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Court of Appeal of Vanuatu |
IN THE COURT OF APPEAL | CIVIL APPEAL |
| REPUBLIC OF VANUATU Appellant |
AND: | BEN DICK DALI First Respondent |
AND: | JOHN VIRA MAVUTI Second Respondent |
Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Oliver A. Saksak
Hon. Justice John Mansfield
Hon. Justice Dudley Aru
Counsel: Adeline Bani for Appellant
Mark Hurley for First Respondent
Date of Hearing: 10th July 2020
Date of Judgment: 17th July 2020
________________________________________________________________
JUDGMENT
________________________________________________________________
“9. It is undisputed that on 6 March 2015 the Sheriff commenced the tender process for the property and that on 22 April 2015 Mr Dali emailed the Sheriff his offer of VT2,000,000.
10.Mr Dali’s evidence, confirmed in cross-examination, was that in April 2015 Mr Mavuti ached him at the NBVe NBV and stated to the effect that given that Mr Dali was the highest bidder, he should give the Sheriff theoffered to be held in the Chief Registrar’s Trust Account pending the outcome of the the tender.
11. During that same discussion Mr Mavuti advised Mr Dali to the effect that:
12. It is undisputed that on 24 April 2015, Mr Dali paid cash of VT2,000,000 to Mr Mafor purchase of the propeproperty. I accept Mr Dali’s evidence that based on Mr MavutiRrepresentations tons to him set out above, Mr Dali handed tm of VT2,000,000 in cash to Mr Mavuti on 24 April 2015 in t in the NBV’s interview room. Mr Dali had in his evidence a copy of cknowledgement slip signed gned by Mr Mavuti upon receipt of the money. Mr Dali also evidenced a copy of his statement of account held with the NBV showing his withdrawal of the sum of VT2,000,000 on 24 April 2015.
13. Mr Dali was challenged in cross-examination that he was an experienced manager in enforcement processes for the NBV and yet he made this payment without any written confirmation that he was the successful tenderer? Mr Dali confirmed repeatedly in cross-examination that even without any written confirmation that he was the successful tenderer, he believed Mr Mavuti because he trusted him.
14. His evidence was that he as Manager Recovery in the employ of the NBV had worked with Mr Mavuti as Deputy Sheriff to ensure that a number of enforcement warrants issued on the NBV’s behalf were executed in a timely manner. Over that time, Mr Dali had come to know both the Sheriff and Mr Mavuti, and trusted Mr Mavuti. He did not expect that Mr Mavuti would take his money as he did.
15. Ms Toa also challenged Mr Dali about the lack of a receipt. Mr Dali’s evidence was that he had asked Mr Mavuti about the money he had paid and was told by Mr Mavuti that he had given the money to Albano Lolten, the Court’s accountant. Mr Dali askeMavuti a couple ofle of times for a receipt but was never given a receipt. He trusted Mrvuti that he had given Mr Dali’s money to Mr Lolten &ten – he had no reason to believe otherwise.
16. When Mr Dali learnt that Mr Mavuti’s employment was suspended, he told him that he was no longer interested in the property. Mr Mavuti informed Mr Dali that he was denied access to the court premises but he promised to have the money released back to Mr Dali when he was reinstated. However, he was never reinstated and the State terminated Mr Mavuti’s employment.
17. Mr Dali’s answers in cross-examination were consistent with the account in his sworn statement. He was unwavering in his answers even when repeatedly questioned by Ms Toa on the soint. In my viey view, Mr Dali was a witness of truth and I accept his evidence.”
“25.There was a factual dispute as to what Mr Mavuti’s authorised duties were. Mr Dali alleges that he handed the sum of VT2,000,000 for the purchase of the property to Mr Mavuti in his capacity as Deputy Sheriff. The State alleges that collecting money for Sheriff sales was not part of Mr Mavuti’s job description and authorised duties.
26. It is undisputed that Mr Mavuti’s involvement in the collection of the proceeds of sales of 2 vehicles pursuant to Orders in Supreme Court 2008/26 resulted in him depositing on 6 March 2015 those proceeds into his personal account. The then Chief Registrar’s letter dated 1 Jun5 to the Chief Justice aice also mentions Mr Mavuti’s routine collection of monies. In my view, the Chief Registrar’tion of the routine collection of monies was about Mr Mavuti doing so in his capacity as Deas Deputy Sheriff.
27. Mr Mavuti’s job description was issued to him on 9 August. The wording of Mr&# Mr Mavuti&;s key tasks of exec executing Enforcement Warrants and assisting with administration is wide enough to include Mr Mavuti collecting monies from Sheriff salei>
28. >28. For those reasons, I find that Mr Mavr Mavuti’s collection of monies for Sheriff sales was part of his job and authorised duties, and that he collected the Claimant’s money on 24 April 2015 for the purchase of the property in his capacity as Deputy Sheriff.”
DATED at Port Vila this 17th day of July 2020
BY THE COURT
.....................................
Vincent LUNABEK
Chief Justice
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URL: http://www.paclii.org/vu/cases/VUCA/2020/42.html