Tradewinds Marine Ltd v Motibhai & Co Ltd [2022] FJCA 5; ABU007.2021 (2 March 2022)

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

CIVIL APPEAL NO. ABU 007 of 2021
(High Court Civil Appeal: HBC 236 of 2014)

BETWEEN:

TRADEWINDS MARINE LIMITED
Appellant

AND:

1.MOTIBHAI & COMPANY LIMITED

2.TOKOMARU LIMITED

3.ANZ BANKING GROUP LIMTED

4.THE DIRECTOR OF LANDS

5.THE REGISTRAR OF TITLES

6.THE ATTORNEY-GENERAL

Respondents

Coram: Almeida Guneratne, JA

Counsel: Mr A.K. Narayan for the Appellant
Mr S. Fatiaki

Ms S. Lodhia

Mr V. Singh for the Respondents

Date of Hearing: 31 January, 2022
Date of Order : 2 March, 2022

ORDER

Brief Recount of the background to the present matter

[1] The Appellant filed a summons for “a stay” pending appeal. The 1^st Respondent opposed the said summons. The respective parties having filed affidavits and submissions and the matter having been taken for hearing, I made the following order on 31^st December, 2021.

“1. The “Stay Order” sought by the Appellant in his Summons is granted.

2. However, Order 1 is subject to the Appellant paying sum of $2,000.00 to the 1^st Respondent within 21 days of this Ruling.
   
3. Upon the expiry of the said period of 21 days and if the Appellant is found to have failed to comply with Order 2 above, the (Hon.) Registrar is directed to enter a “Notice of Discontinuance” in re: the application for “the stay” in question.
   
4. In any event, the Hon. Registrar is directed further to list this matter for mention on the next call over date to fix the pending appeal for full Court hearings in the May session.”
   

[2] On that date when I delivered the said Order (Ruling) the Appellant was not present in Court.

[3] Being mindful of the 21 days time limit I had imposed in the said Order, on that very day I directed the Registrar to notice the Appellant (Solicitors) of the said Order.

[4] While notice of the date of delivery of the Order of 31^st December, 2021 had gone to a Senior Legal Officer attached to the Appellant’s Solicitors firm, the directive given by me when delivering the said Order to the Registrar on the said date had not been carried out.

[5] Subsequently, on the basis of correspondence between the Appellant and the Registry (showing I must say at this point the Appellant’s intent to comply with the Order of 31^st December, 2021), the 1^st Respondent taking exception thereto is when I had the matter called in the form of an inquiry. The 1^st Respondent moved to file submissions opposing the Appellant’s position in seeking extension of time to comply with the Ruling (Order) of 31^st December, 2021, Mr Narayan (for the Appellant) submitted that he was not filing any written submissions and that he would be relying on what is appearing on the Record.

The Impact of Correspondence between the Registry and a Party

[6] On the legal impact of correspondence between the Registry and a party litigant to which the 1^st Respondent took exception to, I found the answer in the Practice Direction No.5 of 2018.

[7] That is the background in which it became incumbent on me to make an appropriate Order in this matter.

Factors that impacted on the present matter

[8] I will address them seriatim as follows.

Did the Appellant receive notice of the Ruling made by Court on 31^st December, 2021?

[9] A.K. Lawyers had carriage of the Appellant’s case. Notice of the said Ruling had not gone to them. It had gone to the email address of a Senior Legal Executive said to be attached to A.K. Lawyers. I found from the material presently appearing on record that, there had been a problem about the said email address. Then again, the efforts of the Registry to get in touch with the said Senior Legal Executive had proved to be in vain for lack of communication. Perhaps, had the Registry noticed A.K. Lawyers and there had been no appearance on the date the Ruling was delivered the complexion of the matter might have changed.

Did the Registry give notice of the Ruling when it was delivered to the Appellant’s lawyers?

[10] As the Record reveals (and indeed this is conceded by the 1^st Respondent in their written submissions), that had not been done.

[11] If so, could it be said that, the Appellant (and/or its lawyers) had failed to comply with the order to pay the costs ordered within the time limit decreed in the said Ruling?

[12] I do not think so and in saying so I took into consideration the following principles of law.

The Principle “Actus Curiae Neminem Gravabit” (Act of Court Shall prejudice no man – Broom’s Legal Maxims 7^th ed.p.97.

[13] Perhaps, it could be argued that the act of a Court Registry is not an act of the Court to invoke that principle.

[14] However, though the Registry is not a Court in the strict sense, in the present situation as recounted by me earlier it has affected the rights of the Appellant.

[15] Even an administrative act or omission if it has resulted in affecting the rights of a party, such party must not be left without a remedy. The test is, a Court should not look at the person who does an act or omits to act but the effect it has had on a party.

[16] That was the judicial stride made in rejecting the doctrine of classification of functions ever since the seminal House of Lords decision in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 interpreting the earlier House of Lords decision in R v Electricity Commissioners, ex Parte _ _ _ [1924] 1 K.B.171.

[17] Though arising in the context of judicial review I do not hesitate to apply that principle or proposition as being of universal application which I apply in the instant case.

The Adjunct principle of “Nune Pro Tune” – Proceeding and Order made “now for then”

[18] Consequently, I hold the view that this Court was not functus when it made that initial ruling and make order that, an order/proceeding may be taken “now for then.”

From the 1^st Respondent’s Perspective should the matter end there?

[19] In somewhat an accommodating and/or condescending approach the 1^st Respondent has argued that, should this Court hold with the Appellant that additional costs payment must be ordered.

[20] I agree on that with the submissions of the learned Counsel for the 1^st Respondent.

The factors that weighed with me in that regard

[21] Indeed, learned Counsel for the Appellant has not made a “formal application” as requisite in law (supported by affidavits on the factual content).

[22] As learned Counsel for the 1^st Respondent contended, “exchange of correspondence” cannot be regarded as a “proper application requisite in law.”

[23] Mr Narayan’s counter to that was that given the fact as to what is shown on the Record speaks for itself suggesting therefore why there was no need to make a formal application which would have inevitably lead to protracted litigation and consuming the time of Court.

[24] While I saw merit in that counter argument, nevertheless the 1^st Respondent moved to file written submissions in fighting for his client’s cause and appearing in Court towards that cause.

[25] That is a factor that warranted due consideration.

Final Determination

[26] On a balance taking into consideration the circumstances, I have recounted above I proceed to make my Orders as follows.

Orders

1. Order 1 of the initial Ruling dated 31.12.2021 in granting “a Stay Order” is affirmed.
   
2. Order 2 of that initial Ruling to stand modified to read as, the Appellant shall pay costs to the 1^st Respondent in a sum of FJD$2,500.00 within 21 days of notice of this Order.
   
3. Order 3 of the initial Ruling will stand in the modified terms as aforesaid.
   
4. Order 4 of the initial Ruling will stand subject to the above.
   

___________________________________________
Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL