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Tom v Coulon [2002] VUSC 72; SC 009-02 (4 October 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)
Civil Appeal Case No.9 of 2002
BETWEEN:

WILLIE AVOCK TOM

Appellant
AND:

ROBERT COULON

Respondent

Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Mr Willie Avock Tom, Appellant in person
Mr Robert Coulon, Respondent in person

Date of Hearing: 4th October, 2002, 2 p.m

RULING

The Appellant applies by Notice of Motion dated 27^th June, 2002 filed on his behalf by Mr Hillary Toa. It was made returnable on 24^th September 2002 but was adjourned to today on the application of the Appellant because his counsel was not available. Today Mr Toa is not present and the Appellant again seeks an adjournment. His application is refused because Mr Toa has not given any definite date in November on which he would like this matter to be heard. There have been too many adjournments in the past in the Court below because Mr Toa could not be available. This practice must not be a habit in this Court. I have allowed one adjournment on 24^th September and that should have given ample time to the Appellant to arrange for Mr Toa to come for this hearing.

By his Motion the Appellant seeks an order that the power of attorney issued to the respondent is a nullity as it was fabricated and should be declared as false. He also seeks an order for costs. The case is registered as an appeal. There is no Notice of Appeal and there are no grounds for the appeal filed in accordance with the Rules. It appears that the appellant is treating his Notice of Motion as an Appeal.

The history of the matter is that the Respondent was initially the Plaintiff in Civil Case No.99 of 2001. He filed a Writ of Summons on 30^th August 2001 through Bill Bani & Associates.

On 28^th September 2001 the Appellant as Defendant sought to be represented by counsel and asked for an adjournment. He got his order and some directions, one of which directed the Defendant to file his defence within 14 days. The matter was adjourned to 21^st November 2001. On this date Mr Toa was present and told the Court that he had not seen the directions issued by the Court and accordingly sought an adjournment. The matter was adjourned to 12^th December, 2001. On that date when the Court convened Mr Toa was not present. He had informed the Court earlier by letter that he would not be available and he requested that all his matters be adjourned to early next year, meaning this year 2002. The Court proceeded to hear the matter in Mr Toa’s absence. The Orders of the Court that day was that the defendant deliver up peaceful possession of leasehold title No.03/0K74/015 within three months.

On 5^th July 2002 when the Court sat again the Appellant and his counsel were not present. The Appellant has not complied with the Order of 12^th December 2001 and the Court gave judgment for the Respondent and granted an order forcefully evicting the Appellant by 10^th July, 2002.

The Appellant did not appeal those orders. He did not make any application to have them set aside on the basis that he had a defence. Instead he files a Notice of Motion on 27^th June, 2002 in this Court to have the power of attorney, a subject in issue in the Writ issued against him, to which he failed to file any defences or pleadings.

It is clear to me that this Application is without merit. It is done in an abuse of process. I have no alternative but to dismiss the application and order that the Appellant pays the Respondent’s costs.

DATED at Luganville, this 4th day of October, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge