Niptik v Matthew [2005] VUSC 106; CC 006 2004 (6 September 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Appeal Case No. 6 of 2004

BETWEEN:

ROBERT NIPTIK
Applicant/Appellant

AND:

JOSHUA MATTHEW
Respondent

Mr Justice Oliver A. Saksak
Mrs Anita Simon – Clerk

Applicant in person
Mr Richard Kalses for the Respondent

6th September 2005

JUDGMENT

On 13^th June 2003 the Magistrate’s Court ordered that the applicant be evicted on land belonging to the respondent in Civil Proceedings No. 3 of 2003. The applicant did not appeal that decision. He now wish to do so. He filed an application on 15^th September 2004 seeking orders that –

(a) The Order of eviction dated 13^th June 2003 be stayed pending the determination of his appeal.

(b) Leave be granted to him to appeal out of time.

His application is supported by his sworn statement dated 9^th July 2004 which is read into evidence. He produces the Annexures referred to in paragraphs 1, 4 and 6.

In response to the application Mr Kalses objects to the orders sought on the basis of the sworn statements of Joshua Matthew and Harry Killet which are read into evidence.

Apart from the matters raised in this sworn statement the applicant gave two other reasons why leave to appeal out of time should be granted. These are due to the fact that he had insufficient funds to appeal in time, and further that no lawyers are resident in Malekula to assist.

Mr Kalses submits these are insufficient reasons and should be rejected. I have considered those submissions and although I think that they are insufficient, it is the view of the Court that the justice of the case would be seen to be done if leave to appeal out of time was granted to the applicant. The consequential effect is that the Orders of 13^th June 2003 should be stayed pending the filing of a Notice and Grounds of appeal by the applicant.

In the circumstances I now order that –

(1) Within 28 days from the date of this order that Applicant shall file and serve a Notice and Grounds of his appeal.

(2) The Orders of 13^th June issued 2003 issued by the Magistrates Court are stayed for a period of 28 days pending the filing of a Notice and Grounds of appeal by the applicant. In the event that he fails to do so, the respondent have entitle to enforce the Orders at any time thereafter.

(3) Leave is accordingly granted to the applicant to file a Notice and Grounds of appeal out of time but provided only that he does so within 28 days from the date hereof.

(4) Costs be reserved.

DATED at Lakatoro this 6^th day of September, 2005.

BY THE COURT

OLIVER A. SAKSAK

Judge