Prakash v Ali [2015] FJCA 74; ABU0014.2014 (28 May 2015)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL No. ABU 0014 of 2014
[High Court Case No. HBC 17 of 2006]

BETWEEN:

VIJAY PRAKASH
Appellant

AND:

USMAN ALI
Respondent

Coram: Chandra JA
Lecamwasam JA
Almeida Guneratne JA

Counsel: Ms. V. Lidise for the Appellant
Mr. D. S. Naidu for the Respondent

Date of Hearing: 12 May 2015
Date of Judgment: 28 May 2015

JUDGMENT

Chandra JA

[1] I agree with the reasoning and conclusions of Lecamwasam JA.

Lecamwasam JA

[2] This is an appeal filed by the Plaintiff- Appellant against the ruling of the High Court Judge at Lautoka given on the 25 September, 2013 in respect of an interlocutory order made by the same High Court on 22nd February, 2012.

[3] The facts in brief are as follows:
This is a dispute over a land of thirty one perches (approximately) in extent of which the original owner was one Paan Kumari. Plaintiff Appellant and the Defendant Respondent are respectively the son and the son in law of the original owner. The Plaintiff Appellant states that his mother, the aforesaid Paan Kumari had bequeathed a half share of the said property in his favour by way of a last will, which he has failed to produce. Whilst the defendant respondent states that the said Paan Kumari transferred the entire land of thirty one perches to him by a deed of transfer executed in 1985.

[4] The Plaintiff alleges fraud and undue influence on the part of the defendant in the execution of the aforementioned deed of transfer.

[5] In this background the Plaintiff has sought the following declarations in his original summons:

(a) declaration that the purported transfer of CT NO. 13605 is null and void and need to be set aside.

(b) declaration that the property comprised in CT No. 13605 and is held in constructive, resulting or implied trust for the use and benefit of the Plaintiff.

(c) Declaration that the plaintiff has an equitable charge on the property.

(d) An order for transfer of CT No. 13605 to Plaintiff.

(e) damages.

(f) interest.

(g) costs.

[6] The defendant states in his amended statement of defence dated 9/9/2010 that the property was rightfully transferred to him by the aforesaid original owner - Paan Kumari for valuable consideration and he further states that in any event the alleged last will was of no effect as at the date of her death she was not the registered owner of the said property.

[7] On the facts pleaded in his statement of defence he has moved that the Plaintiff's claim be dismissed as per paragraphs 15 and 16 of the counter claim and for failure to disclose a cause of action and compensation for plaintiff's occupation of the property, general damages and costs.

[8] When the matter had come up for trial on 8th September 2010 (as per page 491 – Vol 2) parties had agreed to take up preliminary issue orders sought by a Notice of Motion dated 7/9/2010 filed by the defendant.

[9] The preliminary issues are as follows:

(a) That the Plaintiff's claim be dismissed as it is statute barred as per paragraph 16 of the counter-claim;

(b) Alternatively, that the Plaintiffs claim is frivolous vexatious an abuse of the Court process; and

(c) The Plaintiff has no locus standi.

[10] By its interlocutory judgment dated 22/02/2012 the High Court dismissed the above preliminary issues subject to three unless orders viz:

(a) unless the Plaintiff deposits in the Principal Probate Registry (Suva High Court) the alleged will referred to at paragraph 5 of the Statement of Claim with a copy of this judgment attached within 30 days and submits proof of having done so, the Plaintiff's action and the Defendant's Counter Claim shall stand struck out and dismissed, and,

(b) unless the Plaintiff makes application to add as Defendants the intestate or testate heirs/beneficiaries of the deceased Paan Kumari and make application to ad a representative to represent the estate of Paan Kumari within 3 months of this judgment, the Plaintiff's action, and the Defendant's Counter Claim shall stand struck out and dismissed; and

(c) unless the Plaintiff amends his pleadings within 3 months of this judgment to set out the date he came to know of the alleged fraud and plead the manner by which the plaintiffs action is not time barred by the several provisions of the Limitation Act, the Plaintiffs action and the Defendants Counter Claim shall stand struck out and dismissed.

