Kumar v Wati [2014] FJCA 139; ABU11.2014 (1 September 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
CIVIL APPEAL NO: ABU 11 of 2014
(High Court HBC 45 of 2009)

BETWEEN:

VIJAY KUMAR AND FIJI DEVELOPMENT BANK
Appellants

AND:

BHAN WATI
Respondent

Coram: Calanchini P

Counsel: Ms S Devan for the Appellants.
Mr A Ram for the Respondent.

Date of Hearing: 18 August 2014
Date of Judgment: 1 September 2014

JUDGMENT

[1] This is an application by the First Appellant for an order that the time within which a notice of appeal may be filed and served be enlarged. The jurisdiction to make such an order is given to the Court under section 13 of the Court of Appeal Act Cap 12 (the Act) and Rule 27 of the Court of Appeal Rules (the Rules). Pursuant to section 20(1) of the Act, the power of the Court of Appeal to make such an order may be exercised by a single judge of the Court.

[2] The application was made by summons filed on 28 February 2014 and was supported by an affidavit sworn on 28 February 2014 by Neel Shivam. The application was opposed. The Respondent filed an answering affidavit sworn on 24 April 2014 by Salendra Kumar. The First Appellant (the Appellant) filed a reply affidavit sworn on 15 May 2014 by Neel Shivam.

[3] The dispute is between the Appellant as registered proprietor of Lot 10 on DP 7889 being the land comprised in CT 34557 and the Respondent who occupies the said land. The Second Appellant holds a mortgage over Lot 10 pursuant to a mortgage agreement between it and the First Appellant. Lot 10 was originally part of the land comprised in CT 6864 before the subdivision. The area of freehold land in CT 6864 was about 68 acres. It was owned by the Appellant's father who was the Respondent's father in law. Before the father died he had allowed the Respondent's husband (Shiu Prasad) (i.e. another of his sons) to occupy a portion of that land. When the father died he devised by his will the land in CT 6864 to the First Appellant who subsequently became the registered proprietor of all the land comprised in CT 6864. There was an agreement between the Appellant and Shiu Prasad (i.e. one of his brothers) that a seven acre lot would be allocated to him when the subdivision was completed and registered. Upon subdivision ten titles were issued in the name of the Appellant. The Respondent's husband had died before subdivision was completed and the agreed seven acres was transferred to the Respondent in the form of Lot 4 comprised in CT 34551 which was subsequently registered in her name.

[4] The dispute over Lot 10 arose as a result of a claim by the Respondent that she and the Appellant had executed two transfers which had been witnessed being transfers for Lot 4 and Lot 10. It was alleged that the Appellant lodged only the transfer for Lot 4 and retained/obtained a title for Lot 10 in his own name. The transfer document in relation to Lot 10 was undated and never registered.

[5] As a side issue there was evidence that the Respondent and another brother (Hari Prasad) had entered into an agreement whereby that brother agreed to transfer a part of his lot (being Lot 9) to the Respondent who was occupying Lot 10 in consideration for her paying the balance of his share of the survey costs. However at all material times the Appellant was the registered owner of Lot 10.

[6] The First Appellant, having withdrawn eviction proceedings against the Respondent, subsequently mortgaged Lot 10 CT 34557 to the Second Appellant. The Respondent brought an action in the High Court alleging fraud on the part of the First Appellant and fraud and negligence on the part of the Second Appellant.

[7] The learned High Court Judge found in favour of the Respondent in her claim against the First Appellant and dismissed her claim against the Second Appellant. The basis of his finding in favour of the Respondent was that she had established that there was an equitable trust created in her favour over Lot 10 comprised in CT 34557.

[8] In determining an application for an enlargement of time the Court has a discretion which must be exercised judicially. In McCaig v Manu (unreported CBV 2 of 2012; 27 August 2012) the President of the Supreme Court (Gates CJ) in delivering a ruling in a similar application set out the five factors that are usually considered to ensure that the judicial discretion is exercised in a principled manner. They are (a) the length of the delay; (b) the reason for the delay; (c) whether there is a ground of merit justifying the appellate court's consideration, (d) where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed and (e) if time is enlarged, will the respondent be unfairly prejudiced?

