Prasad v Land Transport Authority [2007] FJHC 127; Civil Appeal 50.2004 (16 March 2007)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL APPEAL NO. 50 OF 2004

(On an Appeal from decision of Land Transport Appeals
Tribunal pursuant to Section 48 of Land Transport Act)

BETWEEN

RAJENDRA DEO PRASAD
t/a Northern Buses
Appellant

AND

LAND TRANSPORT AUTHORITY
Respondent

AND

1. PARMOD ENTERPRISES LTD
2. EASTERN EXPRESS LIMITED (In Receivership)
Interested Parties

Mr. A. Sen for the Appellant
Mr. A. Vakaloloma for the Respondent
Mr. V. Kapadia for Eastern Express Limited (1^st Interested Party)
Mr. R. Prakash for Parmod Enterprises Ltd (2^nd Interested Party)

Date of Judgment: 16.3.07

JUDGMENT

This is an appeal by Rajendra Deo Prasad s/o Latchman (the 'appellant') against the decision made by the Land Transport Appeals Tribunal (the 'Tribunal') on 19 October 2004 in Appeal Nos. 180/2003, 200/2003(a) & (b) 206/2004 (a) & (b).

The appeal to the Tribunal arose from a decision entered on 19 August 2003 of the Land Transport Authority (the 'Authority') to transfer 6 permits from Eastern Express Limited to Parmod Enterprises Ltd. The Eastern Express Ltd (the Second Interested Party - '2^nd IP') operated six Road Route Licence Permit until year 2001 to 2003 when it was unable to operate on any of the six routes.

Background facts

The background facts are as follows (as stated in the Land Transport Authority's written submission):-

That Eastern Express Limited (the 'Interested Party') operated six Road Route Licence Permits until the years 2001 to 2003 where it was unable to operate on any of the six routes.

That Eastern Express Limited went through receivership where Messrs. Navin Patel and Pradip Patel of G. Lal & Co were appointed the Company's Receivers and Managers who in turn appointed Mr. Parmod Chand as the Company's operations manager.

That the respondent during this period (2001 to 2003) arranged with the appellant to temporarily provide supplementary service on some of the Eastern's routes.

That the appellant applied for a permit to operate on some of Eastern's routes in April 2001 and also made similar applications in 2002.

That the Receivers of Eastern Express Limited decided to sell the company and after considering all the applications, sold it to Parmod Enterprises Limited.

That in February 2003 Parmod Enterprises Limited made an application to the Respondent for a transfer of all of Eastern's permits and on the 19^th of August 2003, the Respondent approved their application and notified all parties concerned including the Appellant by letter and a notice in the press.

That on 10^th December 2003 the Respondent refused all of appellant's applications on Eastern's route.

That the appellant appealed to the Land Transport Appeals Tribunal stating that the Authority's decision to give a later application priority over his earlier application was 'unfair' and caused the appellant grave injustice'.

The Tribunal (Sir Vijay R. Singh) gave his decision stating, inter alia, that:

"For the reasons given above, I find that every one of the Appellant's appeals is so wholly bereft of any merit as to border on the frivolous and I dismiss them all."

The submission of the parties

It is the appellant's contention that its application which was pending should have been dealt with first by the Authority rather than considering Parmod Enterprises Limited's application which was a subsequent application and approving it.

The appellant's complaint is that he was 'deprived of fair hearing and determination' and 'fair procedures were not applied' in accordance with the rules of natural justice.

Counsel submits that since the appellant's application was first in time it should have been given priority. He says that the decision is 'unfair, unreasonable and wrong in law' and therefore the Court should intervene in such circumstances.

Counsel for Parmod Enterprises Ltd (1^st Interested Party - 1^st IP) submits that the Authority heard and approved its application on 19 August 2003 and on 10 December 2003 it refused all the appellant's applications for various routes previously covered in Eastern Express Limited's permit.

