JUDGMENT
Thisn appeal against the striking out of the
appellant’s counterclaim on the basis that ihat it was out of time and could not
be saved by the provisions of Section 14(c) of the Limitation Act 4 of 1991.
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This case arises from a claim for the balance of fe owing on a contract entered between the respondent comp company and the
Government of Vanuatu in which the respondent was engaged to provide
surveying services to the Government in respect of
proposed mini township to
be established on the islands of Santo, Malekula and Tanna.
The contract was entered into on or about June 1994
between a principal of the respo company and the then MinisMinister of Lands
Mr. Paul Telukluk. In terms of the contract the respondent claimed and
received several advance payments between June
to August 1994 in respect of
the survey works to be carried out.
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It is common grohat in respect of the works for
Santo and Malekula the respondent company has been fuen fully paid. In respect
of
the works on Tanna however, owing to a change of location mid-survey in June
1995 there was an increase in the original
fixed quotation of VT 8 million
to a sum of VT11,737,500 of which a sum of VT 8 million has been paid
leaving an unpaid
balance of VT3,737,500.
By letter dated 19th June 1995 the respondent company
recorded these changes and the nature and amounts required to be paid
in
respect of the varied contract. By letter dated 19th August 1995 the
respondent company acknowledged receipt of a
sum in excess of VT 2 million
leaving a balance of VT 3,737,500 for the Tanna mini township survey of the
Lenakel/Isangel
area.
The survey works were completed in or about August 1996
and demand for the balance fee was made without success. Eventually
the
respondent’s solicitors by letter date 10 February 1999 demanded payment of
the balance fee outstanding for the survey
work done on Tanna. An invoice
was attached.
By letter dated 16th April 1999 the then Minist
Lands denied ‘responsibility for actions which led tled to this debt’ and
questioned the correctness of the respondent’s invoice which he suggested
‘was fabricated’ and, in any event, ‘the survey
plans are yet to be lodged
with the Department of Land Survey.’
On 20th March, 2001 the respondent company issued a
Specially Endorsed Writ of Summons claiming judgment for the balance fees
owing together with interests and costs. The Attorney-General entered an
appearance to the action after being threatened
with an application for
default judgment. It was not however until after being ordered by the Court
that a Statement
of Defence was eventually filed by the Attorney-General on
or about the 7th September 2001.
In its Statement of Defence the Attorney-General denies
the existence of a valid and enforceable contract and assert that all
payments made to the respondent company ‘were issued as result of a mistake’
………………… as no contract existed with the
respondent company the then Minister
of Lands did not have the necessary legal authority to enter into a binding
agreement.
The Statement of Defence further denied that the relevant
surveys were completed as claimed and this despite advance payments
being
made for them. Other than a prayer seeking the dismissal of the action no
other relief was sought.
At a dires hearing on 14th September 2001 the
Attorney-General was ordered to file and serve arve a proposed counterclaim by
5th October 2001. On 9th October 2001 a Counterclaim was filed and a Defence
to counterclaim was filed on 25th November
2001 by the respondent company.
In its extensive counterclaim the Attorney General
expanded on the matters urged in the Statement of Defence and sought a
declaration that the contracts entered into with the respondent company were
‘void ab initio and unenforceable’ and an
order for the repayment of all
monies paid ‘under the mistaken belief that there were contracts in
existence’. Alternatively,
repayment was sought on the basis of a breach of
contract in respect of the work for Malekula and Tanna or in the further
alternative that payments were made under the mistaken belief that would
have been performed by the respondent company
when no work had been done.
Finally, similar orders were sought in respect of the Santo subdivision.
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In its defence to the counterclaim the respondent company
denied the various allegations in the counter-claim and pleaded in
bar the
provisions of Section 3 of the Limitation Act 4 of 1991.
On 4th December 1991 discovery was ordered by turt
and a further conference hearing was fixed for 5tor 5th February 2002. Discovery
was accordingly completed by the Attorney-General and on 5th February 2002 a
further conference was ordered for 26th
February 2002 with a view:
Limitation Act and
exceptions thereto.’
The appeal book contains no record of what transpired on
26th February 2002 or wubmissions (if any) were mare made before
the Judge, except for an Order that was made by the Judge, the
principal
effect of which read:
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“The counterclaim is dismissed as having been filed
outside the period prescribed by the Limitation Act No.4 of 1991 and upon
finding that Section 14(c) thereof as relied upon by counsel for the
defendant does not apply.”
Consequential orders were also made and a trial
date fixed for 30th and 31st May. Costs were reserved.
The Attorney-General now as against the above order
by Notice dated 27th March 2002 and advances several groundrounds of appeal
of
which it is only necessary to set out the following:
“1. & p;&nssp; Tsp; Tha Pria Primary Judge erred in Lawn Law in
concluding, without proper evidence being adduced, that
the time starts to
run from tte ofng thtract being sometime on or about 1994 o994 or
r
19 1995; and
2. p;&nbbsp;&&bsp; bsp; Finding that the expoession in S in Section 3(1) of
the Limitation Act No.4 of 1991. “Six years fromdate ich the cause
of action occurred” to be interpreted as from the date of thef the cont contract
was
made by the parties and not the date in which the breach of the contract
occurs.”
During the course of the hearing of the appeal some major
chanccurred. Counsel for the Athe Attorney-General advised that the
allegations contained in paragraph 9, 14 and 17 of the counterclaim were not
to be pursued. It also transpires that some
of the dates contained in the
particulars were in error and some matters arose during 1995 not 1994.
The provisions of Section 24 of the Limitation Act No.4
of 1991 mean that althoucounterclaim is to be pleadpleaded as a separate
cause of action, it is deemed to have been
commenced on the date that the
initiating proceeding was commenced. The relevant date is March 1995.
It is therefore accepted by the respondent that any cause of action which arose after March 1995 was not barred by d by the provisions
of
the Limitation Act.
It was also accepted that were factual matters
which in terms of Section 14 need to be properly and definitiveitively before
the
Court so it can be determined if the relief provisions for mistake could be
applicable.
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It was consequently agreed between counsel that the appeal should be allowed and the matter returned to the prhe primary Judge. There
are heavy obligations on the appellant to get its papers in proper order and
to be clear as to what its case is. That
is a matter for the Supreme Court
to deal with.
Costs of this appeal will be costs in the cause and
reserved.
DATED at PORT-VILA, this 26th DAY of APRIL, 2002
<
BY THE COURT
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J.B . ROBE J
J. von DOUSSA J
D. FATIAKI J<
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