IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Appeal Jurisdiction)

CIVIL CASE No.192 OF 2007

BETWEEN:

MESSAIH VEREMAITO
Applicant/Appellant

AND:

SAM KALTALO
Respondent

Mr Saling Stephens for the Applicant and Appellant
Mr Hillary Toa for the Respondent

Date of hearing: 	10 March 2008
Date of Judgment: 	11 March 2008

JUDGMENT

This is an application to file an appeal out of time. The following is the background information leading up to the present application.

A notice of appeal is listed for hearing on 8 February 2008. At the beginning of the hearing, the Court queries about the dates of the Judgment of the Magistrate’s Court which is the subject of the appeal. Counsel Mr Saling Stephens informs the Court that the Judgment of the Magistrate’s Court which is challenged was a judgment issued by the Senior Magistrate’s Court in Port-Vila on 24 November 2006. The notice of appeal is filed on 13 November 2007 – almost one (1) year out of time for filing an appeal.

The Court directed the Applicant’s counsel on 8 February 2008 to file a proper application with sworn statements in support exhibiting the grounds as to why the Applicant did not appeal against the Judgment within the appeal requirement time period.

On 20 February 2008, by consent of both counsel, the Judgment of the Magistrate’s Court dated 24 November 2007 issued at Port-Vila and the Enforcement Warrants dated 15 October 2007 are stayed pending the determination of the Applicant’s application for leave to appeal out of time and the subsequent appeal if successful.

The Applicant filed his application to appeal out of time the Magistrate’s Court Judgment of 24 November 2006 on 3rd March 2008. He also filed a sworn statement in support of his application on the same date.

The application contains various grounds. They are not all relevant to appeal the Judgment of the Magistrate’s Court of 24 November 2006 out of time.

Ground 2 is the only relevant ground to this application. It states as follows:

"The counsel for the Applicant did file a Defence on 24th November, 2006 prior to the hearing conducted at 2.00PM. Counsel also wrote a letter to the Clerk advising the Court that the Applicant was on a Peace Keeping duty with RAMSI in the Solomon Islands and will hopefully remain in the Solomon Islands for 1 year or so. There was also a request by counsel that since the Applicant was out of the Court’s jurisdiction, the proceeding should be stayed until his return. Despite these requests, the Court proceeded to grant the Default Judgment…".

This ground is not disputed by the Respondent, Mr Sam Kaltalo or his counsel.

By perusing the Magistrate’s Court file records of CC 204 of 2006, it appears that Mr Sam Kaltalo filed a sworn statement on 15 November 2006 entitled: "Sworn Statement of Sam Kaltalo in support of Application for Substituted Service".

In that statement, Mr Sam Kaltalo stated that he served the Statement of Claim on the Defendant (Mr Messaih Veremaito) on 25 October 2006. He further said the Defendant did not file a Defence to date and the next hearing for this matter is listed for 24 November 2006. He also stated that on or about 10 November 2006, he attempted to serve the Direction Order of the Magistrate’s Court dated 9 November 2006 on the Defendant at his place of work at the Government Wharf in Port-Vila. He said he was informed by a staff member in the office at the Government Wharf that the Defendant was not at work because he was moving to the Solomon Islands on 12 November 2006 under the RAMSI programme. He further stated that on or about 11 November 2006, he attempted to serve the Defendant at his residence, but he was not there.

The following documents are contained in the Magistrate’s Court Civil Case No.204 of 2006: Facsimile transmission copies of Mr Saling Stephens’ letter of 24 November 2006, his Notice of Beginning to Act dated 24 November 2006, Statement of Defence dated 24 November 2006. The facsimile transmissions dated 24/11/2006 with a time indication of 13:15 hrs from Saling Stephens Fax No.(678) 36581 to Fax No.29899 which is the Port-Vila Magistrate’s Court Fax number. On the top of the Facsimile transmission covering letter of Mr Saling Stephens in the Magistrate’s Court Case file, it is handwritten: "Received at 15.01hrs.

The Claimant, Sam Kaltalo, is informed and knew that the Defendant Messaih Veremaito, was deployed in the Solomons Islands under the RAMSI Programme. Mr Sam Kaltalo knew that Mr Messaih Veremaito was outside Vanuatu. That same information was communicated to the Court by the defendant’s Counsel on the same date through facsimile transcription correspondence and also through the sworn statement of Mr Sam Kaltalo filed on 15 November 2006. There is no rational justification for the Court to grant a default judgment against the defendant in the circumstances outlined above on 24 November 2006. The best course for the Magistrate’s Court is to adjourn the hearing pending the return of the defendant. There is no evidence that the defendant is leaving the jurisdiction indefinitely. The available material information before the magistrate Court’s shows quite the contrary (1 year deployment period in the Solomon Islands with RAMSI).