The 1^st IP agrees with the Tribunal's findings and the reasons he gave. The 1^st IP has never been in Receivership nor is it now. It is Eastern Express Limited (the 2^nd IP) which was in Receivership.

Counsel further submits that under s48 of the Land Transport Act the decision of the Tribunal shall be subject to an appeal only on a point of law.

In the absence of rules governing appeals under the Act, The High Court Rules 1988 are applicable. In this case Order 55 Rule 1 is applicable.

This order has not been complied with on the part of the appellant as Notice of Grounds of Appeal had not been properly served on the interested parties pursuant to Order 55 r4(2).

Furthermore, counsel submits that this appeal is out of time by two (2) days.

In this Appeal the 1^st IP supports the submissions made by the Authority. Further it also supports the 2^nd IP on its submission.

The Eastern Express Limited in its submissions raised the same points as the 1^st IP.

Mr. Kapadia submits that the appeal be dismissed as it has no merit at all.

Consideration of the appeal

I have set out hereabove the background to the case, and the circumstances which led to this Appeal. The submissions of all the counsel have been considered.

The Respondent Authority and the Interested Parties have all opposed the Appeal and have given reasons for doing so.

Without repeating the points made by them I agree with them that there is no merit in the Appeal for the appellant has not, inter alia, complied with the requirements of the said Order 55 and that no 'point of law' have been raised as required under section 48 of the Land Transport Act 1998 which provides that:

"a decision of the Tribunal shall be subject to an appeal only on point of law to the High Court."

I find and I agree with all counsel that this is also a frivolous application devoid of any merit.

The Tribunal has very lucidly set out the background to the case and how the Authority dealt with the applications before it and how the appellant did not object to the Authority entertaining Parmod's applications without first dealing with his prior applications.

I am of the view that the Tribunal's Decision cannot be faulted at all. It is a very carefully reasoned and solid Decision. I do not find any error of law in the Decision. The appellant has not raised any 'point of law' in his appeal which is a mandatory requirement under the said section 48 of the Act.

The Court of Appeal case of K.R. Latchan & Vatukoula Express Service v Sunbeam Transport, Pacific Transport & Transport Control Board (Civil Appeal Nos. 45, 50, 57 & 61 of 1983 does not support the appellant's ground of Appeal that the Appellant's earlier applications should have been heard before Parmod Enterprise's much later application for the transfer of the said licences to it. This ground was quite rightly rejected by the Tribunal stating that

"all that the Court of Appeal did was to point out that Kermode J's 'unfortunate' comment suggesting that a later application was given unfair priority of hearing was factually incorrect."

I find that there was nothing wrong with the procedure of dealing with the applications in this case. I agree with the Tribunal's opinion that "in a case where there are competing applications, hearing and determining them in the sequence in which they were made is a recipe for injustice".

I hold that the Authority did not either act unfairly or caused 'grave injustice' to the appellant as alleged by him.

I agree with the Tribunal that there was no procedural unfairness and he went on to state that the Authority acted 'in accordance with the dictates of sound public policy' and 'cannot be said to be procedurally unfair or to have prejudiced any reasonable expectation of the appellant, or occasioned him any injustice'.

I do not see any reason to interfere with the Tribunal's findings of fact about the transparent, reasonable and responsible manner in which the Authority handled the Appellant's applications herein.

Upon my perusal of the Record of the proceedings herein, I find that the Appellant should have known that he had no leg to stand on. By the award of heavy costs against him on close to indemnity basis by the Tribunal and the reasons by the Tribunal for his Decision, the appellant should have realized how weak his case was for appeal. One should not appeal for the sake of appealing. This was an appeal deserving of summary dismissal.

Therefore, the appeal is dismissed with costs against the appellant payable to the Respondent and the two Interested Parties' solicitors the sum of $800.00 (eight hundred dollars) each within 14 days.

D. Pathik
Judge

At Suva
16 March 2007