Toara v Simbolo [1999] VUCA 6; Civil Appeal Case 11 of 1998 (1 September 1999)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appellate Jurisdiction

Civil Appeal Case No.11 of 1998

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BETW>BETWEEN:

Mr. API TOARA
Plaintiff

AND:

Mr. KALO SIMBOLO
Defendant

Coram: Acting ChiefChief Justice Vincent Lunabek;
Mr Justice Bruce Robertson;
Mr Justice John von Doussa;

Hearing: 27^th September, 1999

REASONS FOR GRANTING LEAVE

An appeal in this case was listed at the April session. At the request of both counsel then acting the matter (without comment) was by consent adjourned to this session of the Court.

Since that time, enforcement issues have intervened as a result of which a hearing was constituted to deal initially with the question of stay. In the course of that the point was taken that the Notice of Appeal had been filed one day late. An application for leave was accordingly required.

This matter has become permeated by various procedural points which we have addressed and disposed off. It is clear that there is an urgent need for the merit of this matter (which have for far too long been lying unresolved) to be brought to a conclusion.

The substantive matter had been heard before a Judge of the Supreme Court on the 15^th September 1998. In a reserved decision delivered on 1 October 1998 the Plaintiff’s Originating Summons was dismissed.

There is on the file a Notice of Appeal against that decision which is dated and was filed on 2^nd November 1998. There was no argument before us that the right to appeal must be exercised within 30 days. (Rule 20 but with the ability to enlarge time under Rule 9). There is uncontroverted law that the 30 days includes the day on which the judgment was delivered.

The judgment was delivered on a Thursday. The 30 day-period expired four (4) weeks later on a Friday.

An affidavit has now been filed by counsel who was acting for the Plaintiff/Appellant at that time which deposes that he miscalculated and assumed that had until the Monday to deal with the matter.

As previously noted all this happened in November of last year. There was no suggestion that the appeal out of time when it was filed nor was that matter adverted to when the matter was called before the Court of Appeal in April.

The first time that there was any substantive action on this file in the Court of Appeal was when current counsel for the Respondent was instructed in July 1999. On 8 July 1999 a letter was written requiring the premises which were being occupied by the Plaintiff/Appellant to be vacated in accordance with the Supreme Court judgment.

It is noted in that letter for the first time that the appeal had been filed out of time and there had been no order for stay.

With great speed an application for stay and leave to appeal out of time was filed.

The documentation used indicated that proceeding was in the Court of Appeal. We refrain from commenting on the issue of whether the proceeding should have been in the Court of Appeal or in the Supreme Court save to acknowledge that they were filed with great urgency. There was a hearing on 29^th July 1999 which was before the Judge who have heard the case in 1998.

The Order which was made is entitled (as was the applications) as being an Order of the Court of Appeal. There is no question that the case was heard by one Judge alone.

Article 50 of the Constitution of the Republic of Vanuatu provides:-

"Parliament shall provide for appeals from the original jurisdiction of the Supreme Court and may provide for appeals from such appellate jurisdiction as it may have to a Court of Appeal which shall be constituted by two or more judges of the Supreme Court sitting together."

It is clear that for a Court to be the Court of Appeal it must be constituted by two or more judges of the Supreme Court sitting together.

On the most basic interpretation of the clear and unambiguous words of the article, what occurred on the 29^th July could not have been a hearing of the Court of Appeal.

We are conscious that there are the provisions in the Court of Appeal Rules (1973) which indicate that various things can be done by various Judges but to the extent that those Rules do not conform with the requirements of the Constitution of the Republic of Vanuatu they cannot be valid.

We were therefore left with no doubt that the Court of Appeal had not previously been seized of this matter and it is competent to consider the question of leave. Whether we consider it as an application to grant leave or an application for leave to appeal against the refusal to grant leave by the Supreme Court judge is now immaterial.

As is often the case with the effluxion of time the situation has now altered substantially. There is the affidavit of the counsel as to what occurred which was not available in July.

In our judgment, although the rules and the time limit are not to be lightly overlooked, the reality here is that for 8 months after the appeal had been lodged nobody turned their mind to the fact that it was one day out of time. Further nobody took any action for that time to try and enforce the judgment of the Supreme Court at all.

Prejudice is not an absolute requirement but in this situation where there is absolutely no question of any prejudice as evidenced by the inaction, good justice is not achieved by refusing the Plaintiff/Appellant his right of appeal when he filed his documents one day late and no detriment was created as a result.

We are equally of the view that the matter needs to be called on and heard. Accordingly we granted leave and extended the time for filing the appeal until the 2^nd November 1998. We direct that the substantive appeal is to be heard on Thursday 7^th October 1999.

By any sensible measure this matter should be settled. The only advantage which will arise from the appeal is to provide costs to lawyers and no likelihood of benefit to the parties themselves.

Counsel have a week in which to allow good sense to prevail. If they remain determined to litigate the Court of Appeal will hear the matter next week.

Dated at-Vila, this …&133;……. day of September, 1999

Vincent Lunabek, ACJ
Bruce ROBERTSON, J
John von DOUSSA, J
Daniel FATIAKI, J