Consolidated Commodities (Pacific) Ltd v Noel [2005] VUCA 14; Civil Appeal Case 08 of 2005 (18 November 2005)

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

Civil Appeal Case No. 08 of 2005

BETWEEN:

CONSOLIDATED COMMODITIES (PACIFIC) LIMITED
First Appellant

AND:

LEAH TOVO
Second Appellant

AND:

CHARLES SMITH
Third Appellant

AND:

EVANGELINE DORO
Fourth Appellant

AND:

JEAN NOEL
First Respondent

AND:

GEORGE NOEL
Second Respondent

Coram: The Hon. Chief Justice Vincent Lunabek
The Hon. Justice Bruce Robertson
The Hon. Justice Daniel Fatiaki
The Hon. Justice Patrick Treston
The Hon. Justice Hamlison Bulu

Counsels: Messrs. Wade Roper and Collin Leo for the Appellants
Mr. Daniel Yawah for the Defendants

Date of Hearing: 7th November 2005
Date of Judgment: 18th November 2005

JUDGMENT

This is an appeal against the Reserved Decision of the Supreme Court delivered on 11th February 2005 at Luganville, Santo, dismissing the Appellants’ application that the First Respondent, Jean Noel be dealt with and punished for contempt of Court Orders, and also dismissing the Application by the Appellants that the counter-claim of the First and Second Respondents be struck out.

The Appellants say that the trial judge erred in law and in fact:-

1. in not finding that the First Respondent did breach the Court Orders of 4th March 2004;
   
2. in not finding the First Respondent in contempt;
   

100. in holding that the Appellants’ application to strike out the Respondents’ counter-claim was a premature application;
     

4. in failing to dismiss the counter-claim and to enter Judgment on the claim.
   

At the appeal hearing, the Appellants abandoned the contempt issue. That leaves only one issue concerning the counter-claim.

The main argument for the Appellants on this issue is that there was no evidence at all before the Supreme Court concerning the counter-claim and the relief being sought. Secondary, to that is the submission, that the counter-claim is against a person who is not a party to this matter.

Evidence by the First and Second Respondents, and their witnesses reveals no evidence that would support the counter-claim and the relief being sought.

Counsel for the Respondents conceded that the counter-claim was against the wrong party and they must withdraw the counter-claim and start afresh.

The appeal therefore is dismissed. Respondents to meet the costs of this appeal on the standard basis, to be determined if not agreed.

DATED at Port Vila, this 18th day of November 2005.

Hon. Vincent Lunabek, CJ
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu