Home | Databases | WorldLII | Search | Feedback Vanuatu Law Reports

My v Societe Civile Sarami [1985] VULawRp 3; [1980-1994] Van LR 163 (12 April 1985)

[1980-1994] Van LR 163

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 39 of 1985

BETWEEN:

JEAN MY
Plaintiff

AND:

SOCIETE CIVILE SARAMI
Defendant

Coram: Chief Justice Cooke

Counsel: M Leder for plaintiff

JUDGMENT

[FRENCH LAW - INDEPENDENCE - CONTRACT - DAMAGES]

By writ issued on March 16th, 1985, the Plaintiff, a farmer now residing at Noumea, New Caledonia, instituted a claim against the Société Civile Sarami before this Court for a judicial cancellation of a contract of sale entered into on April 29th, 1978, in respect of a property situated at Santo. The Plaintiff also sought an order of the Court that the said Company pay to him the sum of US$100,000 damages.

The writ was served on the Company's representative on March 16th, 1985. Pleadings were filed by the Plaintiff at the hearing, a copy having been served on the Defendant on April 11th, 1985 with notification that the originals would be filed with the Court at the hearing on April 12th, 1985.

At the hearing, Maître Leder, Counsel for the Plaintiff, elaborated the contents of the pleadings, and there was no appearance for the Defendant.

Accordingly, the Court gave judgment as follows: It is established that under the terms of an agreement under seal dated the 29th April, 1978, the Defendant Company purchased a farming property of approximately 2114 Ha 60 a, situated at Santo, comprising two parcels of land adjacent to each other, namely:

(I) one parcel of 2091 Ha being the whole of the property registered at the Vila Lands Registry, No. 480, known as "SARAOUNDOU";
(II) one parcel of 23 Ha 60 a being the whole of the property registered at the Vila Lands Registry, No. 488, known as "ZONE MARITIME PALIKULO VII".

Mr Van Nerum, acting on behalf of the Defendant Company, the purchaser, acknowledged having received from the vendor the duplicate title certificates Nos. 480 and 488, with relevant plans annexed thereto.

The contract of sale also provided that the Defendant Company would become the proprietor and would take possession of the real property and chattels the subject of the sale as from the date of execution of the contract, namely the 29th April, 1978. Further, the sale price was agreed and expressed as US$440,000 which the purchaser undertook to pay in two consecutive annual instalments, namely, a first payment of US$240,000 before the 30th April, 1979; and a second payment of US$200,000 before the 30th April, 1980, all free of interest.

The purchaser Company has not fulfilled its obligations, and although it took possession of the property sold, it has not paid the agreed price.

The Plaintiff acknowledges however that one payment of US$100,000 was paid to him by one Mr Waegman, who had guaranteed the payments due to be made by the Defendant Company, but who has made no further payment.

On the basis of the above-mentioned facts, the Plaintiff on January 29th, 1985, served a formal demand on the Defendant Company requiring payment of the sum of US$340,000 plus interest at the rate of 5% per annum calculated from April 30th, 1980, the date by which the whole of the purchase money should have been paid. The Defendant Company made no payment, but asserted that the law affecting land and property had been changed since Vanuatu had become Independent and that it was at present in a totally undefined state; accordingly the Company offered to give up its rights under the contract if the Plaintiff would repay the US$100,000 already paid, with interest at the rate provided, at the same time claiming that the present situation was the result of the incidence of force majeure.

The Plaintiff's claim appears to be well-founded, and the Defendant Company's reply does not stand up to examination. The Plaintiff's claim is based upon the provisions of Article 1184 of the French civil code, according to the terms of which, in a case where one of the parties commits a default under the contract, the other party has a choice either to apply for specific performance of the contract, if this remains possible, or alternatively to ask for cancellation of the contract with appropriate damages. The Plaintiff has sought the latter remedy, and it remains to decide whether his claim is well-founded.

The Defendant Company has not denied that it is in default under the terms of the contract of April 29th, 1978, and that it has not paid the purchase price which it had undertaken to pay. This failure to fulfil an essential obligation in a contract of sale is sufficient ground for judicial cancellation of the contract.

In summary, firstly the contract was entered into by the parties on April 29th, 1978, more than two years before the New Hebrides achieved its Independence, and further, following a decision of the Court itself, in Russet v. Chapuis Partners, the claim that the purchaser has been dispossessed of the land as a result of the adoption of new legislation affecting land cannot be successfully maintained.

Therefore, as it is common ground that the Defendant Company has not fulfilled its obligations, the motion for cancellation of the contract by the Court merits acceptance.

The Plaintiff has also claimed damages of US$100,000 from the Defendant Company, and in support of this claim the Plaintiff submits that he has lost possession of his property since April 29th, 1978, the date of the contract, and since that date he has had no return from it. As the contract was signed almost seven years go, the Plaintiff's claim is well-founded, considering the loss which he has suffered, the value of the property and the perfect condition of the property at the time of sale.

On the basis of these considerations, the Court orders that the said contract shall be cancelled, and all losses and expenses shall be borne by the Defendant Company; the sum of US$100,000 damages is awarded to the Plaintiff against the Defendant Company, with interest at the rate provided from the date hereof; costs and expenses of the Plaintiff and his Counsel, Maître Leder, shall be paid by the Defendant Company.

12 April 1985

FREDERICK G. COOKE
CHIEF JUSTICE