Sevuard v College de Luganville [2011] VUCA 23; Civil Appeal 15 of 2011 (22 July 2011)

IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU
(Civil appellate)

Civil Appeal Case No 15/2011

BETWEEN

MR BRUNO SEVUARD
MRS SARSOUM MERIADECK
MR PALAUD MALAI
Appellants

AND

COLLEGE DE LUGANVILLE
Respondent

Hearing 19 July 2011

Coram: Hon Chief Justice V Lunabek
Hon Justice J von Doussa
Hon Justice D Fatiaki
Hon. Justice R Spear

Counsel: No appearance of the Appellants
Mr Frederick Gilu for the Respondent

JUDGMENT

[1] This appeal was included in the list of appeals for the session of the Court of Appeal commencing on Monday 11 July 2011. When the matter was first called there was no appearance of the Appellants either in person or by a lawyer representing them. As a notice had been filed by the former lawyers for the Appellants notifying that they had ceased to act, the Court stood the hearing of the appeal over to Tuesday 19 July 2011. The Court issued a memorandum setting out the circumstances in which the former solicitor ceased to act, at least in so far as those circumstances were known to the Court. The Court directed that the memorandum be served on the Appellants to notify them of the steps necessary to ensure that the appeal was not struck out for want of prosecution when it was recalled on 19 July 2011.

[2] On 19 July 2011 when the appeal was recalled, there was no appearance of the Appellants or lawyers on their behalf. Inquiry by the Court revealed that no documents had been filed by the Appellants either in the Port Vila Registry or in the Santo Registry. Further, the Court had received sworn statements of personal service of the memorandum issued by the Court dated 12 July 2011 on the Appellant Mrs Sarsoum Meriadeck, the Appellant Palaud Malaki, and on the Accountant for the Respondent. There was no sworn statement of service of the memorandum on the Appellant Bruno Sevuard. However, the Reasons for Judgment given by the primary Judge from which the Appellants seek to appeal record that Mr Bruno Sevuard continues to hold the position of House Master at the Respondent school. As the memorandum of 12 July 2011 records, telephone advice had been given to Bruno Sevuard's wife concerning the listing of the appeal on 11 July 2011. In these circumstances, we infer that the service which did occur of the memorandum, together with the telephone advice, would have brought the substance of the memorandum to Mr Sevuard's attention.

[3] As the Appellants had taken no steps to further prosecute their appeal by the time the matter was recalled on 19 July 2011 the Court ordered that the Appeal be dismissed for want of prosecution.

[4] Mr Gilu informed the Court that the Respondent did not seek to recover costs against the Appellants.

[5] The formal order of the Court therefore is that the appeal is dismissed for want of prosecution to no order as to costs.

Dated at Port Vila, this 22 day of July, 2011

BY THE COURT

Hon. Chief Justice Vincent LUNABEK

Hon. Jon Von DOUSSA

Hon. Justice Daniel FATIAKI

Hon. Justice Robert SPEAR