Prasad v Prasad [2015] FJCA 46; ABU41.2013 (20 March 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO. ABU 41 OF 2013
(High Court HPP 8 of 2010)

BETWEEN:

VIDYA WATI PRASAD
Appellant

AND:

AGNES MAUREEN PRASAD
Respondent

Coram : Calanchini P
Counsel : Mr S Chandra for the Appellant
Mr S Parshotam with Ms O Solimailagi
for the Respondent

Date of Hearing : 4 March 2015
Date of Ruling : 20 March 2015

RULING

[1] This is an application, by the Appellant for leave to appeal under Rule 17(3) of the Court of Appeal Rules. It is in effect an application for an order for enlargement of time in which a notice of appeal may be filed and served.

[2] The application was made by summons filed on 14 August 2013. In support of the application the Appellant filed an affidavit sworn on 3 May 2013 by Vidya Wati Prasad. The application was opposed. The Respondent filed an answering affidavit sworn on 29 August 2014 by Agnes Maureen Prasad. A reply affidavit sworn on 28 October 2014 by Vidya Wati Prasad was filed on behalf of the Appellant. Prior to the hearing of the application both parties filed written submissions.

[3] As previously noted this application is made under Rule 17(3) of the Court of Appeal Rules (the Rules). Pursuant to section 20(1) Court of Appeal Act Cap 12 (the Act) the power of the Court of Appeal to determine the application may be exercised by a justice of appeal.

[4] The Appellants are seeking an enlargement of time to appeal the final judgment of the High Court delivered on 19 July 2012 whereby the Court ordered the removal of the Appellant as executrix and trustee of the estate of Andrew Prasad deceased under his will dated 3 March 1994. Probate had been granted on 5 March 1997 to the Appellant. The Appellant was ordered to deposit the original grant of probate in court. The Court also ordered the appointment of the Respondent as the sole executrix and trustee of the deceased's estate under the said will. The Court also ordered that the Appellant be restrained from dealing with the estate property on the strength of the original grant.

[5] The Appellant is the mother of the Respondent and was the wife of the deceased testator. The Respondent is the daughter of the Appellant and the deceased testator. The testator died on 28 May 1996 leaving a will dated 3 March 1995 appointing the Appellant (i.e. the testator's surviving wife) and the Respondent (i.e. the testator's and the Appellant's daughter) as joint trustees and executrices of his estate.

[6] The estate of the deceased consisted of a property located at 291 Fletcher Road Vatuwaqa. Under the will the Appellant was devised a life interest in the property and upon her death the property passed to the Respondent and one of her brothers, Avinesh Dharmendra Prasad as the ultimate beneficiaries. On the property there is a two unit residence. One unit has 3 bedrooms and the other unit has 2 bedrooms. The units are occupied by family members including another brother of the Respondent. The life tenant and the two ultimate beneficiaries reside in Canada and not on the property. Those living in the units on the property do not pay rent. The Appellant, it would appear, has purported to sell the property to the son currently residing on the property for consideration of $180,000.00. That son uses the property for his trucking business and has not paid rates for some years.

[7] Whether the application for leave should be granted involves the exercise of a discretion. The factors to be considered by a court in order to ensure that the discretion is exercised in a principled manner are similar to those discussed by the Supreme Court in NLTB –v- Ahmed Khan and Another (unreported CBV 2 of 2013, 15 March 2013 per Gates CJ). 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 or, where there has been substantial delay, nonetheless is there a ground that will probably succeed and (d) if time is enlarged, will the respondent be unfairly prejudiced? These are matters to be considered in the context of the question whether it would be just in all the circumstances to grant or refuse the application. The onus is on the applicant to show that in all the circumstances the application should be granted.

[8] In this case the final judgment of the High Court was pronounced on 19 July 2012. Pursuant to Rule 16 of the Rules the Appellant was required to file and serve the notice of appeal within 42 days from that date, that is, by 30 August 2012. The notice of appeal was filed within time on 10 August 2012 and was served on 13 August 2012, also within time. Pursuant to Rule 17(1)(a) of the Rules it was necessary for the Appellant to (i) file a copy of the notice of appeal endorsed with a certificate of the date the notice was served and (ii) apply to the Registrar to fix security for costs to prosecute the appeal, both within seven days from the date of service; i.e. no later than 20 August 2012. Both the endorsed copy of the notice of appeal and the summons to fix security for costs were filed within time on 14 August 2012.

[9] On 21 August 2012 the Registrar ordered that security for costs fixed in the sum of $1,500.00 was to be paid by the Appellant within 28 days. The Appellant was required, pursuant to Rule 17(1) (b) to deposit with the Registrar the sum of $1,500.00 no later than 18 September 2012. It would appear that the Appellant did not comply with this order and as a result, pursuant to Rule 17(2) of the Rules, the appeal was deemed abandoned with effect from 18 September 2012. However all was not lost for the Appellant. Under Rule 17(2) a fresh notice of appeal could have been filed before the expiration of 42 days to be calculated from the date the appeal was deemed to have been abandoned. This meant that the Appellant was able to file as of right a fresh notice of appeal provided that she did so no later than 30 October 2012. The Appellant failed to take advantage of the option under Rule 17(2). The result of that non-compliance was that the Appellant could not file a notice of appeal after 30 October 2012 except with the leave of the Court of Appeal under Rule 17(3) of the Rules.

