IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.117 of 2001
BETWEEN:
RORO SOPE AND OTHERS
Appellant
AND:
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Respondents
Coram: R. Marum J. MBE
Mr. Juris Ozols for the Appellant
Mr. Silas Hakwa for the Respondents
This was an application for the court to enlarge the time of e of appeal to allow
the appellants to lodge their appeal
out of time.
Order 60 rules 3 (1), appeals to be lodged on a final
decision of a magistrate within 3 m from the date of decision.sion. This
is
not a facilitating procedure rule in preparation for trial, but set the
limitation period for appeal on final decision
of the magistrate, which
means that the appellant had all the rights to appeal within 3 months. Order
60 rules 3 (1)
is a law as defined for under the Interpretation Act [CAP.
132] as rules are laws having effect in the Republic of Vanuatu and the
court to apply. This is not an area of
right to be heard, as Order 60 Rule 3
(1) has provided the period for the right to be heard on filing of appeal
within
the prescribed period. Generally, if a party has elected not to file
his/her appeal within three months than he/she has elected
not to appeal and
that is an exercise of right and ends there and than. For a party to come
after that period must show
cause by evidence, as ignorance of law is no
excuse.
The written decision was published around February 2001
and the appeal was lodge on 11 September 2001, wel, well out of time
and by Order 60 rule 3 (1), the court have no jurisdiction any more to deal
with
the matter and that’s the law. The only way for the court to deal with
the matter is for the Applicants to apply for leave
before the Magistrate
Court or even the Supreme Court as the road gate to file out of time. If it
is taken before the
Magistrate Court and refused, then a right of appeal
lies to the Supreme Court, on the refusal to grant under s.16 of the Court
Act CAP 122.
On application, the Applicants under rule 3 (4) must show
by affidavit; that there is aine reasons to the satisfacisfaction of the
court for not filing within the prescribed period;
Having said this, the counsel ces and also by his
affidavit, that the issue involved question of law, and there were were delay
with their counsel representative.
On the basis of representation, I am satisfied that the
parties are village people relying on representation in doing justice
in
their case. This was not forth coming to them and should not be penalized.
The reason is genuine enough for not bringing
their case on for appeal on
time, and have demonstrated that they need to be heard and should be allowed
to.
For these reasons, I will allow the Applicants to file
their appeal out of time. As they have filed their appeal before hearing
of
the application for enlargement, a date to be set for hearing by the
Registrar. Likewise, the Registrar shall not
file any appeal from the
magistrate court on final decision on civil matters file out of time, apart
for the application
for enlargement of time to appeal to be filed first.
Only after leave is granted, the Registrar is to accept filing of the
appeal.
As to cost, it was unnecessary to bring the other party
to this hearing on the Applicants own re to appeal within three mree
months.
This caused unnecessary expenses to the Respondent and the Applicant must
pay the cost of this application hearing
to the Respondent to be taxed if
not agreed.
Dated at Port Vila, this 14 daMarch 2002.
R. MARUM MBE
JUDGE.
