Gueho v Leong [2001] VUSC 15; Civil Appeal Case 003 of 2001 (2 March 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)

Civil Appeal Case No.3 of 2001

BETWEEN:

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YANNICK GUEHO

Appellant

AND:

ass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> AHMAN LEONan>

Respondent

Coram: Before Mr Justice Oliver A. Saksak

Ms Cynthia Thomas – Clerk

Mr John Malcolm for the Appellant

Mr Silas C. Hakwa for the Respondent

JUDT

On 20^th December, 2000 the Magistrate’s Court having found the defendant liabdered as follows:-

“(1) &nbssp; Dafends t is ordererdered to hand over the Toyota Hilux 4700 by 3.00 p.m. on 21/12/2000. The vehicle shall be kept in a safe place in Santo (Lugle) ae ign keys to the vehicle be surrenderendered toed to the the Assistant Registrar of the Supreme Court, Luganville.

(2) &nsp; &&nbp;;&nbpp; &nnsp; &nbp; s vehicle shallshall be kept until Vanapex Ltd (Company) issues are settled and all liabilities of the Company settled by the BOD Directors or if there is a dispute bAppoiof threme Court on then the ques question tion of liquidations of the Company.”

The Respondent commenced proceedings in the Magis’s Court by taking out a statement of claim filed as d as Civil Case No.92 of 2000.

I set out below the Plaintiff’s ims as filed–

“STATEMENT OF CLAIM”

1.&t;"> &nnsp;&&nsp;;&nspp;&nssp;&nsp; The Plaints oris originally from Vanuatu and he base in Luganville town Santoan> > 0pt">

2. &nbs;  p;&nssp;  p; &nbp; p; The Dant dant is from France and he is now living on the Island of Santoanvilspan> ass="rmal"e="margin-left: 36.0pt; margin-top: 1; : 1; margimargin-botn-bottom: tom: 1">

3. &nbs; &nbbsp;  p;&nsp; &nbp; &&nbp;;&nbpp; &n sp; Back in k in 1988 the Plaintiff (AHMAN LEONG) and the defendant (Y. GUE ted at ComcalleAPEX ed.

4. &nsp; &&nbp;;&nbpp; &nnsp; &nbp; &nbbp;&nnbp;& Ipan>In 1988, Mr AHMAN LEONG allowed Mr GUEHO to use Mr AHMAN LEONG’s vehicle No.4700 as he was working with Mr AHMAN in developing some Nurseries for Nruit the ces of the companompany’

ass="MsoNoMsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> The said vehicle was made available to the company fo of the company and the pure purpose of the company. At no time did I agree that the said vehicle. At no time did I agree that this said vehicles would be given to Mr Y. Yueho for his personal used.

ass="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 5. & p; &nsp; &nsp; For reason own onl only to Mr GUEHO He himself retained the Registration number 4700 for the vehicle obtained from Maxime Garage and had the vehicle registered under his own namis waally againsgainst bott both my h my personal wishes and the company. As the Chairman of the Board of Director, I did not approved such step taken by Mr Y. Gueho. This vehicle remains the property of the company and Mr Gueho has no right or authorize or whatsoever to have the vehicle transfer to himself. This amount to unlawful conversation and theft.

6. &bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&&nsp; &nbp; Iatepeat this this vehicle belongs to the company and it ns ompanpertymy cay as man of the Boae Board and as majority shareholder,lder, I ha I have a ve a duty duty to prto protect all property and assets for the company.

7. &nbbsp; &nbbsp; &nbp; &nbp; &nb p; /span>My attention tion was drawn to a note dated 100 whdviset it was en by. GUEefendant) himself. A copy of thof this nois note iste is enc enclosedlosed here herewith for easy reference. I wish to say and confirmed again that VANAPEX Limited has no business licence to carry out any business or trade in Vanuatu. Mr GUEHO has his own business called “ISLAND BOTANICAL”. I have nothing to do with Island Botanical. VANAPEX Limited has nothing to do with Island Botanicals. The vehicle registration No.4700 does not belong to either Island Botanical or Mr GUEHO.

