Lal v Bhindi [1990] FJCA 1; Abu0001d.90s (1 May 1990)

Fiji Islands - Lal v Bhindi - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CIVIL JURISDICTION

CIVIL APPEAL NO. 1 OF 1990

BETWEEN:

BACHU LAL
Appellant

AND:

VRAJ LAL BHINDI
Respondent

Mr I. Maharaj for the Appellant/Applicant
Mr H. Patel for the Respondepan>

Application for leave to appeal and stay of execution
(In Chambers)

This is an application seeking (a) leave to appeal and (b) an order of stay of execution

The High Court Order in question was sealed on 2/11/89 and the leave application was filed on 4th January 1990. A notice of appeal was also filed on the same day in this Court. I shall deal with the application for leave first. At the last hearing of this application on 26th April 1990, Mr Maharaj (who is a city agent for Messrs Gibson & Co the solicitors for the Applicant) informed this Court that the application for leave was misconceived as no leave was necessary for appealing since the High Court Order intended to be appealed against was not an interlocutory order. Mr H.M. Patel who appeared for the Respondent (Original Plaintiff) agreed that no leave was necessary but pointed out the Notice of Appeal was out of time bearing in mind the provisions of Rule 16 of the Court of Appeal Rules which read as follows:-

"16. Subject to the provisions of this rule, every notice of appeal shall be filed and served under paragraph (4) of rule 15 within the following period (calculated from the date on which the judgment or order of the Court below was signed, entered or otherwise perfected), that it to say-

(a) in the case of an appeal from an interlocutory order, 21 days;

(b) in any other case, 6 weeks."

Time had started running from 2/11/89 (the date of sealing) and the Notice was filed over 2 months later, i.e. on 4/1/90. Mr Maharaj had to concede that his client was out of time. He however asked that this Court treat the application before the Court as an application for enlargement of time to appeal. Mr H. Patel objected pointing out that his clients had no notice of the new application and there was nothing in the supporting affidavit to show the circumstances of delay and why the rules were not complied with. However, in anticipation his client did object in his affidavit to extension of time.

The history of this case shows that there has been a great deal of laxity on the part of the Applicant and his solicitors in their approach to this case. This Court ought not to encourage such laxity. The rules are made to be complied with. The written notice seeking leave to appeal is deemed to be withdrawn as being unnecessary and the oral request to treat it as an application to enlarge time to appeal is refused. An application for leave to appeal out of time is different in nature from an application for leave to appeal simpliciter and they are based, essentially, on different grounds. However, liberty is reserved to the applicant to file in proper form within 14 days an application for extension of time within which to appeal. Such an application if any must be supported by an appropriate affidavit.

As regards the application for a stay of execution I notice that a similar application was refused by Sadal J in the High Court on 16th February 1990. His ruling reads as follows:-

"This is an application made by the defendant for the stay of the order made removing him from acting as trustee of Dayalal. The deceased, Dayalal had appointed the defendant as the trustee. The two beneficiaries are the plaintiff Vraj Lal Bhindi and his other brother Rati Lal Bhindi. The plaintiff is a dental officer at Lautoka Hospital. The other brother is a medical practitioner in Australia who has now given power of attorney to the plaintiff to administer the estate.

Both these beneficiaries are over 21 years of age and wanted the defendant be removed from acting as a trustee of their father's estate. They were dissatisfied because the defendant has not been paying their the regular sums of money which they are entitled to get from their father's estate. The defendant still has not paid them the arrears. I cannot see any merit in defendant's application.

In fact, defendant in his affidavit sworn on 24th October 1989 said he had no objection to relinquish his position as trustee on certain conditions.

In these circumstances I am not prepared to grant the stay of the execution of the order. Defendant's application is thus refused. Defendant to pay the plaintiff's costs."

Although the application before me is not an appeal but is in the nature of a fresh application, the jurisdiction being concurrent, nevertheless having perused all the documents filed in these proceedings and bearing in mind the submissions made, I see no reason to take a different stand than that taken by the Court below which stand in my view was amply justified. There is nothing germane before me to indicate that events subsequent to the refusal now warrant granting of a stay of order. According to Mr Maharaj the Applicant does not mind giving the trusteeship away and that all he really wants is an opportunity to have access to documents so that he can prepare an account for the period of his trusteeship. The Applicant can do this without being temporarily reinstated. The new trustees have started functioning and to displace them even temporarily by a stay order is provide a recipe for chaos. To order a stay in the circumstances will also be unfair to the Respondent.

There are no exceptional circumstances in Applicant's favour and there is no prospect of his Appeal (if any) being made nugatory if successful. In fact in law no appeal is pending as the Applicant is yet to properly seek and obtain leave of this Court to file notice of appeal out of time. Until the Applicant does this and is granted leave he is deemed to have lost his right of appeal. The purported Notice of Appeal filed out of time without leave cannot at this stage be treated in law as a Notice of Appeal.

The application for stay of execution "pending the hearing and determination" of the so-called Appeal is therefore refused with costs to the Respondent.

Sir Moti Tikaram
Resident Justice of Appeal

Suva, May 1990.

Abu0001d.90s