Lakatoro Consumer Co-operative Society Ltd v Gongi [2005] VUSC 99; CC 001 2005 (10 August 2005)

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

Civil Appeal Case No. 1 of 2005

BETWEEN:

LAKATORO CONSUMER CO-OPERATIVE SOCIETY LIMITED
Appellant

AND:

WALTER GONGI
Respondent

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Willie J. Kapalu for the Appellants
Mr Saling N. Stephens for the Respondent

Date of Hearing: 4th August 2005
Date of Judgment: 10th August 2005

JUDGMENT

This is an appeal against the judgment of the Magistrate’s Court sitting at Lakatoro issued and dated 11^th October 2004.

The respondent herein sued the appellants as his employer. He worked as a driver for the appellants for some 11 years earning a monthly salary of VT26,000. On 23^rd January 2001 his employment was terminated. He alleged that his termination was done without notice. He claimed damages for unjustified dismissal. He sued the appellants for the sum of VT78,000 being for notice, severance payment for 11 years of service at VT143,000 and six times the amount of severance allowances at VT78,000. The total sum of damages claimed was VT299,000. The Court below gave judgment in favour of the respondent and awarded the above sum against the appellants. In addition the Court below awarded interests at the rate of 10% and costs.

The appellants therefore appeal to this Court. Their grounds are stated in the Notice of Appeal dated 31^st March 2005.

In opposing the appeal Mr Stephens raised as a preliminary issue for consideration and determination by the Court. This was the issue of late filing by the appellants of their Notice of Appeal. He argued that the Court below had delivered its written judgment on 11^th October 2004 and the appellants having only filed a Notice of Appeal on 31^st March 2005 were outside of the time allowed for appeals. As such Counsel argued that the appellants should have first applied for leave to appeal out of time. Thus he argued the appellants did not do. Mr Stephens submitted that if the Court found in his favour on this point, it was enough to dispose of the appeal. His responses to the appellants’ grounds were only made on an alternative basis.

In his response Mr Kapalu acknowledged that the appeal was filed out of time but he argued and submitted that the payment by the appellants of the sum of VT10,000 on 25^th October 2004 was an expression of their intention to appeal and that the receipt be accepted or deemed a Notice of Appeal.

The Court will deal with this preliminary issue first. The issues are –

(1) Whether or not the appellants are out of time?

The answer is in the affirmative.

Appeals from the Magistrate’s Court to this Court are regulated by Division 9 of the Civil Procedure Rules No. 49 of 2002. Rule 16. 28 provides for procedure for appeals as follows:-

“(1) An appeal is made by filing and serving an application within 28 days from the date of the decision.

(2) The application must:

(a) set out the grounds of the appeal; and

(b) be in Form 33.

(3) The Court must write the first hearing date on the application.”

The facts indicate that a notice of appeal was only filed on 31^st March 2005 that is almost some 6 months after the 28 days requirement as stated by Rule 16. 28 (1) had lapsed.

(2) Did the appellants seek leave to appeal out of time?

It is clear that the appellants did not seek leave to appeal out of time. In view of the considerable time that had lapsed after the 28 days period required, it is the view of the Court, that although the current Rules do not make any specific requirements of leave, it is an appropriate practice that where judgment or order is final that leave should first be sought and obtained.

Arising from this is a further point which was not raised by Mr Stephens but must be canvassed by the Court for completeness sake. This is the point about stay of orders.

The judgment of the Court below dated 11^th October 2004 ordered the appellants to pay the sums of VT299,000 together with interests within 4 months. That means that by 11^th February 2005 the appellants should have paid the judgment sum. They have not shown that they did. They expressed their interest to appeal on 25^th October 2004. The best thing they could have done then was to apply to stay the execution of those orders. There is nothing to show that they did apply. Rule 13.4 states:

“Filing of an appeal against a judgment does not affect the enforcement of the judgment unless:

(a) the party appealing applies for a suspension; and

(b) the court grants a suspension.”

(3) Whether Receipt of Payment of Appeal Fees A Notice of Appeal?

The answer is in the negative.

The Receipt of payment is shown at p.41 of the Appellants’ Appeal Book. It does not look any where close to Form 33 as required by Rule 16.28 (2)(b).

And the receipt is a bare document. It did not contain any grounds as required by Rule 16.28 (2)(b) which is a mandatory requirement.

The explanation given by Mr Kapalu for not filing the Notice of Appeal in time was because of the relocation and changes being experienced by his law firm at the time when the matter was being carried out. That can never be a sufficient excuse why the Notice of Appeal could not have been filed in time. The appellants could easily have retained the services of another legal practitioner to do that. It appears that they chose not to do so.

In the circumstances of this case it is the view of this Court that there is no basis for the appeal for the reasons provided above. That is sufficient to dispose of the appeal and it is not necessary for the Court to consider the other grounds raised by the appellants in any great detail. It suffices for the Court to say that those grounds are insufficient to persuade the Court to find that the Learned Magistrate had erred in fact and in law to have found as he did.

Accordingly this appeal is dismissed with costs against the appellants. The judgment of the Court below and its orders dated 11^th October 2004 are confirmed and upheld.

DATED at Luganville this 10^th day of August, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge