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Family Kaukare v Lop [2024] VUSC 351; Enforcement Case 2349 of 2023 (25 November 2024)

REASONS FOR ORAL DECISION

1. I heard Mr Molbaleh and Mr Blake in relation to an application by Willie Lop & Family ( respondents) that the Enforcement Warrant issued on 4^th March 2024 be stayed pending the outcome of the respondent’s appeal by the Court of Appeal.
   
2. The application was filed on an urgent basis on 21^st August 2024 together with the sworn statement of Willie Lop in support dated the same date.
   
3. Mr Blake opposed the application on grounds that there have been a great delay of 14 years form the original tribunal’s decision and the omission of the applicant not taking any steps to challenge the decision, and further that any appeal is out of time and the applicant has not sought leave prior to the appeal being filed.
   
4. I gave an oral decision declining the application and dismissing it. I now provide my reasons.
   
5. In oral submissions Mr Molbaleh said the applicant has filed an appeal as Civil Appeal Case 24/3694 to the Court of Appeal which he submitted would be heard in February 2025 and as such there is no prejudice to the claimants, now respondents.
   
6. Despite those submissions, there I no evidence of any Minute or Court Orders showing the appeal has been listed for the February 2025 session. Mr Lop’s sworn statement has no mention of any appeal.
   
7. Even if there was an appeal filed and on foot, an appeal cannot operate as a stay. See section 26 of the Court of Appeal Rules.
   
8. Next the respondents have an unchallenged judgment dated 19^th November 2021. And the certificate of registered interest in land issued on 21^st May 2018 was and has not been challenged at anytime by the applicants. And the eviction order issued on 19^th November 2021 was and has not been challenged by the applicant.
   
9. Mr Lop has tried to shift the blame on his previous lawyer Ms C Thyna for the delays and his not being made aware. That is his personal matter with the lawyer which should not be used as an excuse or reason for delays to seek a stay. It appears to the me the applicant was well aware of all that was happening but did not take any serious note or steps to do the appropriate things, he simply slept on his rights and to use that to deny the claimants/respondents from enjoying the fruit of their judgment. That is an abuse of process. It tantamounts to coming to Court to seek justice with unclean hands.
   
10. It is for the reasons the application by the respondents could not succeed. It was accordingly dismissed.
    
11. Mr Blake informed the Court that costs should follow the event but upon receiving further instructions from Clients, the costs request was withdrawn.
    

DATED at Port Vila this 25^th day of November 2024

BY THE COURT

Hon. Oliver A Saksak

Judge