Norman v Ngwele [2002] VUSC 12; Civil Case 057 of 2001 (28 February 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.57 of 2001

BETWEEN:

ESMIE NORMAN

Plaintiff

AND:

CLARENCE NGWELE

First Defendant

AND:

ANDREW LEONG

Second Defendant

Coram: R. Marum J. MBE

Mr. George Boar for the plaintiff

Mr. John Malcolm for the defendants

JUDGMENT

This case was an on going case. On the 28^th June 2001 the Court strike out the Writ of Summons with order as follows:-

1. The Writ of Summons filed on the 2^nd May 2001 is struck out without prejudice to the plaintiff to file a new Writ of Summons within 30 days from today;

The applicant filed his Ex-parte Summons dated the 27^th July 2001, pursuant to the order of the Court of the 28^th June 2001 to be at liberty to file the new Writ of Summons. The defendants’ counsel opposed this application, on the grounds that the matter is now statute bar pursuant to Section 3 of the Limitation Act. The plaintiff maintains that he was acting within the order of the Court to file the new Summons within 30 days.

Leading case is Raffey Taiwan –v- South Pacific Construction App. Case No. 2 of 1998 considered.

This case be distinguished, in that the plaintiff have complied with Section 3 and Section 15 (3) of the Limitation Act in filing his claim which was struck out without prejudice to file another Writ of Summons. So far the Writ of Summons has not been file stating out the claims. In the event that if it is file containing the very same claim with some amendment without altering the substantive nature of the action, then there is no reason why he cannot proceed to file his writ of summons within the order of the Court. However, if the claim is totally new and outside of the old claim then Section 3 and Section 15 (3) will apply.

It is only proper to allow the plaintiff to file his Writ of Summons in accordance with the order of the Court of the 28^th June 2001 and technicalities should stand aside in preventing the exercise of ones to be heard by the court as a right. And 30 days to file is further extended to run from today.

I therefore grant the plaintiff to file his Writ of Summons.

Dated at Port Vila, this 28^th of February 2002.

R. MARUM MBE

JUDGE.