[11] Having moved to vary the first unless order within the time permitted on the basis that the purported Will could not be located, the plaintiff, wanted to keep alive the other two unless orders as a logical consequence flowing therefrom within the three months given by court. The Plaintiff was therefore still within the limit set by court.

[12] By that summons the Plaintiff Appellant moved the Court for the following relief:

(i) That the order in paragraph (a) of the Judgment of 22 February 2012 be varied and deleting the requirement for me to deposit the will referred to in the paragraph 5 of the Statement of Claim and enable me to apply for Letters of Administration in respect to estate of Paan Kumari;

(ii) The time for service of this Summons be abridged to 1 day.

[13] By order dated 25th September 2013 the High Court Judge dismissed the relief prayed for in the above paragraph, that is 12 (i) Summons dated 22nd March 2012 to vary the interlocutory judgment dated 22nd February 2012 and dismissed the action itself.

[14] The present appeal is against the order dated 25th September 2013 by which the Court refused to vary the interlocutory judgment of 22nd February 2012.

[15] According to the interlocutory judgment dated 22/02/2012 the Learned High Court Judge initially disallowed the preliminary issues and then proceeded to make the unless orders. By the time the unless orders were made he had already disallowed the preliminary issues. In short, preliminary issues were not alive for him to make subsequent unless orders based on them. As the unless orders were based on the preliminary issues, Court should not have dismissed the preliminary issues and then proceeded to make the unless orders. Once the edifice is destroyed nothing can be built on it.

[16] By that order the plaintiff was directed to activate unless order (a) – that is, to deposit the last Will when the plaintiff's position was that it cannot be located.

[17] But those are matters to be put to the plaintiff in cross-examination in a regular action.

[18] In the result, those averments in paragraphs 5 and 8 in the statement of claim borders on as being in the least irresponsible. Nevertheless, having come within the 30 days stipulated under unless Order (a) the application to vary the interlocutory judgment dated 22 February 2012 ought to have been allowed.

[19] Had that been done, the Plaintiff would yet have been obliged to comply with the other 2 unless orders which the Plaintiff had another 2 months to comply with (until May 22 2012). In which event, the preliminary issue orders and the agreement between the parties (vide (i) and (ii) referred to in paragraph 12) above could have still survived.

[20] Should the plaintiff be found to have failed in complying with unless orders (b) and (c) within the remaining 2 months the plaintiff's action could not have been dismissed on the basis that it is statute barred and (ii) that he did not have locus standi.

[21] To that extent, the plaintiff, at least later having seen the errors of his ways in making those irresponsible (or even misleading) averments at paragraphs 5 and 8 of those statements of claim, was seeking to lay himself bare in seeking to comply with the said unless orders (b) and (c) for which he still had 2 months to comply with.

[22] Had the Learned High Court Judge viewed the matter in that perspective he would had no basis to strike out the application to vary the said unless order and dismiss the action itself.
[23] In the result, the said time limit decreed in (b) and (c) of the unless orders has now come to pass.

[24] Thus, the door has been opened to determine the said preliminary issues referred to in paragraph 9 above, for those matters now remain revived for the determination of which a regular action ought to have been proceeded with.

[25] Then, there is an allegation of fraud as well, as regards to the transfer of CT 13605.

[26] Apart from that when did the appellant discover that the last will could not be located? He does not say that the location of it was earlier known and it was lost subsequently.

[27] All those matters require evidence in a regular action and the Plaintiff's action could not have been struck out.

[28] We also note that, the defendant's counter claim also has been struck off and dismissed by the learned High Court Judges impugned judgment.

[29] The defendant has not preferred any appeal to this court against that, for which reason we will not go into that.

[30] For the reasons stated above I am of the view that the Learned High Court Judge in his impugned order of 23 September 2013 erred in his approach in regard to the interlocutory judgment made on 22/02/2012. Therefore the instant appeal against the ruling of the High Court Judge dated 25th September 2013 succeeds. This will enable the parties to assert their substantive rights in a trial before the High Court.

Almeida Guneratne JA

[31] I agree with the reasons and conclusions of Lecamwasam JA.

Orders of the Court:

1. Appeal is allowed.
2. In all the circumstances of the case, the parties shall bear their own costs.
   

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Hon. Justice S. Chandra
JUSTICE OF APPEAL

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Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL

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Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL