Khairati v Khairati [2019] FJCA 14; ABU67.2018 (22 February 2019)

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

CIVIL APPEAL NO. ABU 67 OF 2018
(High Court HBC 253 of 2012 at Lautoka)

BETWEEN:

MOHAMMED SHAHEEM KHAIRATI
Appellant

AND :

MOHAMMED FAREED KHAIRATI
First Respondent

AND:

MOHAMMED HASSAN (aka Mahmud Hassan)
Second Respondent

Coram : Calanchini P

Counsel : Mr V Mishra with Ms K Maharaj for the Appellant

Ms A Swamy for the Respondents

Date of Hearing: 23 January 2019
Date of Ruling : 22 February 2019

RULING

[1] This is an application for an enlargement of time within which a notice of appeal against an interlocutory judgment of the High Court may be given. The judgment was pronounced on 6 November 2017 whereby the Court granted the Respondent’s application to have the ex parte judgment entered on 13 October 2016 set aside and for the action to proceed to trial. There was no order made for costs.

[2] The present application for an enlargement of time is made by motion dated 18 July 2018 and was supported by an affidavit affirmed on 10 July 2018 by Mohammed Shaheem Khairati. The application was opposed by the respondents on whose behalf an answering affidavit made jointly by the respondents was filed on 20 September 2018. The parties filed written submissions prior to the hearing.

[3] The application comes before me pursuant to jurisdiction given to the Court under section 13 of the Court of Appeal Act 1949 (the Act) and Rule 27 of the Court of Appeal Rules. Pursuant to section 20(1) of Act a judge of the Court of Appeal may grant an enlargement of time.

[4] The procedural background may be stated briefly. The appellant commenced proceedings in the High Court by writ filed at Lautoka. The action proceeded to trial in the absence of the respondents and their Counsel. An ex parte judgment was pronounced on 13 October 2016. In accordance with the correct procedure under Order 35 Rule 2, although out of time, the respondents applied to have the judgment set aside and the action re-heard. That application was granted in the judgment pronounced on 7 November 2017. That judgment was an interlocutory judgment.

[5] There then followed some confusion as to what should happen next. The appellant who was the successful plaintiff and who had opposed the respondents’ application for setting aside, sought to appeal the judgment of the High Court setting aside the earlier ex parte judgment. Being an interlocutory judgment the appellant was required to apply for leave to appeal within 21 days from 7 November 2017 pursuant to section 12(2) of the Act and Rule 16 of the Court of Appeal Rules. It was thus necessary for the appellant to file and serve the application for leave to appeal by 28 November 2017. However the application for leave was not filed until 12 December 2017. It was as a result some 14 days late. The application came before the High Court on 18 May 2018. The learned High Court Judge in his Ruling dated 1 June 2018 has noted the problem and pointed out that there is no proper application before the Court. The appellant should have filed and served an application for leave to appeal or an application for an enlargement of time in the High Court within 21 days of pronouncement of the interlocutory decision, i.e by 28 November 2017. Otherwise any application for an enlargement of time after 28 November 2017 could only be filed in the Court of Appeal pursuant to Rule 27 of the Rules. As a result the application for leave to appeal was refused with each side to pay their own costs. Hence the present application in this Court for an enlargement of time.

[6] The factors to be considered for an enlargement of time are (1) the length of the delay, (2) the reason for the failure to comply, (3) 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 (4) if time is enlarged will the respondent be unfairly prejudiced: NLTB –v- Khan [2013] FJSC 1; CBV 2 of 2013, 15 March 2013.

[7] Although there was a delay of about 14 days from the date of pronouncement of the interlocutory judgment to the date of filing of the defective application on 12 December 2017, there was a further delay of some 59 days from the High Court Ruling dated 1 June 2018 on the defective application and the date of filing the present application on 30 July 2018. The delay is considerable and as a result an explanation for non-compliance with the Rules is required. Counsel for the appellant conceded that although there was an attempt to provide an explanation in the supporting affidavit it was not sufficient to excuse non-compliance with the Rules.

[8] Under those circumstances it is necessary for the appellant to establish that there is at least one ground of appeal that is likely to succeed. This is because the delay can be described as substantial and the explanation is in my judgment unconvincing and unsatisfactory.

[9] The proposed grounds of appeal are set out on a document marked “A” which is annexed to the supporting affidavit. Unfortunately that document carries the wrong appeal number in the wrong year. However the parties are correctly named. The grounds of appeal against the judgment of the High Court granting the setting aside application are as follows:

“1. The Learned Judge erred in fact and/or in law in treating this matter as the setting aside of a default judgment (where evidence is not taken) rather that of a judgment delivered after a trial by Justice Supavida where the Respondents did not appear and failed to apply the principles and law which apply for setting aside a judgment after trial as set out in Shocked and Another –v- Goldschmidi and Others [1998] 1 All ER 372) and Southern Transport Limited –v- Tebara Transport Limited Suva HBC 229 of 1998S.

