Berry v Saolo [2001] VUSC 36; Civil Case 071 of 2000 (12 April 2001)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

BETWEEN:

p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> NOEL BERRY

Plaintiff

AND:

ALICK SOALO

Defendant

Mr. Ronalsal for the Plaintiff

Defendant – no appearance

ASSESSMENT JUDGMENT

The plaintiff file a Writ of ons endorsed with a Statemeatement of Claim and his claim basically for breached of contract and claims for improvement and development of land to fulfil the contract.

The nature of the contract was that on about May 1987 the defendant d to employ the plaintiff aiff as labourer to maintain, cultivate and develop the defendant land at Erangorango Village Efate. The defendant agreed to remunerate the plaintiff by allowing the plaintiff to develop and cultivate part of the land for the plaintiff benefit while the plaintiff provide services to the defendant. Further agreed that the defendant to transfer part of the land to the plaintiff at a later time during the plaintiff’s course of employment with defendant.

This agreement was amended in about 1988 where the defendant further agreed that the plaintiff will permanently settle on the land and if the defendant evicted the plaintiff then the defendant will have to compensate the plaintiff properties and costs of labour.

With these arrangements and agreement the plaintiff cleared the forest and ed food crops, fruit trees and other commercial trees.

In 1989 the plaintiff built a residence in the land anide there. Also upon instruction from the defendant tant the plaintiff erected a fence for cows about 3 hectares.

In 199h the assistant of the Forestry Department planted 1,000 white wood seedling (a commecommercial tree) and continue to maintain the plantation for the last 6 years.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Then about 1994 the plaintiff paid to the defendant 1 bullock, VT5,000, s, Kava, food crops as payment for part of the land as agreed by the defendant to be transferred to him. The defendant received such payment.

In 1996 the defendant did honour that arrangement by transferring that part of the land m. In 1998 the plaintlaintiff built a house for the defendant on that land upon the defendant’s instruction, a kitchen.

Then in October 1999 the defendant advised the plaintiff to leave the said land not to return. He did not compensate the plaintiff upon their agreement and evicted the plaintiff. The plaintiff then proceeded with his claim against the defendant.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Claim

The plaintiff upon the defendant’s action and agreement he claim for the defendant to pay him for his properties on the land. And to compensate him for his labour costs on improving the land and properties planted there in.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Court Order

On the 7^th August 2000 the Court entered an interlocutory judgment in dt on the unliquidateddated demand.

On the 24^th November 2000 the case was adjourned to the 30^thth November 2000. On the 30^th November 2000 the defendant appeared and as the defendant was not ready it was adjourned to the 5^th December 2000. On the 5^th December 2000 Kiel (Public Solicitor) appeared for the defendant on this assessment proceeding and further adjourned to the 15^th February 2001 at 8.00 am with direction for filing of Affidavit and reply in preparation for assessment. On the 15^th February 2001 plaintiff and defendant appear and order No. 3 of order of 5^th December 2000 was not complied with so it was adjourned to the 19^th March 2001 for the defendant to comply. On the 19^th March 2001 the defendant fail to appear.

The Court had no option but to proceed ex parte on asses as such warning was made on 24^th Novemberember 2000 to the defendant.

Nevertheless, in assessment prong the Court still consider the defendant affidavit in cont contrast to Noel Berry’s affidavit and Peter Napuat's affidavit. Even though part of the defendant's statement refer to the issue of contract which the Court had made default judgment upon, only paragraph 11 and 12 were relevant matter for assessment purpose as the other points were more relevant to the substance of the matter where the Court has made order, which the defendant can exercise further right on which is not the concern of this Court now.

Assessment

Peter Napuat, a Senior Agriculture Program Officer compn affidavit that he himself with the plaintiff attendttended the farm where the plaintiff cultivated and developed and examine and inspected various garden crops and plants that the plaintiff planted in the said land. He was basing his assessment on list of garden crops and other plants as supplied by the plaintiff. He confirmed that the list as provided by the plaintiff were true on his inspection of the land and different crops planted on the land. He determine the value of the property by using the Crop Compensation Policy used by the Agriculture Department as standard value for crops through out Vanuatu in helping farmers in assessing values of their crops.

He inspected the crops and made thatation in accordance with Agriculture Crop Compensation Poli Policy. The total amount as in exhibit N. B. 1 was VT4,111,136; VT51,930,800; VT10,766,080 with a total of VT66,808,016.

If this was the standard approach on that policy then his Court have room to assess. I find that there is n is nothing justifying me to increase nor decrease the value of each item there in and as such value apply across the line, in Vanuatu which the Court has no option to those value unless there is evidence in the contrary which there are none. I therefore accept such valuation on costs of the crops as supplied by the plaintiff as representing the correct amount per crop.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> With these to say I will find for the plai the amount of VT66,808,016 as representing the correct t amount and order the defendant to pay this amount to the plaintiff within four months.

Dated at Port Vila, this 12^th daApril, 2001.

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R. MARUM MBE

p class="MsoNormal" align="ign="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGE.