IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
BETWEEN:
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JOE LAUTO,
Cameraman editor,
TBV of Port-Vila
Plaintiff
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GILBERT DINH VAN THAN,
businessman of Port-Vila
Defendant
Coram: Chief Justice Lunabek<
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Counsel: Hillary Toa for the
Plaintiff
Kalkot Mataskelekele for the
Defendant
JUDGMENT
This is a Ss filed by the
Plaintiff on 22 March 2001 against the Defendant. The Plaintiff and thnd 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
s that for 4 months (from 23 November 2000 to 20 March 2001 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
his Court and claim for the following:
1. &nbs; &nbbsp; p;&nsp; &nbp; &&nbp;;&nbpp; &n sp;
Compensapensation of his losses in consideration of the lack of action of
the Plaintiff.
2. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
Damages gnd aggravated damages for abuse of dominant position and
intimidation by the Defendant.
3. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
<4. ;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp; &nbp;
Cants nterestsrests.
&n/span>
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 allevidence, the following
g
facts are established.
The Defendant entered into a
contract relating to the quarry wr. Alfred Lauto the Plaintiaintiff’s father
for a period
of 5 years from 5 May 1998 to 4 May 2003.
Before the said contrame
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
whas regisregistered in the Plaintiff’s name at the Land Records Office on
17 April 2001.
&nt">
After the contract signing, the Defendant’s company put the excavating machinery to commenommence 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 sitck Lauto, the elder brotherother
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 canceon of the contract of 23 No23 November 2000.
It is not disputed that when
the notice of cancellation was given to the Dent, 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 ws, Christopher Ioan, the Director of the
Department oent 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.
CanPlaintiff operate a
quarry without a valid quarry permit?
Under the Mines and Minerals
Act [CAP.190], the Plaf cannot operate a quarry without a quarry
permit. Set. 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 ioned under Section
8 82(c) of the Act
[CAP.190].
In this case, the Plaintiff’s
witness evidence, the Director ology and Mines, is clear tear 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
[CAP.190] Parliament was aimed at furthering a public poli 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 roduce
any evidence to show any loss suffered by him. Further the cancellation of
f
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.
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The Plaintiff did not produce
sufficient evidence to support the allegatf “abuse of dominant positiosition
and intimidation”
and no evidence as to any loss suffered thereby.
In effect, the evi of
Robert Bohn, on behalf of the Plaintiff is that he is the Director of the
C 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.
Wi Bohn says that while
the Defendant had other sources of obtaining coral gravel, the 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 factualence before this Court warranting for such a
submissimission. It is a
submission based on belief/opinion. It must therefore be
rejected. The plaintiff’s action also failed.
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ORDER
The Court makes the following
Orders:
1. &nbssp;&nnbsp;&nsp; & sp;& That the state
o of claim and claim of the Plaintiff is dismissed.
<
DATED at PORT-VILA, this 20th
DAY of SBER, 2001
p>
BY THE COURT
LUNABEK Vincent
Chief Justice
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URL: http://www.paclii.org/vu/cases/VUSC/2001/103.html