2. The Learned Judge erred failed to consider:
   
   1. Whether the Respondents enjoyed any real prospects of success in a retrial as there was admission in the Defence of at least part of the Defamation and a plea of justification without necessary particulars required in defamation and when compelling evidence had been adduced of whether the tractor alleged to have been misappropriated had been acquired from by the Appellant which had not in any way been challenged or even denied by the Respondents.
      
   2. the authenticity and probative value of the reason(s) why the Respondents why the Respondents did not attend at the trial in particular when:
      
      1. the Respondents’ lawyers had withdrawn for lack of instructions from them.
      2. The Respondents had not informed their lawyers of any change of address (or e-mail) where they were to be contacted and when there was evidence adduced by the Appellant that the address of the Second Respondent had not changed as alleged.
      3. The person whose email was alleged to be the means of communication between the Respondents and their lawyer had not given an affidavit in support or confirmed she had not accessed her e-mails for several months or why she had not or any evidence proving the same.
         
3. The Learned Judge erred in fact and/or in law in setting aside the judgment of Justice Supavida entered on the 13^th day of October 2016 unconditionally when:-
   
   1. The matter had been set for trial on the 6^th, 7^th and 8^th days of October, 2016 several months earlier and had been accepted as suitable by both Counsel.
      
   2. The responsibility of service of summons for withdrawal and service of order for withdrawal on the Respondents was a matter between the Respondents and their lawyers at which normally the Appellant is not even normally served so the Respondent’s interest is not damaged.
      
   100. The application to set aside the judgment had not been made within seven days as required by Order 35 Rule 2.
        
   4. No application had been made for any extension of time beyond seven days mentioned in Order 35 Rule 2 had been prayed for.
      
4. The Learned Judge erred in fact and/or in law in holding that that the judgment delivered by Justice Supavida was irregular because the summons for withdrawal as Solicitors and/or order made thereon had not been served on the Respondents and failed to take into account that the matter had been set down for hearing for several months and that the Respondents also had a duty to keep in touch with the Solicitors and instruct them.
   
5. In the alternative if the Court holds the judgment has been properly set aside the Learned Judge erred in fact and/or in law in not awarding thrown away costs of the Trial held and in not awarding security for costs.”
   

[10] However before assessing whether there is a ground of appeal that is likely to succeed, there is an issue that is of concern to the Court. The appellant makes reference in ground 2(b)(i) to the fact that the “respondents’ lawyers had withdrawn for lack of instructions from them.”

[11] Counsel for the appellant addressed this Court on the procedure that had resulted in the High Court granting the order on 18 May 2016 that the law firm of Messrs. Patel and Sharma of Nadi cease to act for the respondents (the defendants in the Court below) in the action. As a result of that order the action ultimately proceeded to trial in the absence of the respondents.

[12] The procedure for an application for an order declaring that the practitioners have ceased to act for a party is set out in Order 67 Rule 6 of the High Court Rules. Rule 6(2) provides that the application must be made by summons and that the summons must, unless the Court otherwise directs, be served on the party for whom the barrister and solicitor acted. There is therefore a condition precedent, as it were, that must be satisfied before the Court can consider the merits of the application which would no doubt be determined by a consideration of the supporting affidavit which is also required by Rule 6(2).

[13] The order was made on 18 May 2016 and filed for sealing on 20 May 2016. It is apparent that there was no appearance by the respondents at the hearing of the application to withdraw. The preamble refers to the summons and to the supporting affidavit. There is no reference to an affidavit of service or attempted service of the summons and the supporting affidavit. There is no reference to an order or direction by the Court to excuse service of the summons on the respondents.

[14] Having carefully perused the High Court file, I am satisfied on the material that was before the Court that the respondents were not aware of the application for a declaration of ceasing to act. As a result the granting of the declaration was made in non-compliance with Order 67 Rule 6(2) of the Rules. On the same day the learned High Court Judge listed the matter for mention and directed the Registry to send notice of the adjourned date to the respondents. A hard copy of an email dated 20 May 2016 purports to inform the respondents that the next mention date is 1 June 2018. However there is no material to suggest that at that time the respondents were aware that their solicitors had been granted a declaration of ceasing to act. Although the same email requested the respondents to acknowledge receipt of the notification of the next mention date no such acknowledgement appears to have been received by the Registry. It would appear then that no further communication with the respondents occurred and the action proceeded as an ex parte hearing. Apparently the respondents only became aware of all that had transpired when they were served by the appellant with copies of the final orders following the ex parte hearing.

[15] Although these matters are not specifically discussed by the learned Judge who subsequently set aside the ex parte judgment and ordered a re-hearing, they provide a very sound basis for concluding that the appeal against that Ruling is not likely to succeed. Furthermore, given the Court’s long standing view that leave should not readily be given to appeal an interlocutory Ruling or Judgment unless it is plainly wrong and that it would be unjust to allow the decision to stand, I have concluded that an enlargement of time should not be granted in this case. There should be no orders as to costs.

Orders:

1. Application for enlargement of time is refused.
2. No orders as to costs.
   

   ____________________________________
   Hon Mr Justice W. D. Calanchini
   PRESIDENT, COURT OF APPEAL