Massing v Atel [1999] VUSC 25; Civil Appeal Case 001 of 1999 (7 May 1999)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

IN LUGANVILLE SANTO

(APPEAL JURISDICTION)

APPEAL CASE 01/99

BETWEEN:

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DICKSON MASSING AND PAUL MASSING

C/- Barereo Village

North East Ambrym

Appellants

AND:

JOHN ATEL

C/- Luganville

Santo

Respondent

JUDGMENT ON APPLICATION FOR LEA APPEAL

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> This was an application before me seeking leave to be granted to the defendants to file their appeal, over the decision of the Magistrate Court delivered on the 28th day of May 1998. It is not necessary at this stage to state out the cause of action, as the process this morning, is basically seeking leave to appeal the decision of the magistrate court. In view of the process, the provision of order 60 rule 3 (1), all appeal as to the final decision of the Magistrate shall be filed within 3 months period, and in the case of an interlocutory order, then such appeals shall be filed within 14 days of such order or in other cases where the presiding Magistrate enlarges the time limitation.

The enlargement of time limitation under Order 60 Rule 3 (1) is an authority in law empowering the court to exercise the power in exceeding the time limitation under under Order 60 Rule 3.(1), both for an interlocutory order and a final order of a Magistrate.

In view of the enlargement of time limitation, the party seeking to appeal must apply to ourt, as for interlocerlocutory order, must apply within the period of 14 days to the court to seek leave to appeal, and when leave is granted then the appeal should be lodged within 14 days from the granting of the leave to appeal and in a final order an application for enlargement of time shall be made within 3 months period and not after . If not then special leave shall be made to the Supreme Court exercising its inherent jurisdiction in law whether to grant leave or not Otherwise all appeal shall be the statute bar by this rule.

In coming to say this, then after listening e counsel for the defendants and reading the document there in, the defendants in this matter wrote a letter, dated the 7/6/98 to the Hon. Acting Chief Justice which the subject matter- Appeal case 6/7/98. There were no response from the office of the Chief Justice nor the office of the Registrar in assisting the parties in response to this letter to pursue their right to appeal.

In view of this letter, I can only conclude that they intended to appeal, and tas materialised in th their letter of the 7/6/98. If they have taken that step then they have complied with provision of order 60 Rule 3 (1)

Having come to this decision, it is only proper for the court to allow them to exercise that right by formalising their intention by compiling their appeal in compliance with Order 60 Rule 3 (1).

In coming tclusion, there is no need for me to allow the defendants leave to appeal, but only maly make declaration that the defendants have complied with Order 60 Rule 3 (1) and they should process their appeal in the usual process.

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REGGET MARUM MBE

Acting Judge of the Supreme Court