Dick v Melanesian Cooperative Savings and Loan Society Ltd [2005] VUSC 5; Civil Case 134 of 2004 (7 February 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 134 of 2004

BETWEEN:

LEIWIA DICK
Appellant

AND:

MELANESIAN COOPERATIVE SAVINGS & LOAN SOCIETY LIMITED
Respondent

Mr. Robert Sugden for the Appellant
Mrs. Mary Grace Nari for the Respondent

DECISION

INTRODUCTION

1. On 21^st November 2003, the Claimant (Melanesian Cooperative Savings & Loan Society) filed its claim in the Magistrates Court that the Appellant owed it the sum of VT182,087 in loan arrears. Paragraph 6 of the pleadings stated that the claim is “in respect of loan arrears in the sum of VT182,087 owing to the Claimant for a loan facility given to the Defendant at the Defendant’s request on 26^th October 1999.”
   
2. The Appellant (then Defendant) denied the claim. She denied that she owed VT182,087 or any money at all to the Claimant in respect of anything that occurred on 26^th October 1999.
   
3. Hearing took place on 9^th July 2004. Prior to the hearing the Magistrates Court had ruled that evidence would be by way of sworn statements and had directed the parties to file sworn statements accordingly.
   
4. Only one sworn statement was filed and served within time directed by the Court. That was the sworn statement of Ezra Bangtor in support of the claim.
   
5. The sworn statement of Ezra Bangtor established the following:-
   
   • (a) The Melanesian Cooperative Savings & Loan Society had a current business licence No. 04740 issued on 21^st July 2003 to operate its business from January – December 2003.
     
   • (b) That an advance in the sum of VT250,000 was made to Leiwia Dick on 26^th October 1999 on certain conditions.
     
6. Another documentary evidence accepted by the Court, appearing at page 19 of the Appeal Book, shows that the Melanesian Cooperative Savings & Loan Society Limited is a registered cooperative society.
   
7. The Magistrates Court on 9^th July 2004 entered judgment in favour of the Claimant. The Court ordered the Appellant to pay the “outstanding amount of VT182,087 being for arrears of loan obtained on 26^th October 1999 plus interest at 16 %, calculated at VT80 per day, commencing from 29^th October 2003, until completion.”
   
8. It is that decision that the appellant appealed.
   

ISSUES

9. The following issues arise for determination by this Court:-
   
   • (a) Whether there was evidence to show that the appellant was in arrears in her loan repayment and that the amount in arrears is VT182,087;
     
   • (b) Whether paragraph 6 of the claim is evidence;
     
   • (c) Whether Mr. Sugden should have cross-examined the Claimant’s witness;
     
   • (d) Whether Mr. Sugden should have called evidence from the defendant to assist the Claimant’s case;
     
   • (e) Whether interest rates should be at 16% per annum.
     

FIRST ISSUE—Was there evidence to show that the appellant was in arrears in her loan repayments and the amount in arrears is vt182,087.

Appellant’s case

10. Counsel for the Appellant submitted that there was no evidence at all before the Magistrates Court to show –
    
    • That the Appellant was in arrears, and the amount in arrears is VT182,087 or any amount at all;
    • How the arrears arise, if any;
    • The terms of the loan agreement especially about repayment.
      
11. In a trial evidence is either adduced orally or by sworn statements. Once that is done, that is the only evidence on which the Judge takes into account to determine the truth of the claim.
    
12. Any part of the claim that is not accepted by the Defendant are facts in issue. In any proceedings the Claimant –
    
    • Sets out what he claims happens; and
    • that he will adduce evidence to prove his claims.
      
13. In this matter the claim that the Appellant was behind in her loan repayments in the sum of VT182,087 was denied. No evidence was introduced by the Respondent to show that that amount was in arrears and how it arose.
    
14. Paragraph 6 of the claim states that the “claim is in respect of loan arrears in the sum of VT182,087 ...” This is the only reference to VT182,087 being claimed for loan arrears. The Appellant submits that this is part of the pleadings and is not evidence. Rule 4.2 (1) (b) says that –
    

“Each statement of the case must –

(b) set out all the relevant facts on which the party relies, but not the evidence to prove them.”

