Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Tenene v Kalmaire [2006] VUSC 20; CC 031 2005 (28 March 2006)

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

Civil Case No.31 of 2005

BETWEEN:

CHIEF WAIA TENENE
Appellant

AND:

SUAL KALMARIE
First Respondent

AND:

KALMETABIL KALMET NMAK
Second Respondent

Coram: Justice H. Bulu

Counsels: Mr. George Boar for the Appellant
Mr. Nigel Morrison for the Second Respondent

Date of Hearing: 3 March 2006
Date of Decision: 28 March 2006

JUDGMENT

INTRODUCTION

1. The Magistrates Court in Vila had listed the Appeal by the Appellant to commence at 9.00 a.m. on 17 February 2005. When the Court hearing commenced, counsel for the Appellant did not attend. The Court dismissed the appeal.
   
2. On 1 March 2005, the Appellant filed his appeal with the Supreme Court, seeking an order of this Court to set aside the decision of the Magistrate Court in dismissing the Appeal.
   
3. The grounds advanced for the appeal are:-
   
   • (a) The Appellant could not attend the appeal hearing of his appeal as he had to attend to the bereavement of his son and attend to custom formalities.
     
   • (b) Counsel for the appellant was in attendance at Supreme Court in cases in Luganville, Santo on 16th February 2005 and could not make it to Port Vila in time to attend to such appeal hearing.
     
   • (c) The Magistrate erred in law by failing to provide the Appellant an opportunity to present his appeal in Court since he has clearly demonstrated by pursuing and exhausting that avenue.
     
   • (d) That by dismissing the appeal the Appellants right to justice was at end and the learned magistrate should give much more consideration to the appellant right of audience before than any other consideration.
     
   • (e) That by dismissing the Appeal the learned Magistrate erroneously place undue reliance over form rather than substance.
     
4. The hearing of appeal by the appellant took place on 3rd March 2006. The grounds advanced by the Appellant above could be appropriately summarized as follows:-
   
   • (a) the Court erred in striking out the appeal in his absence; and
     
   • (b) the Court erred in placing too much emphasis on form over substance.
     

SUBMISSION BY APPELLANT

5. Mr. Boar, on behalf of the Appellant, submitted that the learned Magistrate had erred in not giving the appellant the opportunity to put his case to the Court before a decision is made. Mr. Boar had told the Court that the failure on his part to attend Court for the hearing of the appeal was due to his attendance to other court matters in Luganville, Santo. Because of that he could not return to Vila on time for hearing of the appeal.
   
6. Mr. Boar submitted also that no prior notice to show cause was given to the Appellant regarding the dismissal of the appeal in the Court below "for want of Prosecution". The appellant should be given a chance to present his appeal and he should not be prevented from doing that.
   
7. Mr. Boar further told the Court that the Magistrate’s Court erred again when he placed emphasis on form over substance. The Court did not give an opportunity to the Appellant to tell his appeal story before making a decision on the merit of the appeal.
   

SUBMISSION BY THE RESPONDENT

8. Mr. Morrison on behalf of the Respondent submitted that the decision of the Learned Magistrate in striking out the appeal is correct and proper in the circumstances. There is nothing wrong with that decision. This matter has a very long history and must come to a finality. Mr. Morrison went on to tell the Court that the decision is in line with the Rules especially Rule 12.9 (2) (b) (if the claimant does not attend when the trial starts, the Court may dismiss the claimant’s claim), and Rule 9.10 (1) (a) and (2) (b) (if the claimant does not take the steps in a proceeding that are required to ensure the proceedings continue, the Court may strike out the proceeding at the hearing).
   
9. Mr. Morrison also submitted that in the light of the Court of Appeal decision 24 of 2005 in COPV v Tavoia and Terry [2005] VUCA 24, the appeal of the Appellant must fail. The Court of Appeal has stated in no unequivocal terms that "once a firm date had been given for any hearing it is imperative that it be maintained and not over looked or ignored except with the agreement of the Judge. Counsel do so at their peril".
   
