Hamid v Western Wreckers [2009] FJHC 237; HBC288.1996L (26 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 288 of 1996L

BETWEEN:

ABDUL HAMID
f/n Rasul Buksh of Nadi Muslim College Compound, Nadi, Fiji, Driver
Plaintiff

AND:

WESTERN WRECKERS
a duly registered limited liability company having its
registered office at 4 Leonidas Street, Drasa Vitogo,
Subdivision, and P. O. Box 774, Lautoka, Fiji
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Ms Prasad for the Plaintiff
Mr. Haroon A Shah for the Defendant

Solicitors: Mishra Prakash & Associates for the Plaintiff
Haroon Ali Shah Esquire for the Defendant

Date of Hearing: 14 October 2009
Date of Judgment: 26 October 2009

INTRODUCTION

[1] On 8 December 2008, Finnigan J delivered a judgment in favour of the Plaintiff, Abdul Hamid, for $25,550 and costs (the "Judgment"). It had taken 4 months short of 12 years for Mr Hamid to get his Judgment.

[2] The Defendant, Western Wreckers, now wants to appeal the Judgment and has filed an application for stay of execution and leave to appeal out of time. This is my judgment on that application.

HISTORY OF THE APPLICATION

[3] The Judgment was sealed on 26 March 2009. Western Wreckers Summons for leave to appeal the Judgment and stay of execution was filed on 17 June 2009. It was supported by an affidavit by Western Wreckers’ solicitors’ law clerk. The application was called before me on 26 June 2009 and I set a timetable for filing of affidavits and submissions and hearing on 5 August 2009. Mr Hamid filed his affidavit in reply on 6 July 2009 and his Counsel filed his submissions on 31 July 2009.

[4] On 5 August 2009 Western Wreckers then solicitors sought leave to withdraw for non-payment of fees and there being no objection by Mr Mishra, Counsel for Mr Hamid, I granted leave. However, Mr Mishra asked that I dismiss the application and for costs of $500. I felt that this matter having taken this long to be heard and then the Defendant having filed an application that could further prolong its final determination and not turn up at the hearing of its application should not be allowed to proceed further. I therefore dismissed the application and ordered Western Wreckers to pay Mr Hamid’s costs of $500.

[5] On 24 August 2009, Haroon Ali Shah, Esquire, filed a Notice that he now represents Western Wreckers and a second Summons for leave to appeal out of time and stay. The Summons was called on 31 August 2009 and on that day further time was given to Mr Shah to file his submissions and I set down his client’s application for hearing on 25 September 2009. Again on 25 September 2009, further time was given to Counsel and the matter reset for hearing on 14 October 2009.

CONSIDERATION OF LEAVE TO APPEAL OUT OF TIME

[6] The Judgment being appealed is a final judgment so Western Wreckers can appeal as of right. But it must file its Notice of Appeal within the stipulated time. Under Rule 16 of the Court of Appeal Rules, it had 6 weeks to do it.

[7] The time ran from the date the Judgment was perfected i.e., sealed and entered: Pacific Agencies (Fiji) Ltd v Spurling [2008] FJSC 27; CBV0007.2008S (17 October 2008), which was 26 March 2009. The last day was therefore 7 May 2009 according to my calculations.

[8] Mr Shah’s submissions were very brief. He only argued that if there was delay it was minimal taking into account the Court vacation, the disruptions in April 2009 and there was an earlier application which was dismissed for non appearance of Counsel.

[9] This Judgment is equally as brief because Mr Shah appears to have not considered the Rules of Court. His Summons invites the Court to exercise its inherent jurisdiction which, in my view, the Court does not possess in light of the Rules.

