Charan v Raj [2001] FJCA 20; ABU0042.1999S (16 November 2001)

IN THE COURT OF APPEAL
FIJI ISLANDS
CIVIL JURISDICTION

CIVIL APPEAL NO: ABU0042/1999S

IN COURT BEFORE THE PRESIDING JUDGE –
JUSTICE SIR THOMAS EICHELBAUM AND
THE HON. JUDGE OF APPEAL - JUSTICE IAN SHEPPARD
AND THE HON. JUDGE OF APPEAL - JUSTICE ROBERT SMELLIE
ON FRIDAY 16TH DAY OF NOVEMBER, 2001 AT 11:30 .M.

BETWEEN:

SURESH CHARAN
Appellant

AND:

BANS RAJ
Respondent

Coram: Eichelbaum JA, Presiding Judge
Sheppard JA
Smellie JA

Hearing: Friday 16 November 2001, Suva

Counsel: Appellant in Person
Mr D. Sharma for the Respondent

Date of Oral Judgment Delivered: Friday 16 November, 2001

ORAL JUDGMENT OF THE COURT

Eichelbaum JA, Presiding Judge

Mr Sharma we are not going to call on you and the oral judgment will be delivered.

The origin of his applications a decision of the Small Claims Tribunal in 1996 ordering the applicant to pay $2,000 to the respondent for arrears of rent.

The applicants principle complaints throughout has been that the hearing proceeded in his absence despite his request for an adjournment and despite what he maintained was an inadequate notice of the hearing in breach of the rules of the tribunal. Since then the case has taken many twists and turns.

The applicant appealed but without of time and the Magistrates Court in a full and careful ruling declined his application for leave to appeal out of time. The applicants appeal against that judgment was dismissed by Justice Scott. The applicant contends that the merits of the appeal were not before Justice Scott and the appeal came before Justice Byrne. He stated that what purported to be an appeal was in fact “a braisal attempt by the appellant to have a Judge in this Court with view of this decision in one of his brothers” Justice Byrne dismissed the appeal as an abuse of process and the applicants appeal against Justice Byrne’s decision came before this Court.

The Court held that Justice Scott have jurisdiction to deal with the appeal that he had dealt with and dismissed it and that Justice Byrne was correct to dismiss the purported second appeal.

The first matter before the court today is an application for stay of the order made by the Court of Appeal for the payment to the respondent of the sum of $2,000 and interest which had been paid into court pursuant to a previous direction. When the application for stay was received the Registrar had already made payment pursuant to the direction given by this court. The application for stay being futile I would dismiss it.

Secondly there was an application for leave to appeal to the Supreme Court. Under section 122 2(a) of the Constitution whereby the Court of Appeal may give leave to appeal on the question certified by it to be “of significant public importance.” Although the applicant has advanced a number of matters which he maintains are of significant public importance I am satisfied there are none.

The particular matters which he articulated in response to repeated questions from the bench were first that the rules of court meaning in this instance the rules of the Small Claims Tribunal must be obeyed.

Secondly that Justice Scott did “hear the appeal but only indicated that he would do so and thirdly that the court should not allow an error of law to remain on the record.

In regard to the first ground the question of obeying rules of court is the subject of ample authority and does not require a further decision of the Supreme Court.

As to the second matter this turns entirely on the facts of the case which are set out in sufficient detail in the judgment of this court dismissing the appeal against Justice Byrne’s judgment. There is no question of significant public importance involved but solely a decision on the particular facts.

As to the third ground if there was merit in this it would mean that in any instance where an applicant was dissatisfied with a decision on a question of law this would give grounds for leave to appeal to the Supreme Court. Clearly this is not how section 122 is worded and the question of law itself must be one falling within that section.

Thus in my judgment the grounds required under section 122 are not made out and I would dismiss the application for leave also.

Sheppard JA

I agree that both applications should be dismissed for the reasons given by the Presiding Judge.

Smellie JA

I also agree.

Eichelbaum JA, Presiding Judge
Sheppard JA
Smellie JA