PARTICULARS

p class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 1. &nbbsp;& &nsp; &nsp; &nnbp;& &nnbsp; I an>I therefore request that thecle boved from Mr Gueho forthwith and returned to me. (Plaintiff)”

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Issues

1.&nb"> &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; Wps there sufficienicient service?

From the facts, the Notice of Hearing was served on the appellant on 19/12/00 without the statement of claim. On 20^th December 2000, the matter was stood over for 15 minutes for service of writ on the appellant and for him to read it. At 9.30 am the matter was recalled and the court proceeded to hear submissions. The affidavit of service sworn and dated 19^th December 2000 by Anita, clerk of the Court at 2.00 pm. The appellant had about 19 hours after which he came to Court on 20^th December and denied service. I find that hard to accept. He was allowed a further 15 minutes to be served another copy and to read the statements of claim. It appears to me from the records that the appellant was given the opportunity to seek further adjournment and/or the assistance of a solicitor. He chose to proceed. Under such circumstances therefore the Court has the discretion to dispense with the seven days requirement of the rules. In my opinion the appellant was sufficiently and adequately served and I so rule.

2. &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp; p; DidPlaintlaintiff haves standi?

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The vehicle is owned by Vanapex Limited which has two (2) shareholders who are also Directors. The Plaintiff as majority shareholder is the chairman of the Board of Directors. The Defendant is the minority shareholder and a director of the company. He states quite clearly that he has a duty to protect company assets and there can be no immoral or illegal act on his part. In my opinion therefore the Respondent has locus standi and I so rule.

3.&t;"> &nnsp;&&nsp;;&nspp;&nssp;&nsp; Writ of Inion?tion?

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The respondent took out a writ omons against the appellant.lant. He alleges misuse of company property and prays for its removal and return. The writ was served on the appellant on 19^th December 2000. He did not have to proceed ex parte. If he did then he would have been required to follow the procedures laid down in the Deamer v. Unelco Case 122 of 1992. The hearing was inter partes. It appears to me that all that were said from the Bar table by both Parties were submission as opposed to evidence.

ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> The purpose of it all was to assist the Learned Magistrate to decide whether there was a defence. From the records it is clear that the Learned Senior Magistrate came to the conclusion that there was no defence. He therefore found the appellant liable and accordingly made Orders against him. In my opinion, this was not an action for a writ of injunction therefore the Deamer case is not applicable.

4. nbsp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; pan>WhetheerOrders Fina Final?

Reading the Orders carefully it is clear to me that those were not final orders. Order 2 is very clear on this point. I therefore reject the appellant’s submission that these orders were final. The orders were clearly interlocutory orders. Under Order 60 Rule 3(1) the period allowed for appeals against interlocutory orders or decisions is 14 days unless the court enlarges time. The Notice of Appeal here was filed on 18^th January 2001. The orders were issued on 20^th December 2000. It is late by some 16 days.

Orders 60 Rule 3(4) provides for applications for enlargement of time to be supported by affidavits and grounds of appeal showing good cause for leave to be granted. There has been no application for leave to enlarge time by the appellant. Therefore neither this Court nor the Court below has granted leave to the appellant to appeal out of time.

5. &nsp; & &nbbsp; &nbp; &nbp; &nbbp;&nnbsp; Identity of Veof Vehicle

There is no mystery about the vehicle. The vehicle was originally registered as No.4296. As a result of a trade-in with a Maxime Garage, the present vehicle registered No.4,700 was taken out. From the Registration Book the vehicle is registered under the company name Vanapex. The Plaintiff is the majority shareholder of the company.

ass="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 6. &nbsp &nbssp;&nnbp; &nsp; &nbbp;&nnbsp; &nbbsp; Vaan>Value of Vehicle

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There has been no proper valuation of the vehicle. Therefore the Court must rest rely on the original value which is given at VT400,000. That is within the jurisdiction of the Magistrate’s Court.

For these reasons this appeal must fail. I accordingly dismiss the appeal.

I Order that the appellant pays the Respondent’s costs of this appeal and of the court below to be taxed failing agreement.

DATED at Luganville this 2^nd day of March, 2001.

BY TURT

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OLIVER A. SAKSAK Judge