[9] In the present case the length of the delay is determined by calculating the length of time between the last day on which the Appellant was required to have filed and served his notice of appeal and the date on which he filed and served his application for an enlargement of time.

[10] It is against the judgment of the High Court dated 5 July 2013 that the Appellant now seek leave to appeal out of time. It would appear that the Appellant filed his notice of appeal on 15 August 2013 and subsequently service was effected on the Respondent on 27 August 2013.

[11] Pursuant to Rule 16 of the Rules, the Appellant was required to file and serve the notice of appeal within 42 days or 6 weeks from the date on which the judgment in the High Court was pronounced. The effect of the Rule is that the Appellant was required to file and serve the notice of appeal on the Respondent by 16 August 2013. Although the notice of appeal was filed within time it was served on the Respondent after the 42 days allowed under Rule 16 had expired.

[12] As a result there was no appeal properly before the Court. Although the Appellant proceeded to attempt to comply with Rule 17 thereafter, that was not the correct course of action. Rule 17 has no application where an appellant has not complied with Rule 16. There is no appeal properly before the Court to which Rule 17 can have any application. The only option is for an appellant to make an application for an enlargement of the time prescribed by Rule 16.

[13] The present application was filed on 28 February 2014 and served on the practitioners acting for the Respondent on 18 March 2014. Since Rule 16 requires both filing and serving of the notice of appeal to be effected within the prescribed time limit of 42 days there are reasonable grounds for inferring that the length of the delay should take into account the time when the application for an enlargement of time was not only filed but also served on the respondent. The length of the delay is therefore the period from 16 August 2013 to 18 March 2014, a period of about 8 months.

[14] The explanation for the delay is set out in the affidavit of Neel Shivam sworn on 28 February 2014 in paragraphs 7 to 25. The explanation offered in that affidavit is related to the inadvertence of an employee solicitor in the office of the Appellant's legal practitioner.

[15] It may also be inferred that there was a lack of proper control, monitoring or supervision of the employee solicitor by her supervising partner. The contents of paragraph 23 of the affidavit reflect a further misunderstanding as to the effect of non-compliance with Rule 16 and the operation of Rule 17 of the Rules. In the event that Rule 16 is not complied with (i.e. the notice of appeal has not been filed and served within the prescribed time) then the appellant must apply for an enlargement of time in which to file and serve a notice. Only when Rule 16 has been complied with or when the notice of appeal has been filed and served within the enlarged time is Rule 17 activated. In the event that there is non-compliance with Rule 17 then there is an opportunity to file and serve a fresh notice of appeal within 42 days.

[16] In my judgment the explanation that has been put forward on oath does not amount to a satisfactory or reasonable explanation for the delay of almost 8 months. The importance of an honest and frank explanation is clearly demonstrated by the decision of the Supreme Court in McCaig v Manu (Full Court unreported (supra) 24 April 2013). I also note the comments of the Court of Appeal in Vimal Construction and Joinery Works Ltd –v- Vinod Patel and Company Ltd (unreported ABU 93 of 2006; 15 April 2008) at paragraph 15:

"in 2008 litigants should not assume that leave will be given to bring or maintain appeals or other applications where those appeals or applications are out of time unless there are clear and cogent reasons for doing so. A contention as to the incompetence of legal advisers will rarely be sufficient and, where it is, evidence in the nature of flagrant or serious incompetence (R v Birks [1990] NSWLR 677) is required."

[17] In view of the substantial delay and the unsatisfactory explanation for that delay, it is necessary to determine whether there is a ground of appeal that will probably succeed. In the supporting affidavit an exhibited draft notice of appeal set out 14 grounds of appeal against the decision of the learned High Court Judge. There is a certain amount of repetition in those grounds of appeal and consequently it is only necessary to paraphrase what appear to be the principal issues raised by the Appellant. In doing so reference will be made to the Appellant's submissions as it would appear that the grounds of appeal have been grouped into subject matter.

[18] However, it is important to recall that a judge of the Court does not decide the appeal. By way of an overview of the material that is presently before me, the task is to determine whether in this case the Appellant has raised a ground of appeal that is likely to succeed. It may well be that the Court of Appeal at the conclusion of the hearing of the appeal and after a careful consideration of the record, the written submissions filed prior to the appeal hearing and the oral submissions presented by counsel at the hearing concludes that the learned trial Judge was not wrong or that there was no injustice in the decision.

[19] In the Appellant's written submissions, grounds 1, 9 and 10 are grouped together. Those grounds raise issues relating to the pleadings and in particular the Respondent's Statement of Claim. Ground 2 is discussed separately and relates to the locus of the Respondent to enforce an agreement made on behalf of her husband Shiu Prasad (the Appellant's brother) with another brother Hari Prasad.

[20] Grounds 3 to 7 raise a number of issues concerning the claim by the Respondent that she had acquired an equitable interest in Lot 10. These grounds refer to the effect of the father's will on any interest acquired by the Respondent's husband prior to his death. There is reference to a Deed dated 3 June 1985 between the Respondent's husband and the Appellant. The grounds also raise the issue of indefeasibility of title upon registration and the effect of fraud, if established, on that doctrine. Finally the grounds also raise an issue concerning the effect of two undated transfers and section 39 of the Land Transfer Act Cap 131. Ground 8 raises issues that are similar to the issues already discussed. The remaining grounds of appeal are in the main repetitive.

[21] As for the first grouping, it is submitted that the learned trial Judge erred when at page 19 of the unreported decision he stated that "(T)he Plaintiff's claim is founded upon the principles of equitable trust, constructive trust, proprietary estoppel and equitable estoppel. Then, on page 27 the learned Judge concluded that the (Respondent) had established that an equitable trust was created in her favour over lot 10 comprised in CT 34 557.

[22] The Appellant submits that the only cause of action pleaded by the Respondent in her statement of claim was a claim based on fraud on the part of both Appellants. Although the record is not yet available, the learned High Court Judge has outlined the Respondent's claim in some detail and it would appear that the Respondent has expressly pleaded fraud. Under the High Court Rules (Order 18) the Respondent was required to plead particulars of fraud if the relief that she claimed relied on fraud. Whether the relief claimed was capable of being awarded in respect of other causes of action recognised by the law was dependent only upon whether the Respondent had pleaded in her Statement of Claim facts that, if proved, established any of those causes of action.

[23] The facts pleaded by the Respondent in her statement of claim certainly indicated that the relief sought was based on equitable principles. The Respondent had pleaded that the Appellant was the registered owner of the lot in question. The Respondent also pleaded the existence of two executed transfers, one for lot 4 and one for lot 10. It was also pleaded that the Appellant had lodged for registration only the transfer for lot 4. There were other facts pleaded which in my judgment taken together raise the issue of an equitable claim and as a result this ground will probably not succeed.

[24] The grounds of appeal that relate to the effect of the agreement between the Respondent and the Appellant's other brother (Hari), that relate to sections 39 to 41 of the Land Transfer Act Cap 131 and that relate to Indemnity, Guarantee and Bailment Act Cap 232 when considered together with the issue of a valid equitable interest raise issues relating to the application of the law. There were no pre-trial conference minutes and as a result no statement of agreed facts. However the findings of fact based to a large extent on the documentary evidence, are unlikely to be overturned. In view of the above, I have concluded that the grounds of appeal do raise legal issues that warrant the consideration of the Court of Appeal.

[25] The issue of prejudice to the Respondent does not arise as she remains in occupation of Lot 10 and it would appear that the mortgage agreement continues in effect.

[26] Therefore I am prepared to grant an enlargement of time to enable the Appellant to file and serve a notice of appeal out of time. The leave granted is on condition that the Appellant pay to the Respondent the sum of $1800.00 being the costs of the application summarily assessed within 21 days.

The orders of the Court are:

(1) The First Appellant is to file and serve a notice of appeal within 28 days from the date of this judgment.

(2) The First Appellant is to pay to the Respondent costs of $1800.00 within 21 days from the date of this judgment in default of which order 1 (above) is vacated.

(3) The appeal is to proceed in accordance with Rules 17 and 18 of the Court of Appeal Rules when and if there is compliance with Orders 1 and 2.

Hon. Mr Justice Calanchini
President, Court of Appeal