[10] Rule 27 of the Court of Appeal Rules provides:

Without prejudice to the power of the Court of Appeal, under the [High] Court Rules as applied to the Court of Appeal, to enlarge the time prescribed by any provision of these Rules, the period for filing and serving notice of appeal under rule 16 may be extended by the Court below upon application made before the expiration of that period. (my emphasis)

[11] I do not think that I am allowed under Rule 27 to make allowance for the disruptions in April 2009. The first application, filed on 17 June 2009, was out of time by one month and 10 days. The second application was also out of time by an even bigger margin. It makes no difference, in my view, how long out of time it was filed because the terms of Rule 27 are very clear in that the High Court can only entertain applications made before the 6 weeks period expired. The application for extension of time to file Notice of Appeal should be made in the Court of Appeal and not in this Court.

[12] The two cases cited by Mr Shah: Safari Lodge Fiji Ltd v Rosedale Ltd [1999] FJHC; HBC 319 of 1999L (29 January 2008) and New India Assurance Company Ltd v Footwear Manufacturers Ltd [1999] FJCA 36; Abu0062d.98s (4 June 1999) do not assist the Court in deciding this point which is fatal to his application. Similarly the cases cited by Ms Prasad: Latchmi v Moti [1964] FJCA; 10 FLR 138 and Ali v FDB [2002] FJCA; ABU 30 of 2002 do not address the point. However, Latchmi dealt with a similar point but the Rules have since been changed to their current form.

STAY OF EXECUTION

[13] That leaves me to consider whether I should stay execution of the Judgment. Special circumstances need to be shown to upset the normal rule that a successful litigant is entitled to enjoy the fruits of his judgment. In Reddy's Enterprises Ltd v Governor of the Reserve Bank of Fiji [1991] FJCA 4; Abu0067d.90s (9 August 1991), Sir Moti Tikaram JA said this:

In requiring the Applicant to establish special circumstances in this case I am not to be taken to hold that in all applications for a stay it shall be incumbent on the Applicant to show special circumstances in the traditional sense. I subscribe to the view that adherence to an inflexible rigid test to all types of stay or injunction cases without considering their nature is not to be favoured. The strict test rule can negate the wide discretion vested in Courts and could even lead to denial of justice in particular cases. (my emphasis)

Balance of convenience

The test here is a determination of which of the two parties will suffer greater harm from granting or refusal of an interim stay pending a determination of the appeal on merits. A balancing of conflicting considerations is required, between the underlying principle that a litigant is entitled to the fruits of his judgment forthwith and the obvious injustice in refusing a stay where such a refusal will render the appeal nugatory or substantially nugatory.

[14] I respectfully subscribe to the same view.

[15] This matter has taken a long time to be decided and perhaps the Plaintiff and his lawyer must take part of the blame. The matter has gone through a full trial. I have carefully read the full and reasoned judgment of Finnigan J in which the learned trial Judge has said on several occasions that Mr Hamid was a good reliable witness and was telling the truth so His Lordship accepted his evidence in toto. There are no errors of law, in my respectful opinion, made by His Lordship. I therefore have grave doubts that Western Wreckers has any reasonable chance of succeeding on appeal. Indeed, I am inclined to think that this proposed appeal is just another delaying tactic.

[16] I can stay execution of the Judgment on conditions, as was done in Reddy's Enterprises Ltd. Western Wreckers is a substantial company so it can pay the Judgment sum of $25,550 into Court pending determination of the appeal.

COSTS

[17] In the first application I had ordered costs of $500 which Mr Shah advised have been paid. Western Wreckers has lost in this second application so it should pay the costs of this application as well. The application was fully argued. I set costs at $800.

ORDERS

[18] I therefore make the following Orders:

1. The Defendant’s Summons filed on 24 August 2009 for leave to file its Notice of Appeal is dismissed for want of jurisdiction.

2. The application for stay is granted on the following conditions:

(a) The Defendant shall pay into Court the Judgment Sum of $25,550 within 7 days.

(b) The Defendant shall pay to the Plaintiff the sum of $800 for the costs of this application within 7 days.

3. If the sums in paragraph 2 above are not paid as ordered, the stay will be lifted automatically and the Plaintiff will be free to proceed with execution.

4. The Defendant must pay the sums as ordered in paragraph 2 above before filing any application in the Court of Appeal.

Sosefo Inoke
Judge