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

CIVIL APPEAL CASE No. 12 of 2005

BETWEEN:

DAVID LIVO and Others
Appellants

AND:

JOHNNY WUAN
Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Patrick Treston
Justice Hamlison Bulu

Counsel: Mr. Saling Stephens for the Appellants
Mr. George Boar for the Respondent

Date of hearing: 28th April 2005
Date of decision: 3rd May 2005

JUDGMENT

This is an appeal by leave against the Interlocutory Order dated 16 March 2005 and the Judgment of the Supreme Court in Luganville dated 27 August 2004. 

This was a claim for damages for personal injuries the Respondent sustained on different parts of his body after he was seriously assaulted by the Appellants on 15 May 1997 at Vunapuma village on Maeva Island.

The Respondent filed a claim seeking Vatu 5,268,002 damages against the Appellants in October 2000.

The Appellants were not legally represented. They failed to file their appearance or any defence.

The Respondent obtained a default judgment on liability against the Appellants on the 1st of March 2002. The learned Judge issued directions to assess the quantum of damages. The Appellants accepted liability but they wanted to be heard on the quantum of damages.

The damages were eventually assessed and the learned Judge delivered his Judgment on quantum on 27 August 2004 awarding a total amount of VT2,208,250 in favour of the Respondent against the Appellants.

On 16 February 2005, the Respondent obtained an Enforcement Order against the Appellants.

On 7 March 2005, the Appellants applied to set aside the Judgment of the Supreme Court of 27 August 2004 which was on quantum.

On 16 March 2005, the learned Judge dismissed the Appellants’ application to set aside the Judgment of 27 August 2004. He granted leave for the Appellants to file their appeal out of time and stayed the Enforcement of the Judgment of 27 August 2004 pending the determination of the Appellants’ appeal.

On 5th April 2005, the Appellants filed their Notice of Appeal which was then amended on 21st April 2005.

The appeal (as amended) proceeded on three (3) grounds:

First, the Appellants contended that His Lordship wrongly exercised his discretion to dismiss the Appellants’ application of 7 March 2005 seeking to set aside the Judgment of the Supreme Court dated 27 August 2004.

Second, the Appellants contended, in the alternative, that His Lordship erred in finding that a payment of Vatu 300,000 by the Appellants to the Respondent was not in full and final settlement of compensation as agreed between the Appellants and the Respondent.

Finally, the Appellants argued that the Judge had erred in awarding a total of Vatu 2,208,250 in favour of the Respondent as there was no sufficient evidential basis for such an order.

We deal with each ground in turn.

The first ground of the Appeal must fail. The Judge heard evidence, made findings of facts and credibility and issued a Judgment on the quantum of damages on 27 August 2004. It was a final Judgment. The application to set aside could not succeed as a Judge cannot rewrite his Judgment given after a hearing at which some of the Appellants were present in person and one of whom gave evidence. The decision of the Judge dismissing the Appellants’ application to set aside the Judgment of 27 August 2004 was proper and unchallengeable.

The second ground of the appeal is the essential and critical one in this appeal because if the Appellants succeed on it, the appeal is brought to an end and there is no need to consider the third ground.

In his Judgment of 27 August 2004, the Learned Judge found and accepted the evidence of the Respondent that the sum of Vatu 300,000 was agreed to be paid by the Appellants to the Respondent to assist him meet school fees for his children. He found it had nothing to do with the compensation. His Honour found that that conclusion was confirmed by the Appellants’ only witness, Joseph Livo.

The Appellants contended that they had reached an agreement with the Respondent for the payment of Vatu 300,000 as a final and full settlement of compensation damages, and that they had made full payment in compliance with the terms agreed.

We have perused the Court records and the notes of evidence. It is clear that on 11 July 2001, the Acting Police Commander in Luganville, Robert Boe, sent a report as to the agreement of the parties, to the Judge in Luganville. The report described the circumstances leading up to the agreement in the following way:- 

The Respondent made a criminal complaint to the police against the Defendants as a result of serious injuries he sustained on his body. The Defendants were prosecuted in April 2000. The Respondent at the same time filed a civil claim for damages against the Defendants but the hearing of the matter got delayed. The Respondent needed money to pay the school fees for his children. The police then held a round table meeting with all the parties in April 2000 and an agreement was reached that the Appellants compensate the Respondent for his injuries for an amount of Vatu 300,000.

The Respondent raised the matter again with the police in Luganville, Santo, in July 2001 when the Appellants fell behind with their payment.

The report revealed that there was a verbal agreement. The Appellants had not fully complied with the agreement as they were slow with their payments. The report further said that there was no condition attached to the agreement. It was sent to the Judge for the Court to deal with it.

On 4 June 2003, the learned Judge made Orders to enforce the non-performance of the agreement. The Orders provided for periodic payments until the whole amount of VT300,000 was paid and for the Appellants to furnish the Court Registry with proof of their payments.

Paragraph (3) and (4) of the Order provided:

(3)	The Assessment of Damages by the Plaintiff be hereby adjourned pending the Defendants compliance with the above Orders;

(4)	The Plaintiff be at liberty to apply to the Court in the event that the Defendants fail to abide these Orders.

Leaving aside the Orders made on 4 June 2003, we consider the evidence before the learned Judge clearly established that a final settlement of the Respondents’ personal injury claim had been reached at the round table meeting with the parties in April 2000.

As we construe the Orders of 4 June 2003, they recognize that the parties intended to carry out the terms of a final settlement. Orders (3) and (4) which adjourned the assessment of damages were, in effect, a default provision which would allow the parties to come back to Court if the Appellants failed to complete the terms of settlement.

As events happened, the Appellants kept up their payments and completed the agreement. In these circumstances, the default provision did not come into effect, and there should not have been an assessment of damages.

On the whole evidence, it transpires that school fees were discussed. The Respondent said he needed money to meet the school fees. The Appellants said they found it difficult with the payment of school fees also and that life was very hard. So the parties agreed that the Appellants would compensate the Respondent with a total of VT300,000 and the Respondent carried out the terms of the agreement.

We are satisfied that the learned Judge reach a wrong conclusion of fact when he found that the Vatu 300,000 was not the agreed figure in full and final settlement.

We therefore allow the appeal on the second ground.

There is no need for us to consider ground three of the appeal.

We therefore make the following Orders:-

1.	The first ground of the appeal on the interlocutory point is dismissed.

2.	The appeal is allowed on the second ground. The award of the total sum of VT2,208,250 is quashed.

3.	The amount of VT300,000 paid and received by the Respondent pursuant to the Agreement of April 2000 constituted a full and final settlement of the compensatory damages of the Respondent.

4.	There will be no Orders as to costs in the Supreme Court. The Respondent will pay the Appellants’ costs in the appeal to be agreed or determined.

DATED at PORT-VILA this 3rd day of May 2005

BY THE COURT

Vincent LUNABEK CJ
J. BRUCE ROBERTSON J
JOHN von DOUSSA J
PATRICK I. TRESTON J
HAMLISON BULU J