Fuel Supplies Pacific Pte Ltd v Prasad [2023] FJCA 101; ABU09.2022 (12 June 2023)

THE COURT OF APPEAL, FIJI
[ON APPEAL FROM THE HIGH COURT]

Civil Appeal No. ABU 09 of 2022
(Suva High Court No. HBC 19 of 2016)

BETWEEN:

FUEL SUPPLIES PACIFIC PTE LIMITE
Appellant

AND:

1. RAJNESH PRASAD & RANJEETA MALA
1^st Respondent

2. RAJNESH PRASAD & RANJEETA MALA as Parents and Guardians of TANVI TANISH (Minor)
2^nd Respondent

3. RAKESH PRASAD
3^rd Respondent

Coram : Dr. Almeida Guneratne, P

Counsel: Mr. K. Singh for the Appellant
Mr. A. Khan for the 1^st and 2^nd Respondents
3^rd Respondent Absent and Unrepresented

Dates of Hearing: 24^th April, 2023.
Date of Decision: 12^th June, 2023

DECISION

[1] This is an application by the Appellant seeking leave to appeal (out of time) (and a stay) of the judgment of the High Court dated 7^th December, 2021. On 22^nd February, 2022 this Court granted an interim stay by consent of parties.

[2] The Appellant is seeking to explain “the delay” in seeking leave to appeal (out of time) placed before this Court at the hearing several reasons (of a procedural nature) re-iterated as it were contained in its written submissions filed on 10^th January, 2023. (vide: paragraph 1.3 a and b thereof).

[3] Apart from those reasons the Appellant advanced an additional ground that, when the impugned judgment was delivered, the Appellant was not present in Court and it received the judgment 41 days after its delivery in open Court.

[4] Being obliged to ascertain the truth or otherwise of the Appellant’s said grounds, I called for the High Court Record which I went through and I make my observations thereon as follows.

Observations on the grounds urged by the Appellant

Re: Absence of an affidavit of service in regard to service of the Writ on the 2^nd Appellant (2^nd Defendant)

[5] As a result of a query the Appellant had raised with the High Court Registry, by its response dated 11^th May, 2022, the Registry confirmed that to be correct.

[6] However, the Record reveals that, thereafter, the Appellants had filed a Statement of Defence, took part at not only a Pre-trial Conference but went through a full trial.

[7] Accordingly, without need for any exercise in jurisprudential semantics, the said ground is reduced to a technicality (no doubt amounting to a procedural impropriety) but not having prejudiced the Appellant.

Re: the Appellant having had no notice of the impugned Judgment of the High Court

[8] On a perusal of the High Court Record, I found that, the High Court registry had sent notifications dated 6^th December, 2021 to the Plaintiffs (Respondents) lawyers, Messrs. Reddy and Nandan Lawyers “copied to Nands Law” (on the basis that they were the lawyers for the Appellant) that, the judgment will be delivered on 7^th December, 2021.

[9] I noted that, it was only by a notice dated 4^th February, 2022 sent to the High Court, the Appellant’s Solicitors had been changed.

[10] Thus, it is apparent that, the Appellant through the Solicitors on Record as at 7^th December, 2021 had notice of the date of delivery of the Judgment.

[11] Moreover on the 7^th December, 2021 when the judgment was delivered the minute sheet recorded as follows:

“CLERKS: Sefa

IN THE HIGH COURT OF FIJI

AT SUVA

ACTION NO: HBC 19/2016

BEFORE THE HON CHIEF JUSTICE, MR JUSTICE KAMAL KUMAR ON TUESDAY THE 7^TH DAY OF DECEMBER 2021, 2.30 O’CLOCK IN THE AFTERNOON.

MR/MS DATT S. FOR PLAINTIFF/APPLICANT/ APPELLANT

MR/MS KUMAR P (on instructions of Nands Law) FOR DEFENDANT/RESPONDENT”

[12] Consequently, I was unable to respond favourably to the Appellant’s contention in seeking to excuse the admitted delay of 41 days in preferring the present application for leave to appeal (out of time).

[13] I have held in a series of decisions of mine that, if “the reasons for the delay” in preferring an appeal out of time are found to be satisfactorily explained, then such a belated appeal must be treated on par with an appeal filed within time. On the flip side, if such reasons are not found to be acceptable, then, the matter needed to be regarded as putting the lid thereon (to that extent, with respect, departing from the Supreme Court decision in NLTB v Khan [2013] FJSC 1.

[14] Without crowding this decision with those decisions (referred to above) I shall only refer to one of them (vide: Pacific Energy etal vs Ashay Amar etal ABU 0020 of 2022, 30^th December, 2022.

[15] Having said that however, given that NLTB v Khan is a Supreme Court decision, I had to fall back on the approach in NLTB v Khan (supra) on the criterion of the existence of “reasonable prospect of success if leave was to be granted” and/or “there being an arguable case”.

The Grounds of Appeal urged - Discussion followed by Determination

[16] The Appellant has urged eight grounds of appeal (Annexure ‘E’ to the summons seeking leave to appeal).

[17] Of the said grounds, for the reasons I have stated above, I was unable to hold with the Appellant on grounds 1 to 3 urged therein.

[18] In regard to ground 4, having tested the said ground against the impugned judgment of the High Court. I could not find a basis to fault the High Court in that regard and therefore I reject the said ground.

[19] I was also not able to agree with the Appellant’s contention that, the Learned Judge failed to consider properly whether or not there was contributory negligence (Ground 5).

[20] Indeed, the case being one concerned with personal injuries I spent time going through the entire record of evidence led at the trial.

[21] The Learned Judge addressed that issue on the facts and evidence led.

[22] The judge noted that at some point he (the 1^st Plaintiff) was going past the truck (page 11 of the Judgment).

[23] The Judge also took note of the 2^nd Appellant’s claim that, the 1^st Plaintiff (1^st Respondent) drove at high speed (at 50 kmph) whereas, the 1^st Defendant had been driving at 45kmph.

[24] Analysing that evidence the learned Judge concluded thus:

“45. It is therefore apparent that 1^st Defendant was driving the Truck slower than the Taxi.

46. This means that there was nothing stopping the Taxi to go past the Truck when it was going at the speed of 50 km/hr which was the normal speed.
47. This Court finds that FNPF in no way contributed to his or his passengers injury from the accident.”
    

[25] On that analysis I could not find a basis to fault the Judge’s said analysis.

[26] If the Appellant’s complaint that, the Learned Judge failed to consider properly the said issue on contributory negligence, then, the Appellant was obliged to demonstrate that, in the Learned Judge’s Judgment, there was some element which could be said to have amounted to a misdirection/ non-direction or something perverse.

[27] That, the Appellant has not done whether in the written submissions or in the oral submissions in this Court at the hearing before me.

[28] Accordingly, I reject the said ground 5.

[29] The grounds 6 to 8 being ipso facto, consequential to the said ground 5, I reject the same as well.

[30] Accordingly, I proceed to make my orders as follows.

Orders of Court:

1. The application for leave to appeal the impugned judgment of the High Court is refused.
2. Consequently, the Appellant’s application for “a stay” of the impugned High Court judgment is also refused and/or declined.
3. The Appellant shall pay to the 1^st and 2^nd Respondents as costs of this application in a joint sum payable to them in a sum of $2,500.
   

Hon. Justice Almeida Guneratne
PRESIDENT, COURT OF APPEAL

Solicitors:
KS Laws for the Appellant
Reddy & Nandan Lawyers for the 1^st & 2^nd Respondents