Nair v Prakash [2013] FJCA 147; Misc. Action 10.2011 (30 October 2013)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

MISCELLANEOUS ACTION NO. 10 of 2011
(High Court Civil Action No. HBC 298 of 2010 )

BETWEEN:

SHAKUNTALA DEVI NAIR
Appellant

AND:

ALLAN RAJENDRA PRAKASH
ROY ROHITENDRA PRAKASH
Respondents

Coram : Chandra JA

Counsel : Appellant in person
Mr J Savou for the Respondent

Date of Hearing : 20 June 2013
Date of Judgment : 30 October 2013

RULING

1. This is an application for leave to appeal out of time filed on 1st March 2011 against an order of the High Court made on the 9th of September 2010.
   
2. The Respondent had commenced proceedings in the High Court on 5th September 2008 seeking to evict her from the premises where she was a monthly tenant of Flat 6 at No.12, High Street, Suva.
   
3. The Appellant had opposed the application of the Respondent and she had filed an affidavit in opposition in December 2009.
   
4. When the case had been taken up for hearing on 31st August 2010 the Appellant had been absent and unrepresented and upon reading the summons of the Respondent together with the affidavit in support and on hearing the submissions of Counsel for the Respondent the court had ordered that the Appellant give up immediate vacant possession of Flat 6, 12 High Street, Suva.
   
5. On 20th September 2010 the Court Order had been executed through a registered bailiff and a full inventory of the items in the premises had been taken and the items had been stored under lock and key at the premises warehouse within the same building awaiting the Appellant to come and claim them.
   
6. The Appellant by notice of appeal dated 1st March 2011 appealed against the said order of the High Court.
   
7. On 3rd December 2012 when this application was taken up the Appellant's Counsel sought time to get further instructions from her client and time was granted till 25th January 2013.
   
8. On 25th January 2013 Counsel for the Appellant stated that she had no instructions from her client and she moved to withdraw from the case. The Appellant was present in Court and she had sent a letter to the Registry stating that she had taken a vow of silence till end of February 2013 and had requested that the case be called in March 2013. Court granted the request and the case was to be mentioned on 25th March 2013.
   
9. On 25th March 2013 The Appellant appearing in person sought time to file written submissions and time was granted till 30th April 2013 and the Respondent to reply if necessary within two weeks from 30th April 2013 and the hearing was fixed for 20th June 2013.
   
10. On 20th June 2013 the Appellant stated that she was relying on the affidavit filed by her and Counsel for the Respondent stated that all the issues raised have been addressed by the Respondent and stated that the application for leave to appeal out of time was misconceived.
    
11. The decision of the High Court was on the 31st of August 2010 and an appeal had to be within six weeks in terms of Rule 16 of the Court of Appeal Rules.
    
12. The Appellant had lodged her application for leave to appeal out of time in the Court of Appeal on 1st March 2011 after the decision of the High Court and set out the following grounds:
    
    • (a) The summons of the Plaintiff/Respondent filed on 5th September 2008 together with affidavit in support (plaintiff if the original action) was earlier dismissed and or struck off by the High Court.
      
    • (b) The Appellant had informed the court of her absence for a year as of February 2010. The reason for her absence was due to studies she had taken up in India.
      
    • (c) The High Court had earlier struck off similar actions lodged by the Respondents.
      
    • (d) There is no evidence shown that both respondents authorized the eviction application against the Appellant.
      
    • (e) That the Respondents at the time of the filing of the third attempt to evict, had no legal claim of right to the relevant property.
      
    • (f) That the Appellant had paid rent in advance, for the relevant property up until February 2011 and that these rent monies were paid into an account of Mr. Ghurahu Prasad now deceased.
      
    • (g) That these orders were secured against the Appellant in her absence despite her informing the Court in writing of her absence from Fiji.
      
    • (h) That similar applications to the High Court were previously either struck off or dismissed because of the lack of proper legal right of the Respondents.
      