It is clear that what is contained in the statement of the case is not evidence. It is not proof of what is being claimed.

Respondent’s case

15. The claim before the Magistrates Court was for loan arrears of VT182,087. The Respondent’s witness sworn statement of 8^th October 2003 showed that the Appellant had borrowed VT250,000 from the Respondent.
    
16. The Court had that one brief sworn statement and the claim to try the case.
    
17. The Respondent submits that the Court was correct in reading the amount borrowed as being VT250,000 and the amount claimed in the sum of VT182,087 as the outstanding amount owed to the Respondent.
    
18. The Appellant did not call any evidence whatsoever. The Magistrate could only try the facts placed before him. The Respondent submits that counsel for the Appellant tried to use the “technicalities” in the pleadings to avoid his client's liability.
    
19. The Appellant’s defence generally denied everything without alleging what facts she alleges happened. The Respondent submitted that the Appellant did not observe rule 4.5 (4) of the Civil Procedure Rules. The Appellant’s position did not assist the Magistrate and therefore the Magistrate relied solely on the brief sworn statement and the pleadings. There was no evidence given by the appellant and therefore the Magistrate disposed of the matter on the pleadings and the brief statement of the Respondent. That the Respondent submits, would have been the position of someone who had accepted liability and had judgment entered against him or her at the first hearing of the matter.
    

THE LAW

20. Civil Procedure Rules of 2003. Rule 4.2, 4.5
    

“Content of statements of the case

4.2 (1) Each statement of the case must:-

• (a) be as brief as the nature of the case permits; and
  
• (b) set out all the relevant facts on which the party relied, but not the evidence to prove them; and
  
• (c) identify any statute or principle of law on which the party relies, but not contain the legal arguments about it; and
  
• (d) if the party is relying on custom law, state the custom law.
  

(2) If the statement of the case is set out in a claim or a counterclaim, it must also set out the remedies or orders sought.

Defence

4.5 (1) If the defendant intends to contest the claim, the defendant must file and serve a defence on the claimant within the period required by Rule 4.13.

(2) The defence must contain a statement of the case.

(3) A defendant must not deny the claimant’s claim generally, but must deal with each fact in the claim.

(4) If the defendant does not agree with a fact that the claimant has stated in the claim, the defendant must file and serve a defence that:-

(a) denies the fact; and

(b) states what the defendant alleges happened.

(5) If the defendant does not deny a particular fact, the defendant is taken to agree with it.”

DISCUSSIONS

FINDINGS

21. The claim filed on 29^th October, 2003 particularly paragraph 6 contains the statement that that VT122,087 in loan arrears is owing to the claimant under a loan made on 26 October 1999 by the Claimant is basically that it is what the Claimant believes the situation. No evidence at all was before the Court to prove the fact as alleged.
    
22. In the Respondent’s submissions counsel for the Respondent admits that the only evidence admitted in the Magistrates Court are those as found at p. 16 to 20 of the Appeal Book.
    
23. There is no evidence at p. 16 – 20 of the Appeal Book that shows or prove that VT182,087 or any amount is owed by the Appellant as arrears in loan repayments.
    
24. There is no evidence showing that VT67,913 has been paid.
    
25. Findings on this main issue is sufficient to dispose off the case. I do not intend to make a determination on the remaining issues. The appeal is accordingly allowed.
    

Accordingly, I find that there was no evidence before the Court at first instance to proof that VT167,089 in loan arrears were outstanding and payable to the Respondent.

ORDERS

1. The Appeal is allowed;
   
2. The Judgment given in favour of the Respondent on 9^th July 2004 in the Magistrates Court Civil Case No. 252 is set aside in its entirety;
   

In the circumstances of this case, I do not think it will be proper to have a retrial. The costs will be high and very likely go well over the amount being claimed;

3. Magistrates Court Civil Case No. 252 of 2003 is dismissed with costs to the Defendant to be assessed;
   
4. Respondent to pay Appellant’s costs of and incidental to this appeal.
   

DATED at Port Vila, this 7^th day of February 2005.

H. BULU
Judge.