Marchand v BHP Building Products (Vanuatu) Ltd [2000] VUSC 49; Civil Case 012 of 2000 (28 August 2000)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.12 of 2000

BETWEEN:

BRUNOHAND
Plaintiff

AND:

BHP BUILDING PRODUC (Vanuatu) LTD
and PORT VILA HARDWARE
Defendants

Mr. Julian Ala counsel for the plaintiff

Mr. Silas Charles Hakwa counsel for the defendants

JUDGMENT<

There were two applications for the court to decide, one by Bruno Mar; that is for adding Marie arie Claire as a second Plaintiff in this matter and if granted then amendment also to be made to the statement of claim. Application made under order 17 of the High Court (Civil Procedure) Rules 1964. The second application was by summons by the defendants dated 6^th of July 2000 in applying to struck out the statement of claim by the plaintiff.

The court will deal first with the summons for the defendants in striking out the statemf claim.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> In this case, by paragraph 2 of the writ of summons by the plaintiff, claims that he is the owner of the bulldozer. And therefore, it is fundamental as to property right that dispute of ownership in this writ of summons should be decided first and other claims thereafter can follow. Further, whether the defendants were the proper parties in the claim of ownership by the plaintiff in the writ of summons. The defendants counsel advances that they do not claim ownership of the bulldozer, and their interested only was over cases 154/96 and 83/96 where they claim that Mr. Francois Marchand in the two cases has not satisfied that judgment by the court. And advances that no cause of action lies against the two defendants. The plaintiff counsel advances also on a letter of sale dated 24^th of October 1995 giving right of ownership of the bulldozer to the plaintiff. And pursuant to the statement of claim in paragraph 2, the plaintiff is claiming ownership of the bulldozer.

Now by order no.1 in the case of Francois Marchand-Vs- ank the court on the 22^nd day of December mber 1999 ordered ownership of the said Caterpillar bulldozer to Francois Marchand. And order No. 1 read; “The Plaintiff is the owner of the Caterpillar Bulldozer”. No appeal was lodge over that order, and by that order Mr. Francois Marchand remains the rightful owner of the bulldozer. In page 2 of that judgment recorded that plaintiff gave evidence himself and call his wife, Mrs. Marie Claire Marchand and his brother Bruno Marchand and the court order ownership of that bulldozer to Mr. Francois Marchand. If Mr. Bruno Marchand and Marie Claire Marchand were also claiming ownership of that bulldozer then they should have applied to be joined as a second and third plaintiff for their right and interest over the ownership of the bulldozer was to be decided in the case 88 of 1999. And order 17 of the High Court (Civil Procedure) Rules will permit them to be joined for the court to decide ownership. And because the court has decided that Francois Marchand was the owner of the bulldozer then any proceeding as to ownership by any claimant must only be brought against Mr. Francois Marchand the legal and recognize owner of the bulldozer pursuant to the order of 22^nd day of December 1999. And if the plaintiff was claiming pursuant to the 24-10-95 agreement then he can only bring his claim against Francois Marchand pursuant to the order of 22^nd December 1999 and no body else.

In view of what I have stated above the question I asked: - are th defendants the proper part parties in claiming the ownership against them over the ownership of the bulldozer? It is very clear that they are not claiming ownership over the bulldozer as their interest was only over the case no. 154/1996 and 83/96 where Mr. Francois Marchand failed to comply with the order to pay money to them pursuant to those orders of the court or he be referred to as a judgment debtor in those cases. If this is so then I find no cause of action lies against them as to ownership over the bulldozer.

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It was advances also by the plaintiff’s counsel that the matter cbeen properly proceeded agad against the Sheriff. On this advancement, I take the view that, the Sheriff will only acting upon the writ of Fieri Facias in the case 154 & 83 of 1996. And the sheriff in recouping properties under any writ of fieri facias does not make him the owner of the property seize, as his duties under the law is to comply with the orders in the writ. And he cannot be the owner. The owner of properties seizes in a writ of fieri facias remains the property of the judgment debtor and to be dealt with under the said writ in satisfying a judgment against a judgment debtor. And in this case Francois Marchand remains the owner of the bulldozer pursuant to the order of 22-12-99 until the property is dispose off under that writ. For all these reasons, I find that the writ of summons by Bruno Marchand discloses no cause of action against the two defendants. And therefore, the statement of claims in the writ of summons dated 8^th February 2000 is now struck out against both defendants with cost to the defendants to be taxed if not agreed.

DATED AT PORT VILA this 28^th day of August 2000.

R. MARUM MBE
JUDGE