    • (i) That at time of the filing of the third application to evict the Appellant, there was still no evidence to show that the Respondent had a claim of legal right over the said property.
      
    • (j) That the learned Judge allowed such a decision in the Appellant's absence.
      
13. The Appellant has stated in her affidavit in support that she had been away in India when the decision was given by the High Court and that she had arrived in Fiji only in February 2011 and when she went to her apartment she could not get in as she had been locked out and she did not have access to her belongings.
    
14. The Appellant had annexed a copy of a letter dated 9th February 2010 by which she had informed the Chief Registrar of the High Court referring to the 9th of April 2010 as the date on which the case was to be heard, that she would not be in the country for a duration of one year and not to take up the case in her absence. On a perusal of the High Court Record, the original of this letter was found and had been received on 10 February 2010. The letter stated that it was being copied to Allan Rajendra Prakash.
    
15. The Appellant has also stated in her affidavit that the Respondents had on two previous occasions attempted to evict her but had failed as they had no legal claim to the property, that she had prior to her leaving Fiji paid the rent in advance up to February 2011 into the bank account of Ghurahu Prasad, the father of the Respondents.
    
16. The Appellant had also annexed a copy of her E ticket regarding her visit to India and copies of entries in her Passport showing her arrival in Mumbai on 11th February 2010 and departure from Mumbai on 5th February 2011.
    
17. The application of the Appellant has been made nearly five months after the notice was due. The granting of such an application is a matter within the discretion of the Court. It was stated by Justice Richmond in Avery –v- No.2 Public Service Appeal Board and Others [1973] 2 NZ 86 at p.91 that:
    

"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 required that he be given an opportunity to attack the judgment from which he wishes to appeal."

In Rasaku –v- State [2013] FJSC 4; CAV0009,0013.2009(24 April 2013) the Supreme Court stated in dealing with the exercise of the discretion of an appellate court as follows:

"[18] The enlargement of time for filing a belated application for leave to appeal is not automatic but involves the exercise of the discretion of Court for the specific purpose of excusing a litigant for his non-compliance with a rule of court that has fixed a specific period for lodging his application. As the Judicial Committee of the Privy Council emphasized in Ratnam –v- Cumarasamy [1964] 2 All ER 933 at 935:

'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'

18. In considering such applications Justice Calanchini Acting President (as he then was) in Palu –v- Australia and New Zealand Bank [2013] FJCA 11; Miscellaneous 19.2011 (8 February) 2013 stated:
    

"[11] The factors which are normally taken into account in deciding whether to grant an extension of time were conveniently discussed by Byrne JA in Mokosoi Products Fiji Ltd –v- Pure Fiji Export Limited (unreported ABU 17/2008 delivered 7 September 2009). At page 10 of the unreported decision Byrne JA stated:

"In Bahadur Ali and Ors –v- Ilaitia Boila and Chirk Yam and Ors. Civil Appeal No.ABU0030 of 2002 Reddy, P then President of Court of Appeal said at p7 –

'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, Civil Appeal No.23 of 1983). The onus is on the Appellants to satisfy the Court, that in the circumstances, justice of the case requires that they be given the opportunity to attack the Order .... And the judgment .....The following factors are normally taken into account in deciding whether to grant an extension of time –

1. The length of delay;
2. reasons for delay;
3. the Chance of the appeal succeeding if time is extended; and
4. prejudice to the Respondent."
   
19. Length of delay and Reasons for the delay

The delay in filing the application in the present case is about four and half months and the Appellant in her affidavit stated that she was out of the country when the case had been heard and the decision given. Prior to her leaving the country she had informed the Registry of the Court that she would be out of the country and not to take up her case during her absence. The said letter was in the Court Record at the time when the case was taken up for hearing on 31st August 2010 but it had not been brought to the notice of the learned High Court Judge nor to the Respondent on that day or on any day prior to that. The failure to bring the said request of the Appellant in the said letter to the notice of the learned trial Judge on that day was a lapse on the part of the Court Registry.

