On 7th February 20 the plaintiff , Francois Marchand filed the Writ of Sumf Summons in this case.
There are two clclearly
set out in the statement of claim.
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The first relates to a case in
1996 which inv this defendant. The plaintlaintiff Marchand was ordered to
pay Vt 1,078,032
and costs. This was Civil Case 154 of 1996.
Second claim relates to another
case in 1996 (CC83/96.) when, by consent, BHP steel recovered Vt 5,281,349
and costs against
Francois Marchand.
The plaintifs that in case
154 of 1996 Allain Lew committed perjuperjury to obtain the judgment. In case
83/96 he was
forced to consent to the order.
There have been a number of
other proceedings directly oirectly involving these pare parties and their
businesses. Their
respective wives are sisters. The plaintiff has lodged two
affidavits setting out the bases of his claim and exhibiting supporting
documents. He says some documents are now to hand which were not available
before.
The defendant seeks to have
botims struck out. He says both matters have been fully litigaitigated and
in 154/96 a judgment
entered, in 83/96 a consent order made. There is no
evidence or real suggestion of what the perjury is alleged to be and the
few
new documents disclosed do not affect the issue at all. Further, he says,
both matters were taken to the Court of
Appeal when no Order in favour of
the plaintiff was made. In deed, Mr. Marchand applied to withdraw the
appeal. It was
dismissed and Vt. 10,000 in costs ordered.
The defendant says there are
other cases involving thisntiff. Orders for payment oent of monies and costs
have been made
and ignored. It is yet again, raising old issues which have
long been decided and the plaintiff won’t accept this.
<
I have had files C6,
CC154/96 and AC13/00 retrieved from storage and hand have read through them all,
particularly in
the light of the plaintiff ‘s submissions.
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The “Memoire d’Appel” of the
plaintiff ranged overde field involving the two two cases, and included
documents concerning
this defendant and potential criminal proceedings over
failure to pay customs duty.
There were eventually criminal
procee and those were dismissed, sed, not as the defendant’s counsel
suggested for lack
of evidence, but because they had been brought out of
time.
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If the plaintiff sought to
challenge the Orders in 154 of 1996 on the basis tsis there was perjured
evidence, or new
facts had come to light, or hidden documents had been found
then the correct course is to apply to the Court of Appeal for
leave to
appeal out of time.
I have nevertheless studied the
files in the light of what the plaintiff says and other documents he says
are new.
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In 83/96 Francois Marchand
signed consent orders.
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He was legally represented for
at least part of the proceedings. There was a substantial third party claim
which was by
Mr. Lew against Mr. Marchand, which was eventually not pursued
to the full in view of the consent order.
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I can find no basis upon which
claim 2 in these prings can be maintained. It . It covers the same ground as
83/96.
As far as clais concerned
it would appear Mr. Marchand’s complaintlaint is that he was forced to pay duty
on building
material which had been specifically exempted. That would have
been an obvious and live issue. It would appear that is why
he withhold the
specific sum claimed, not some round figure. It certainly was clear by the
time of the appeal.
In his decision dated 27 March
1998, Marum J says “The defendant submitted through his interpreter and
assistant that
he acknowledge that he owes that money and has made
arrangement by way of loan facilities. He further says he understood the
claim against him.
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“Thentiff’s counsel
applied for leave to enter final judg judgement against the defendant with no
objection from the defendant
and also for the defendant to pay the costs of
this proceedings. Also the defendant made no objection to the cost of the
proceedings.”
For the reasons set at above
therefore, I must dismiss these claims in their entirety. I award the
defendant his costs.
DATED AT PORT VILA, this
22nd day of May 2002
BY THE COURT
R. J. COVENspan>
Judge
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