[10] In this case the length of the delay can be considered in two ways. The first is by calculating the length of time between the date the appeal was deemed to have been abandoned and the date on which she filed and served the application for the enlargement of time under Rule 17(3) of the Rules. Using that method the length of the delay is the period between 18 September 2012 and 19 March 2014 being the date the summons was served on the Respondent (see para. 5(h)) of the Respondent's submissions filed on 18 December 2014. This is a delay of 18 months. Alternatively, if the starting point for calculating the delay is reduced by the 42 days given under Rule 17(2) then the delay is reduced by 6 weeks to about 16½ months. Since Rule 16 requires a notice of appeal to be filed and served within the time prescribed, it seems to me that any delay should be calculated by reference to the date of filing and serving any application for an enlargement of time. Even if the date of service is disregarded, the summon was filed 11 months from the date the appeal was deemed to have been abandoned. No matter what method is used, the delay can only be described as substantial.

[11] The explanation for this delay is set out in the affidavit in support filed on 14 August 2013. It would appear that the only explanation is that the Appellant's son, who resided rent free on the devised property at the time, despite being requested to pay the amount of $1,500.00 by 18 September 2012, failed to do so. There is no explanation offered in the affidavit for the son's failure to comply with the request of both his mother the Appellant and the Appellant's solicitors. Furthermore, there is no satisfactory explanation for the delay from the date the appeal was deemed abandoned. The explanation and or the lack thereof is wholly unsatisfactory.

[12] In view of the substantial delay and the lack of any satisfactory explanation in order for the appeal to proceed before the Court of Appeal, it is necessary to determine whether there is any ground of appeal that will probably succeed. In the event that an extension of time is granted under Rule 17(3) of the Rules, the Appellant deposed in paragraph 10 of the affidavit in support that she will rely on the grounds set out in the Notice of Appeal filed on 10 August 2012. Those grounds are:

"(1) The learned trial Judge erred in law and in fact by failing to consider that the Appellant apart from being a life interest holder in the estate property of Andrew Prasad deceased was also the appointed trustee of the estate by virtue of Probate No. 33840 and had full statutory powers of sale of the property under Section 23 of the Trustee Act Cap 65.

(2) The learned trial Judge erred in law and in fact by interpreting of Section 23(1)(a) of the Trustee Act Cap. 65 that the Trustee had no powers to sell the estate property for valuable consideration by restricting the Trustees powers of sale under Section 23(1)(4) of the Trustee Act Cap. 65.

(3) The learned trial Judge erred in law and in fact by failing to consider that the Appellant as the appointed trustee of the estate had already exercised powers of sale of the estate property for valuable consideration to Andrew Davendra Prasad.

(4) The learned trial Judge erred in law and in fact by failing to consider that the Appellant by virtue of being a trustee and a vested life interest in the estate property could not sell the capital assets of the estate and utilize the proceeds of the sale for her own benefit until she is alive.

(5) The learned trial Judge erred in law and in fact by reaching a conclusive view on the power of sale of the estate property by the Trustee when this issue was neither raised nor any relief sought by the Respondent (original Plaintiff) in the Originating Summons dated 25th day of March 2010.

(6) The trial Judge erred in law and in fact in not taking into account the relevant evidence and took into account irrelevant evidence."

[13] Grounds 1 to 4 are essentially concerned with the learned trial Judge's interpretation of the trustee's right to sell under section 23 of the Trustee Act Cap 65. Ground 5 is concerned with the fact that the relief claimed in the originating summons did not rely on or refer to a breach of section 23 of the Trustee Act. Ground 6 alleges an error in the exercise of the trial Judge's discretion by not taking into account relevant evidence and taking into account irrelevant evidence.

[14] I am satisfied that the relief seeking the removal of the Appellant as trustee sufficiently raised the issue of a breach of section 23 of the Trustee Act. I am also satisfied that on a proper construction of section 23 a trustee's power to sell trust property in section 23(1)(a) is subject to the other provisions of section 23 including section 23(4) which requires a written request from all persons beneficially entitled to an interest in possession under the Trust (by testamentary disposition in this case) before the trustee exercises the power to sell the property. As the trustee, the Appellant had not complied with section 23(4) when she purported to exercise the right of sale. As a life tenant the Appellant's interest was of an equitable nature for life, pursuant to which she was entitled to live on the property and/or enjoy the income for life. Therefore, in this case the Appellant did not have a right to sell as the holder of an equitable interest and she did not have the right to sell as a trustee since there was no written request from the beneficiaries entitled to an interest in possession. The last ground of appeal is too vague and general. Without any concise statement of the evidence upon which the Appellant relies, this ground cannot be considered further.

[15] I am not satisfied that the appeal will probably succeed. It is not necessary to consider the issue of prejudice. Furthermore it is not necessary to consider the issue of stay. The Respondent is entitled to costs fixed in the sum of $1,800.00 to be paid within 28 days from the date of this ruling.

Orders:

(1) Application for leave to appeal under Rule 17(3) of the Court of Appeal Rules is dismissed.

(2) The Appellant to pay costs to the Respondent in the sum of $1,800.00 within 28 days from the date of this Ruling.

____________________________________

Hon. Mr Justice W. D. Calanchini
President, Court of Appeal