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Jonas v William [2002] VUSC 63; SC 011-01 (4 March 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.11 of 2001

BETWEEN:

DONALD JONAS

Plaintiff

AND:

CHARLIE WILLIAM

Defendant

Coram: Before Mr Justice Oliver A. Saksak in Chambers

Counsel: Mr Hillary Toa for the Plaintiff
Mr Bill B. Tamwata for the Defendant

Date of Hearing and Decision (Oral): 1st March, 2002.

JUDGMENT

The Defendant applied by summons dated 3rd December 2001 pursuant to Orders 20 and 21 Rules 1 and 2 of the Court of Appeal Rules 1973. (the Rules) He sought leave to appeal against the entire interlocutory judgment and orders of the Court dated 19th October, 2001.

Order 20 of the Rules states –

“Except where by Ordinance otherwise provided and subject to rule 21, any notice of appeal, whether from an interlocutory or final decision of the High Court shall be filed with the Registrar of the High Court within thirty days after the decision complained of, calculated from the date on which the judgment or order of the High Court was signed, entered or otherwise perfected.” (emphasis, mine).

Order 21 of the Rules states –

“(1) No notice of appeal against any interlocutory Order of the High Court, whether made at first instance or in exercise of its appellate jurisdiction, in any civil case or matter shall be filed unless leave to appeal has first been obtained from a judge of the High Court .........; or if such leave be refused, from the Court of Appeal. (emphasis, mine).

(2) Every application for leave to appeal under this rule shall be by summons in chambers to be filed with the Registrar of the High Court or with the Registrar of the Court of Appeal, as the case may be, within the period prescribed in rule 20 for the filing of notice of appeal:

Provided that upon the filing of an application for leave to appeal time within which, if leave be granted, the notice of appeal shall be filed shall be extended by such period as a judge of the High Court, the Senior Magistrate, or a judge of the Court of Appeal, as the case may be, shall consider appropriate having regard to all the circumstances.”

Along with his application for leave to appeal, the Applicant also sought order for an extension of time pursuant to Order 21 Rule 2. The reasons in support of that application are contained in the affidavit of Mr Tamwata of 3rd December 2001. His basic arguments there are that although the interlocutory Orders were pronounced orally on 19th October 2001, they were published later and that it was received by Counsel only on 5th November 2001. In his submission Mr Tamwata submitted that the thirty days period allowed under Order 20 of the Rules should be calculated from 5th November 2001 and not on 19th October, 2001. I reject that submission. Although the judgment was published later it was back dated to 19th October, 2001. Therefore under the provision of Order 20 of the Rules thirty days for this case began on 19th October, 2001. However having considered all the circumstances, it is my view that this is a case where I ought to extend time to the Applicant.

I now return to the issue of leave to appeal. Order 21 Rule 1 states clearly that no notice of appeal against any interlocutory order of the High Court shall be filed unless leave to appeal has first been obtained. That provision is not made subject to Order 19 of the Rules and Order 19 is not made subject to Order 21. This is where these provisions come into conflict with each other. Order 19 Rule 4 states –

“Every notice of appeal shall be filed with the Registrar of the High Court .............”

This is a mandatory provision as well.

The fact here is that the Applicant and intending appellant has not filed a notice of appeal which he is required to do under Order 19 Rule 4. If therefore he has no notice of appeal indicating in effect that he has no appeal, then what is the point of seeking leave?

Even if my interpretations are not correct, I consider that this is a case in which leave to appeal ought to be refused. There are two basic reasons. In my ruling of 19th October 2001 I expressed concerns about the delays to proceedings when the Defendant is allowed to proceed in this manner. Secondly the cost factor which may exceed the amount being claimed in the writ.

For those reasons I dismissed this application for leave to appeal and ordered that the Applicant pays the Respondent’s costs.

PUBLISHED at Luganville this 4th day of March, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge