of the Court below be dismissed or set aside.

class="MsoNoMsoNormal" style="text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (3) &nbbsp;& &nsp; &nsp; &nnbp;&

Court Findings

The writ of execution is dated 18^th May 2000. It is obvious again that such execution was done within the 3 months appeal period. Any chattels taken shall be returned to the Appellants.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Based thereforehese findings I make the following orders -

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(1)&nb"> &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; This l ieaallo allowed.

(2) & p;&nssp;&nsp; &nsp; ;&nbpp; / Tpan>The Orders of s of the Court below dated 11^th April 2000 are hereby sede.

1"> (3) &nbbsp; &nbbsp; &nbp; &nbp; Thire we no orno order as to Costs. Each party will pay their own costs.

(4) & &nnsp;&&nbp;;&nbp; &nbp; ase is referreferred back to the Court below for a proper trial.

DATED at Luganville this 7^th day of September, 2000.

BY THE COURT

OLIVER A. SAKSAK

Judge

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