The above circumstance justifies the Applicant to file his application to appeal out of time. Leave to appeal the Judgement of the Magistrate’s Court dated 24 November 2006 is, therefore, granted.

The Court is informed by Counsel Mr Saling Stephens that an application to set aside the Magistrate’s Court default judgment of 24 November 2006 was made before the Learned Senior Magistrate. The Learned Magistrate refused to set aside the default judgement and proceeded with the enforcement mechanism of the said judgement. This necessitated the defendant, Mr Messaih Veremaito, after his return from RAMSI in the Solomon Islands, to file his notice of appeal on 13 November 2007. Before the hearing of the present application, the Enforcement Warrants issued by the Magistrate’s Court in relation to the default judgement of 24 November 2006 were stayed pending the outcome of this application to appeal out of time and if successful the substantive appeal.

The grounds of the appeal are set out in the notice of appeal and also advanced in support of the application for leave to appeal out of time the Magistrate’s Court judgment of 24 November 2006.

The principal ground of the appeal is that the learned Senior Magistrate erred in law and fact in issuing a Judgment on the quantum of damages against the Applicant, then Defendant, without a finding of liability against the Defendant, Mr Messaih Veremaito.

On 24 October 2006, Mr Sam Kaltalo filed a claim in the Magistrate’s Court against the defendant, Mr Messaih Veremaito. He says he owns a white Kia Bus Reg # 2936 and Mr Messaih Veremaito owns a white Toyota Hilux Reg # 5668. On 14 April 2005, he stated Mr Veremaito’s bus, which was driven by a Mr Charlie Netvumei, was involved in an accident with his bus.

Mr Sam Kaltalo Claimed the accident was caused by the negligence of the defendant, Mr Messaih Veremaito. As a result of the accident, he said he suffered loss and claims:

(i)	Damages in the amount of 236,588 vatu for vehicle repairs,
(ii)	business losses incurred, and 
(ii)	costs.

The defendant, Mr Messaih Veremaito, filed a response and a defence to the claim on 24 November 2006. Mr Veremaito disputes that he is liable for negligence causing the accident and filed a counter-claim against Mr Sam Kaltalo.

On the face of the judgement of 24 November 2006, the Learned Magistrate granted the default judgment in favour of the Claimant, Mr Sam Kaltalo, in the amount of 236,588 and 28,000 vatu for costs.

I have pursued the Magistrate’s Court Civil Case No. 204 of 2006 filed records in order to ascertain whether the Learned Magistrate’s made any finding of liability against the defendant, Mr Messaih Veremaito, based on his negligence causing the motor vehicle accident of 14 April 2006 as claimed in the Magistrate’s Court Civil Claim No. 204 of 2006.

The notes of the presiding Magistrate reveals that on 24/11/2006 the Claimant, Mr Sam Kaltalo was present. The Defendant, Mr Messaih Veremaito did not appear. Mrs Sunita Bois-Singh appearing for the Claimant applied for a substituted service on the wife of the Defendant. The Claimant stated that they understood Mr Saling was to act for the Defendant. The Claimant did not receive any Notice of Beginning to Act and the Claimant applies for a default judgment. On the records of the Magistrate’s handwritten notes, it is read:

"Grant default judgment in favour of the Claimant in the sum of 236,588 VT.
Cost:
General cost:…………………………………23,000 
Wasted costs to legal counsel: ……………5,000 
………………………………………………...28,000

To be paid by 21 days from the date of this order. No interest at this stage but if there is any delay in payment party will be entitled to apply for interest on the principle sum.

2.	Grant application for substitute service under rule
Must serve this order on the wife as soon as possible."

It is clear that there is no record of a finding of any liability made against the defendant, Mr Messaih Veremaito, on 24 November 2006 by the Magistrate’s Court.

It is an error in law for the Learned Magistrate to determine and assess damages against the defendant, Mr Messaih Veremaito, without a finding that he is liable for negligence as the claimant claimed in his claim.

For those reasons, the appeal of the Appellant must be successful. It is so allowed. The Court makes the following orders:

ORDER

1.	Leave to appeal out of time is granted.
2.	The appeal is allowed.
3.	The judgment of the Senior Magistrate’s Court issued on 24 November 2006, in Civil Case No.204, between Mr Sam Kaltalo (Claimant) and Mr Messaih Veremaito (Defendant) is hereby set aside.
4.	All enforcement proceedings by the Magistrate’s Court in CC 204 of 2006 subsequent to Default Judgement of 24 November 2006 are quashed and set aside.
5.	The Civil Case No. 204 of 2006 is remitted back to the Magistrate’s Court in Port-Vila for a re-trial.
6.	The Applicant/Appellant is entitled to his costs of Vatu 60,000 against the Respondent, Mr Sam Kaltalo.
7.	Mr Sam Kaltalo to pay the above costs within 30 days.

DATED at Port-Vila this 11th day of March 2008

BY THE COURT

Vincent LUNABEK
Chief Justice