20. The Appellant had returned to the country on the 11th of February 2010 and had found herself locked out of her premises and she had thereafter taken steps to have her appeal filed out of time on the 1st of March 2011. The Appellant had taken more than two weeks to file her notice of appeal, the reasons adduced by her in her affidavit being that she had lost all her belongings and documents as a result of being ejected from her premises and her having to check the Court record and to take steps to file her appeal after obtaining advice from her Lawyers. The delay would be excusable specially when she had faced the predicament of being locked out of her residence.
    
21. Chance of the Appeal succeeding if the time is extended
    

The Respondent had given notice of eviction to the Appellant which she had acknowledged. On two previous occasions the Respondents had taken action to have the Appellant evicted but had failed. On the third occasion they had succeeded as the Appellant had been absent and unrepresented on the date of the hearing. The learned Judge had been satisfied with the evidence and documents presented by the Respondents at the trial. The case for the Respondents was an application under Section 169 of the Land Transfer Act to evict the Appellant and in such a procedure the burden was on the Appellant to satisfy court that she has a right to possession of the land in dispute. The Supreme Court in Morris Hedstrom Limited –v- Liaquat Ali No.153/87 described the scope of the said provision and stated that:

"Under Section 172 the person summoned may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced."

In terms of what was set out in the said case by the Supreme Court even if the person summoned can establish an arguable defence the application would be dismissed.

22. The Appellant in her affidavit had challenged the title of the Respondents to the premises where she was a tenant. The judgment of the High Court indicates that the Respondents had produced the Title Certificate and established their title which was accepted by the learned High Court Judge. The Appellant had challenged the title on previous occasions too. Since she had acknowledged receipt of the quit notice but had responded to same stating that she would be contesting the action, it was likely that she would have challenged the title of the Respondent and taken up other matters as the burden was on her to show cause as to why she should not be ejected. As a result of her absence she had not had the opportunity to contest the action of the Respondent and there was no opportunity to determine the strength of her defences.
    
23. Even if the case presented by the Respondents was strong, the Court would have been able to consider the defences of the Appellant that would have been presented at the trial in challenging the Respondents' case, if she was present. Since she did not get an opportunity to present her case it is not possible to ascertain as to whether her appeal would have a chance of succeeding and the ends of justice would be met if she was given an opportunity to present her case.
24. Prejudice caused to the Respondent
    

In Avery's case (Supra), Justice Richmond stated at page 92:

"The rules do not provide that the Court may grant leave if satisfied that no material prejudice has been caused by the failure to appeal in time. Everything is left to the discretion of the Court on the wide basis that leave may be granted in such cases as the justice of the case may require. In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant on the one hand for leave to be granted together with the effect which the granting of leave would have on other persons involved."

25. More than two years have passed since the Respondent had obtained vacant possession of the premises and the Respondents are enjoying the fruits of the judgment they obtained in their favour. Therefore there is no prejudice caused to them. But the prejudice caused to the Appellant also has to be considered in view of the fact that she had notified the Court Registry prior to the hearing of the case that she would be out of the country and the failure to bring that to the notice of the learned trial Judge was a lapse on the part of the Registry of the Court. In these circumstances the prejudice caused to the Appellant would appear to outweigh any prejudice caused to the Respondents who are enjoying the fruits of the judgment. As stated in Avery's Case the whole history of the matter, the conduct of the parties, the nature of the litigation and the need of the applicant are matters that have to be considered in dealing with the application of the Appellant. In the present case the fact that there had been two unsuccessful attempts by the Respondent to evict the Appellant, the case being taken up for hearing in the absence of the Appellant, giving a satisfactory explanation for her absence of which there was evidence in the case record are matters weighing in favour of the Appellant. Taking all these circumstances into account leave to appeal out of time is granted to the Appellant.
    
26. The application of the Appellant for leave to appeal out of time is allowed.
    
27. There shall be no costs.
    

Suresh Chandra
Resident Justice of Appeal