Singh v Lok [2011] FJCA 18; Misc.14.2010 (2 March 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

Miscellaneous Action No.14 of 2010
(High Court Civil Action No.34 of 2001)

BETWEEN:

ANAND KUMAR SINGH
Appellant

AND:

CHANDAR LOK
Respondent

Date of Hearing: Thursday, 10th February 2011

Counsel: Mr R Singh for the Appellant
Mr D Gordon for the Respondent

Date of Ruling: Wednesday, 2nd March 2011

RULING

1. I heard this application for leave to appeal out of time on 10th February 2011. The question for me is whether this appeal is hopeless because it is some five or six months out of time and it has very little to no chance of success.
   
2. The judgment of Inoke J in the Court below was delivered on 20th January 2010. An appeal as of right was filed on 16th February 2010. Then $2000 security was ordered within 28 days. It was not paid on time and under Appeal Rule 17 on 1st April 2010 the appeal was deemed to be abandoned. The present application, MP/2000, is dated 15th July 2010. Court of Appeal rule 17(2) provides a second chance of an appeal as of right; but it has to be filed within 42 days. In this case the 42 days were well exceeded. Therefore leave to appeal is required.
   
3. The facts concern $15,000 in cash loaned by a businessman, friend and client to his solicitor. When, as the judge in the Court below found at paragraph 13, it was not quickly repaid, a promissory note signed by solicitor Mr Anand Kumar Singh was brought into being on 24th September 1998. The writ of summons was filed on 3rd October 2000.
   
4. I am surprised that even with the difficulties confronting the profession and the judiciary in Fiji in the last decade, that in a simple case turning on uncomplicated facts it took over nine years for judgment at first instance to be delivered. There was a pretrial conference and the only issue was whether another sum paid to one of Mr Chandar Lok's bank accounts by Mr Singh related to this loan and his promissory note. There was no issue that the $15,000 had never been paid by Mr Lok to Mr Singh.
   
5. I am happy to adopt the following statements of law from the skeleton submission of Mr Richard Gordon because they accord with my own views:
   

"LAW:

Importance of Court Rules

1. The need for and the importance of complying with rules were discussed and emphasised by the Court of Appeal in Kenneth John Hart v Air Pacific Ltd, Civil Appeal No.23 of 1983.
   
2. The Supreme Court in Venkatamma v Ferrier-Watson, Civil Appeal No.CBV0002 of 1992 at page 3 of the typed judgment warned:
   

"We now stress, however, that the Rules are there to be obeyed. In future practitioners must understand that they are on notice that non-compliance may well be fatal to an appeal: in cases not having the special combination of features present here, it is unlikely to be excused."

3. The Court of Appeal in Hon Major General Sitiveni Rabuka & Ors v Ratu Viliame Dreunamisimisi & Ors (Civil Appeal No.ABU0011 of 1997) held as follows –
   

"In all the circumstances, having regard to the history of the proceedings in the High Court and bearing in mind what the Supreme Court said in Venkatamma, we have decided that the proper course for us to follow now is to reject the application for further time to comply with rule 17 and to dismiss the appeal."

Leave to Appeal Out of Time

4. The power to extend the time for appeal is discretionary, and has to be exercised judicially, having regard to established principles (see Hart v Air Pacific Limited).
   
5. The principles governing the grant of leave to appeal out of time are set out in Avery v No.2 Public Service Appeal Board & Others [1973] 2 NZLR 86 where Richmond J said at p.91.
   

"When once an appellant allows the time for appealing to go by then his position suffers a radical change. Whereas previously he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence by the Court.

The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal."

6. The following factors are normally taken into account in deciding whether to grant an extension of time:-
   
   • (i) the length of the delay;
     
   • (ii) the reasons for the delay;
     
   • (iii) the chances of the appeal succeeding if time is extended;
     
   • (iv) prejudice to the Respondent.
     

[C M Van Stillevoldt B V v EI Carriers Inc [1983] 1 WLR 207 at 212 cited in Bahadur Ali, Muktar Ali, Niwaz Ali v Ilaitia Boila & Chirk Yam, Fiji Development Bank, Merchant Bank of Fiji, Civil Appeal No. ABU 0030 of 2002 Court of Appeal, Suva (5 September 2002)]."

6. Mr R Singh for Anand Kumar Singh puts forward only one point of importance although it is recycled again and again in the proposed Notice of Appeal. It is an argument of fact. Apparently Mr Chandar Lok in evidence was asked when the payment of principal to Mr A K Singh was made. It all happened a very long time ago; if Mr Lok gets some detail wrong it is understandable. Mr Lok said he thought the principal sum had been paid on the same date as the promissory note was signed. But it is clear from the wording of the promissory note that the debt was created two months or so previous to 24th September 1998 and was made into a promissory note when it was not repaid as agreed. It says:
   

"Consideration being the grant of further time to pay the said sum of $15,000."

7. If, as is clear, cash of $15,000 was paid to Mr Singh on terms some time before 29th September 1998, then clearly the money which the promissory note obliges Mr Singh to repay has, before 24th September 1998, been paid to him. So the date of payment of the principal was not 29th September 1998. Mr Lok made a mistake about when it was paid when he said it was paid on 29th September 1998. This inconsequential mistake about time of payment cannot be twisted into a claim that the principal was never paid. What Inoke J says about this in paragraph 13 reaches the same conclusion.
   
8. I conclude that this point is hopeless. As to explaining the delay before applying for leave there is neither transparency nor adequate explanation. On this ground the application is hopeless. In my view this litigation including this hopeless application has been an exercise in delaying payment.
   

Orders

9. My orders are:
   
   • (1) that Anand Kumar Singh's leave to appeal out of time be refused.
     
   • (2) that Anand Kumar Singh do pay Mr Chandar Lok costs of this application assessed at $1000.
     

William R. Marshall
Resident Justice of Appeal