10. Mr. Morrison continued that the Appellant has failed to provide detail grounds of appeal, winnable grounds for the Court’s consideration. That this is reflective of lack of proper attention to this matter, Court procedures and attendances before the Court. It is clear from the ticket bud attached to sworn statement of Mr. Boar that he knew he was never going to make it back in time for hearing on 14 February 2005 and did nothing about it.
    

DISCUSSIONS

11. The decision the subject of this appeal is that of the Learned Magistrate of 17 February 2005 striking out the Appellant’s appeal. It is obvious from the evidence that both Mr. Boar and his client were fully aware of the date that the hearing will commence on.
    
12. In this appeal Mr. Boar has failed to file detail grounds of appeal, good grounds, giving justification for the remedies being sought.
    
13. Considering the grounds advanced for this appeal, it is clear that the Appellant did not consider Court attendance on that day a priority. He had to attend to the bereavement of his son and further attend to custom formalities. A death in a family is a big thing and affects those in the family very profoundly. In this case there is no evidence of such a death and custom ceremonies that followed before this Court. What is stated in the grounds of appeal and counsel’s written submission for the hearing are not evidence.
    
14. The Court had given the Appellant the opportunity to tell the Court his appeal story on the 17th of February 2005. He chose not to attend. His legal counsel knew the starting time on that date. He knew also that in the morning he would still be in Luganville and would catch the 8.15 a.m. flight back to Vila. The ticket bud shows that the expected arrival time in Port Vila was 9.10 a.m. Upon touch down passengers usually wait up to 20 – 30 minutes before they could collect their luggage and catch transport into town. That could take up to 15 minutes depending on traffic. If Mr. Boar had his file ready with him, did not have other luggage to wait for he could have reached the Court about 9.30 a.m. at the latest. It would have been too late. The matter was to have commenced at 9.00am. Mr. Boar knew or ought to have known he would be late but did not do anything about it. He did not advise the Court. He now comes to the Court and says that the Learned Magistrate had erred in his decision in not giving his client the opportunity to be heard. Coming from a senior officer of the Court, I find this mischievous indeed. He did not even bother to check with the Court immediately on arrival as to what had happened with the matter. He only did so in the afternoon about 3.00 p.m. It is clear, in my view, that counsel did not give his proper attention to the appeal hearing at that time.
    
15. The circumstances of this case show that the appellant was not prevented at all from coming to Court and presenting his appeal. He decided not to do so at the time the Court had set.
    
16. The Court of Appeal decision in COPV v. Tavoa and Terry [2005] VUCA 24; Civil Appeal Case No. 16 of 2005 relating to counsels not keeping hearing times agreed to with the Court is very clear. In that case counsel for the appellant did everything possible, i.e. wrote to the Court Registry, called the registry several times and talked to the other counsel to reschedule the hearing. The other counsel agreed for adjournment and that the appellants would pay wasted costs. The counsel for the appellants did not turn up in Court at the time and date set for the hearing on the understanding that counsels had agreed the matter to be adjourned and the matter would be adjourned. However, the Court sat and struck off the appellants case. On the second page of its judgment the Court of Appeal had this to say about counsels who fail to turn up for hearings.
    

"It needs hardly to be stated that once a firm date had been given for any hearing it is imperative that it be maintained and not overlooked or ignored except with the agreement of the judge. Counsel do so at their peril."

17. In that case the appeal was allowed because the evidence before the Court of Appeal made it "abundantly clear that there are triable questions of fact which can only be determined by a Judge after hearing and assessing all the witnesses."
    
18. In this case, the grounds of appeal lack detail grounds showing that the appellant had a good case or raises questions of fact which can only be determined by a judge after hearing and assessing all the evidence. The decision of the Magistrate Court is in line with the Rules and for the other reasons I have outlined above, I see no reason to disturb the decision of the Court below.
    
19. That leaves this Court with one option, and that in my view, is to dismiss the appeal.
    
20. The formal orders of the Court are:-
    
    • (a) The appeal by the Appellant, Chief Waia Tenene is dismissed.
      
    • (b) Costs on the standard basis in favour of the Respondent to be paid by the Appellant and to be taxed if not agreed.
      

DATED at Port Vila, this 28th day of March 2006.

H. BULU
Judge.