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Ake v Vanuatu Livestock Development Company Ltd [2007] VUSC 47; Civil Case 20 of 2007 (9 May 2007)

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

Civil Case No. 20 of 2007

BETWEEN:

MR. ERICK AKE
Claimant

AND:

VANUATU LIVESTOCK DEVELOPMENT COMPANY LIMITED
Defendant

Coram: Justice C.N. Tuohy

Counsels: No appearance for Claimant
Mr. Malcolm for Defendant

Date of Ruling: 9 May 2007
Date of Decision: 9 May 2007

RULING

1. Mr. Malcolm for the defendant has made an application at the first conference for this claim to be struck out in its entirety as being statute-barred. The history of the proceeding is this:

On 15 February 2007 the claim was filed. A Defence was filed on 6 March 2007. That defence specifically pleaded in paragraph 8 that the claim is statute-barred by reason of the Limitation Act No. 4 of 1991. On 15 March 2007 the Court issued a Notice of Conference for Wednesday 9 May 2007 at 8am. The Court record shows that that notice was placed in the boxes of both counsel (Mr. Yawha & Mr. Malcom) at 9:00am on 16 March 2007.

2. On 20 April 2007 the defendant filed a formal written application for an order the claim be struck out in its entirety as being statue barred together with a sworn statement in support. The claimant has today filed a sworn statement of service which indicates that the application and sworn statement in support were served on the claimant’s address for service on 4 May 2007. (The sworn statement contains an obvious mistake in that the date of service is given as 4 March rather than 4 May, however, Mr. Malcolm has confirmed that obvious mistake and undertaken to file a replacement sworn statement of service with correct date).

3. When the conference was called to commence just after 8am this morning, only Mr. Malcolm was present. The Court waited for another 10 minutes for Mr. Yawha to appear but he did not. The Court asked Mr. Malcolm to telephone Mr. Yawha. Mr. Malcolm advised that he had already tried to telephone him in the office but he was not there. His office advised that they did not know where he was but that he was in Tanna either today or yesterday. There is no other practical way of finding out where he is and why he is not at this conference. The Court concludes that he has been given an opportunity to attend but has chosen not to. In those circumstances, I have decided that it is fair and appropriate to consider the application to strike out.

4. It ought to be noted that the application is not simply to strike out the statement of claim but is intended to be an application to strike out the claim altogether. It is also to be noted that the limitation defence was clearly pleaded in the statement of defence and it is very clearly the basis of the application to strike out. This distinguishes this case from Kalses –v- Le Manganese de Vate Limited CAC 34 of 2003 (11 June 2004) [2004] VUCA8.

5. Returning to the substance of the application, the claim appears to be founded upon the tort of conversion. The allegation is that the claimant’s cattle entered the defendant’s paddocks "on about 1996 up to 1999". The effect of the statement of claim, which is not particularly clear, is that the conversion is alleged to have taken place when the cattle entered the defendant’s paddocks. The limitation period for the tort of conversion under section 3 (1) (a) of the Limitation Act No. 4 of 1991 is 6 years. At the latest therefore the limitation period had expired by 1 January 2006. Therefore any claim of conversion is statute-barred.

6. Although it is not clear, is possible that the claim contains an alternative cause of action based on contract. This may arise from paragraph 4 which states that "at all material times, the claimant had an understanding agreement with the defendant company to return any cattle to enter party (sic) suppose it trespasses to each others fence". This is probably better read on the basis that that allegation is part of the particulars supporting the claim of conversion because it is referred to again in paragraph 6 (4) "fail to honour the agreements of returning the herds/cattles" as a particular of the unlawful retention of the herd.

7. However, looking at the matter in the most favourable light for the claimant it may be that one can read it as a separate claim in contract. The cause of action in contract arises on breach. Here any breach must be a failure to return the cattle. Such failure must have occurred at the very latest before the end of the 2000, assuming that one has a year to return a cow. The limitation period in contract is also 6 years. Any claim in contract is also statute-barred. Therefore the claim is struck out in its entirety.

8. The defendants are entitled to costs which I fix at VT50, 000.

Dated AT PORT VILA on 9 May 2007

BY THE COURT

C. N. TUOHY
Judge