Registrar of Titles v Prasad [2001] FJCA 5; Abu0009D.2001s (8 June 2001)

Fiji Islands - Registrar of Titles v Prasad - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF FIJI

AT SUVA

CIVIL APPEAL NO. ABU0009/2001S

(High Court Civil Action No. HBC306/92)

BETWEEN:

REGISTRAR OF TITLES

Appellant

AND:

SHARDA PRASAD

f/n Ram Asre

Respondent

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In Chambers: The Hon. Madam Justice Shameem

ass=MsoNormoNormal style="margin-top: 1; margin-bottom: 1"> Hearing: 29^th May 2001

Counsel: Mr J. Udit for Appellant

Mr A.K. for Respondent

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Decision: Friday 8^th June 2001

DECISION IN CHAMBERS

This is an application for leave to appeal out of time, under Rule 17 of the Court of Appeal Ru999.

On 26^th January 2000, Byrne J assessed damages at $225,000 interest at 6% from the date the writ was issued, with additional interest at 3% from the dthe date of judgment to the date of satisfaction, in favour of the Plaintiff. Liability had been admitted by the Defendants in respect of the claim for the wrongful registration of a transfer of land to the First and Second Defendants when the Plaintiff had already entered into a Sale and Purchase Agreement with the First Defendant as vendors of the land, at Lovoni Road, Tamavua. Under the Sale and Purchase Agreement, the Plaintiff had paid the vendors $500.00 deposit, with the balance of $19,500.00 to be paid in settlement. The Plaintiff lodged a caveat for Registration, which was registered by the Registrar of Titles on 28^th November 1991, and obtained finance to buy the land and build a house on it. He discovered, in 1992, that the land had in fact been transferred to the Second Defendant.

Byrne J then made an award of damages saying (at page 5):

“I am satisfied that if the Plaintiff had been to build his house on the land he would have sold it and wand would have been likely to obtain a price of $225,000.00.”

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On 7^th March 2000, the Appellant filed its Notice of Appeal. The groundsppeal are as follows:

1.& &nnsp;&&nsp;;&nspp;&nssp;&bsp;&bsp; That the ld trial jial judge erred in law in awarding the respondent damages at $225,000.00 based on the following:

(a)  p;&nbbsp;&nsp; &nsp;  p; &nnsp;&&nsp; Ipan>It was not rebsonably foreseeable that the respondent would have owned the piece of land situated at Lovoni Road, Tamavua, Suva described in Certificate tle N035.

(b) & &nnsp;&&nbp;;&nbp; &nbp; ifen reseeable the the respondent is not entitled to the market value of the said piece of land with or without improvements to it.

;&nspp;&nssp;  p; &nbp; &nbp; The ndeno only had had a one-half share interest in the said piece of land;

(d) nbsp;&nbsp &nbs; &nnbsp; p;&nsp; &nsp; &&nbp;; The appellanellant was not the only party responsible for the respondent losing his interest i saide of and

ass=Mmal style="text-indt-indent: ent: 36.0pt; margin-top: 1; margin-bottom:ttom: 1"> 1">

2. ;&nbssp;&nnbsp;&bsp; &bsp; &nbssp; &&nsp;;&nsp; Thet tarnlearned trial judge erred w in ing the respondent interest over an eight (8) year period given the respondent’s nt’s delaydelays in bringing this action to trial; and

3.  p; &&bsp;;&bspp; &nnsp; &nbp;&nbs; The le tned trial jial judge erred in law in acceptiidencspecun by laint

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On 14^th April 2000, the Respondent’s solicitors demanded full payment of warded damages. The Appellant did not pay. The Respondent tent then filed summons for payment of the sum of $250,000. The High Court made an order for payment of the sum of $125,000.00.

On 14^th February 2001, the Respondent’s solicitors were informed by the Fiji Court of Appeal Registry, that because the Appellant had failed to file endorsement of service, and had failed to apply to fix Security for Costs, the appeal was deemed to be abandoned. The Appellant now makes this application to appeal out of time. At the time of the filing of the motion, on 12^th March 2001, the Appellants were 12 months out of time. The application is supported by the affidavit of Ajay Singh sworn on 23^rd February. That affidavit sets out the reasons for the delay: At paragraph 6, Ajay Singh states that counsel handling the file resigned from work after filing the Notice of Appeal and that the security for costs was therefore not paid. He further states that the Registrar of the Court of Appeal did not inform the parties that the appeal was deemed to be abandoned until 14^th February 2001. Ajay Singh states that the Appellant has good prospects of succeeding on appeal, and that the Respondent has already been paid the sum of $125,000.00.

The application is opposed in an affidavit sworn by Sharda Prasad dated 3^rd May 2001. In that affidavit the Respondent says that the reasons for the delay in the appeal are unacceptable, that the appeal lacks merit and that the Respondent is prejudiced by the delay.

The application was heard in Chambers on 29^th May 2001. Both counsel made comprehe and helpful submissions. The principles governing an enlarenlargement of time application are well-settled. The discretion is a broad one, and relevant matters for consideration are the length of the delay, the reasons for the delay, the prospects of success of the appeal, and the prejudice to the parties if the application were to be granted or refused.

In Latchmi & Anr. -v- Moti & Others FLR 138 the Court of Appeal, in refusing leave teal out of time, held that that the court’s discretion was unfettered. In Gatti -v- Shoosmith (1939) 3 ALL ER 916, Grrd Greene MR said, at p.919 that a mistake on the part of a legal advisor may be a sufficient cause to justify enlargement of, although this depended on the facts of individual cases.

Applying these principles, the length of the delay is inexcusable, no matter how long counsel handling the file was ill, and no matter how long the Registrar took to inform the Appellant that the appeal was deemed to be abandoned. The new Rules send a clear message to all prospective appellants - it is the appellant’s duty to file appeals, and to take all steps to push the appeal to a hearing. In this case, it appears to have been the Respondent, who did all the pushing. However, I accept the submissions of counsel for the Appellant that the appeal is not necessarily doomed to failure, and that he has at least an arguable case that the commercial loss to the Respondent, calculated on the basis of the improved value of the land, should not have been awarded to him. Furthermore, I am satisfied that the part-payment of $125,000.00 to the Respondent alleviates to some extent, the prejudice that he might have suffered if the appeal proceeded after a delay of 12 months.

The application is allowed and fresh Notice of Appeal must be filed within 7 days of perfection of this judgment.

Stay

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The Appellant also applies for a stay for the payment of the remainder of the damages. He does so, under the inherent jurisdiction of this Court.

I find myself unable to consider stay when under Rule 26(3) of the Court of Appeal Rules, the Appt must first make an application to the High Court. Where aere a rule has clearly laid out a procedure for making an application, I see no reason why the Court of Appeal, a creature of statute, should consider any inherent powers.

The application for stay is refused. It must first be heard by the High Court.

Costs are in the cause.

Nazhat Shameem

JUDGE

At Suva

Friday 8^th June 2001

Solicitors

Attorney-General’s Chambers for the Appellant

Messrs. A.K. Singh Law, for the Respondent

ABU0009D.01S