Park v Hong Shell Products [2003] VUCA 7; Civil Appeal Case 26 of 2002 (9 May 2003)

IN THE COURT OF APPEAL
OF THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Civil Appeal Case No. 26 of 2002

IN THE MATTER OF An appeal by HUN JIN PARK
from Civil Case No. 54 of 2001 in the Supreme Court of Vanuatu being:

BETWEEN:

HUN JIN PARK
Appellants

AND:

HONG SHELL PRODUCTS
Respondents

Coram: Justice Vincent Lunabek, Chief Justice
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak

Counsels: Mr. George F. Boar for the Appellant
Mr. Robert Sugden for the Respondent

Date of Hearing: 6th May 2003
Date of Judgment: 9th May 2003

JUDGMENT

On 7^th October, 2002 the Respondents as plaintiff obtained judgment in the sum of US$13,240 together with interest thereon at 10 per cent from 20^th April, 2001. Costs of the trial were awarded to the respondent. The appellant, the defendant in the Court below, appeals against that judgment. On 25^th March 2003 the appellant was ordered to pay the respondent’s costs of a further hearing concerning an alleged contempt by police officers who had intervened in the dispute between the parties by seeking to persuade the respondent to forego the benefit of the judgment. Those costs were taxed at VT90,000. That Order is also appealed against.

Basically three grounds of appeal were advanced by Mr. Boar on behalf of the appellant. First, that the trial judge had erred in refusing to grant sufficient time to the appellant to call an absent witness, one Willie Naling who was on Erromango Island. The appellant said his evidence would have shown that the shells sold to the respondent by one Harry Tavo were Willie Naling’s shells, and not Harry Tavo’s. This was not the ground of defence pleaded by the appellant. Secondly, that the trial judge had erred in refusing to allow Inspector John Pakoa Tarimas to testify to corroborate Willie Naling’s evidence as to ownership and to confirm that the matter had been resolved between the appellant, Willie Naling and the respondent. Thirdly in relation to costs, that the trial judge had erred by awarding the costs of the contempt proceedings against the appellant rather than against the Commissioner of Police.

The facts of the case were that in January 2001 an employee of the respondent went to Erromango Island and purchased 110 bags of trochus shells from Harry Tavo and his sons. The employee was Artis who took and paid for the shells in cash. There was a shortage of bags and therefore Artis placed some of the shells in the appellant’s bags which were yellow in colour. The respondent’s bags were white in colour. The bags of shells were shipped to Port Vila and unloaded at the wharf. It was at the wharf that the appellant’s employees took 30 bags of shells belonging to the respondent away. They neither returned nor paid for them. The respondent sued the appellant for the value of the 30 bags of trochus shells at US$11,420.00.

Dealing now with the issues first, whether the trial judge should have allowed Willie Naling to be heard in relation to the issue of ownership of the shells. The onus was on the appellant as plaintiff to show that his evidence would be relevant. Mr. Boar conceded that he did not have any affidavit or statement by Willie Naling at the time. No reason was provided as to why such an affidavit or statement could not have been obtained during the initial stages of the case. Even if there was such evidence, it is apparent from the judgment that the trial judge was of the view that Willie Naling’s evidence would not be relevant to the defence which had been pleaded. In our opinion it was open to the judge in these circumstance to refuse a further adjournment of the case. The appellant’s submissions on this ground fails.

Secondly, whether the trial judge should have allowed a police officer to testify to corroborate the issue of ownership of the shells by Willie Naling. Again on this issue his evidence was not relevant to the defence pleaded. Further, on the issue of the alleged agreement between the parties to settle the dispute the burden was on the appellant to shew that he had sought leave or made attempts to call the police officer. Mr. Boar was not present at the initial trial and he could not assist the Court on that point. Mr. Sugden was at the initial trial and in response clarified first that the police officer was present in Court for part of the trial, but was not present at Court when the application was made for an adjournment to call Willie Naling. Secondly, he could not recollect that the previous counsel for the appellant had asked the trial judge to call the police officer as a witness. We are therefore not satisfied that the trial judge refused a request by the appellant to call the police officer to testify. This ground of appeal must fail.

Finally in relation to costs, whether the order should have been made against the Police Commissioner rather than against the appellant. Mr. Boar’s argument was that the police became a party to the proceedings when restraining Orders were made against John Tarimas and Delphine Vuti on 13^th March 2003. It is clear on the face of the Order of 13^th March 2003 that the police were not a party to the proceedings. From the record it is clear that the two officers were acting as agents on behalf of the appellant. We are satisfied that the trial judge decided correctly that the appellant pay the respondent’s costs taxed at VT90,000.

We therefore do not consider there is any reason why the judgment of the trial judge dated 7^th October, 2002 should be interfered with. Accordingly we dismiss this appeal with costs to the respondent.

Dated at Port Vila, this 9^th day of May 2003.

BY ORDER OF THE COURT

Hon. Vincent Lunabek, CJ
Hon. J. Bruce Robertson J.
Hon. John von Doussa J.
Hon. Daniel Fatiaki J.
Hon. Oliver A. Saksak J.-