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Sevuard v College De Luganville [2011] VUCA 27; Civil Appeal 15 of 2011 (12 July 2011)

IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CIVIL APPEAL CASE No.15 OF 2011

BETWEEN:

Mr BRUNO SEVUARD
Mrs SARSOUM MERIADECK
Mr PALAUD MALAKI of Luganville, Santo
Appellants

AND:

COLLEGE DE LUGANVILLE
P.O.BOX 87
LUGANVILLE, SANTO
Respondent

Coram: Hon. Chief Justice V. Lunabek
Hon. Justice J. von Doussa
Hon. Justice D. Fatiaki
Hon. Justice R. Spear
Hon. Justice P. Heath

Counsel: No appearance for the Appellant
Mr Godden Avock for the Respondent
Mr Daniel Yawha for Mr Willie Kapalu of Ace Advocates, the former solicitors on file for the appellants

Date of hearing: 12th July 2011
Date of judgment: 12th July 2011

MEMORANDUM

1. This matter was included in the list of appeals for the Session of the Court of Appeal commencing on Monday 11 July 2011.
   
2. On the afternoon of Wednesday 6 July 2011, a notice was filed in the Court Registry signed by Willie Kapalu of Ace Advocates notifying he had ceased to act for the appellants. Mr Kapalu had until that time been the solicitor on the Court record for the appellants.
   
3. At the call over of the list of appeals on 11 July 2011 there was no appearance either by the appellants in person or by any lawyer representing them.
   
4. The only proof of service of the Notice of Ceasing to Act was an affidavit of service deposing that the Notice had been served on 6 July 2011 on the State Law Office which acts for the respondent.
   
5. The Court file contains no affidavit or other information disclosing why Mr Kapalu had ceased to act for the appellants, nor does the file disclose whether the appellants knew that their former lawyer would not be appearing for them on the hearing of their appeal.
   
6. The Court was concerned that the appellants may not have been aware that their former lawyer was no longer acting, and may not have been given a reasonable opportunity to appear in person or by counsel on the hearing of the appeal. The Court therefore adjourned the appeal for mention again on 12 July 2011, and requested Mr Kapalu to appear on that occasion to inform the Court as to the circumstances surrounding his ceasing to act.
   
7. On 12 July 2011, Mr Daniel Yawha appeared as agent for Mr Willie Kapalu. He informed the Court Mr Kapalu was in Tanna attending a Court hearing on that island and was unable to appear in person before the Court of Appeal. On Mr Kapalu's behalf, Mr Yawha informed the Court that Mr Kapalu ceased to act on 6 July 2011 after receiving instructions to do so from the appellants. The appellants had requested that their file be sent to them in Santo. Mr Kapalu acted promptly on their instructions, filing the Notice of Ceasing to Act with the Court and sending a copy of that notice together with the client's file to the appellants in Santo under cover of a letter which confirmed the instructions to cease to act. The letter also included the Notice of Call-Over which advised that the appeal would be called on 11 July 2011. The letter continued "We advice (sic) that your new lawyer file notice of beginning to act as soon as possible and make himself or herself available on Monday 11 July 2011 to attend the call over".
   
8. Mr Yawha informed the Court that he believed that the appellants were presently in Santo. On 11 July 2011, Ace Advocates had attempted to telephone the appellant Mr Bruno Sevuard in Santo but could only reach his wife to whom they explained the situation.
   
9. Whilst it is of the utmost importance that parties to an appeal comply with the Orders made upon the Review as to the filing of documents, and then appear at the Call Over ready to proceed with argument on the appeal, the Court recognizes that where solicitors cease to act shortly before the hearing of an appeal, unless that situation is brought about by the client, the client must be given a reasonable opportunity to make alternative arrangements. In this case, on the information now before the Court it appears that the situation was brought about by the appellants who terminated the instructions of Mr Kapalu, and reclaimed their file. However, allowing for normal postage times, it is unlikely that the appellants would have received their file in time to make alternative arrangements with new lawyers or otherwise to appear to argue the appeal on 11 July 2011. Whilst it seems that the appellants have brought this situation upon themselves, the Court considers that the appellants should be allowed a further period of time within which to make arrangement for their representation on the hearing of the appeal if they wish to do so.
   
10. The Court has therefore adjourned the hearing of the appeal until 9.00am on Tuesday 19 July 2011. The case will be called again at that time. If the appellants intend to proceed with the appeal they should be ready to do so then. The Court notes that on the Review of the appeal papers on 24 June 2011 the following Orders were made:
    

"1. Appellants to file and serve grounds of appeal by 30 June 2011 and provide affidavit of service;

2. Appellants to prepare and file 6 copies of appeal books by 8 July 2011;

3. Respondent to file and serve response to grounds of appeal by 5 July 2011;

4. Appellants to file and serve written submissions with authorities by 7 July 2011;

5. Respondent to file and serve written response submissions by 11 July 2011;

6. Matter adjourned before the Court of Appeal on 11 July 2011 at 9.00am for review;

7. Court of Appeal hearing notices to issue for 11 July 2011 to be served on both parties. Appellants to assist with service on the Respondent."

11. The appellants are no longer in a position to comply with the time limits in those Review orders. However, to be ready to proceed with the hearing of the appeal on 19 July 2011 they must, in the meantime, have filed and served grounds of appeal and six copies of an appeal book for use by the Court of Appeal. These steps must be taken not later than 12 noon on Monday 18 July 2011.
    
12. If the appellants do not appear in person or through a lawyer when the matter is called again on the 19 July 2011 or if they have failed to file and serve grounds of appeal and the appeal books by 12 noon on 18 July 2011, the Court of Appeal will dismiss the appeal for want of prosecution unless exceptional reasons are then shown why this should not happen.
    
13. The Court directs that this Memorandum be forwarded by the Registry to the appellants forthwith.
    

DATED at Port-Vila, this 11th day of July 2011

BY THE COURT

Hon. V. LUNABEK CJ

Hon. J. von Doussa J

Hon. D. Fatiaki J

Hon. R. Spear J

Hon. P. Heath J