RC Manubhai & Co Ltd v Herbert Construction Company (Fiji) Ltd [2009] FJHC 271; HBC075.2009L (4 December 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 75 of 2009L

BETWEEN:

R C MANUBHAI & CO LTD
Plaintiff

AND:

HERBERT CONSTRUCTION COMPANY (FIJI) LTD
Defendant

_______________

Civil Action No. HBC 76 of 2009L

BETWEEN:

A-TEAM ELECTRICAL ENGINEERINGS LIMITED
Plaintiff

AND:

HERBERT CONSTRUCTION COMPANY (FIJI) LTD
Defendant

_______________

Civil Action No. HBC 90 of 2009L

BETWEEN:

ELISHA ENGINEERING COMPANY LIMITED
Plaintiff

AND:

HERBERT CONSTRUCTION COMPANY (FIJI) LTD
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr S Ram for the Plaintiff
Mr F Koya for the Defendant

Solicitors: Samuel K Ram for the Plaintiff
Koyas for the Defendant

Date of Hearing: 1 December 2009
Date of Judgment: 4 December 2009

INTRODUCTION

[1] This is an application for leave to appeal and stay of a Judgment that I delivered on 7 October 2009 in which I disqualified Mr Samuel Ram from acting for the Plaintiff in these 3 actions.

CONSOLIDATION

[2] The application included an order that the three actions be consolidated. Mr Ram and Mr Koya consented to the consolidation. It is certainly appropriate for the purposes of the appeal but I am doubtful of the wisdom of consolidation for the purposes of trial.

LEAVE TO APPEAL

[3] My Judgement of 7 October 2009 is an interlocutory judgment so leave is required for the appeal to the Court of Appeal: see Goundar v Minister for Health [2008] FJCA 40; ABU0075.2006S (9 July 2008).

[4] When the application was first called Mr Ram informed the Court that the parties had consented to leave to appeal. I did not think that this was proper procedure and that leave had to be justified. See s 12(2)(f) of the Court of Appeal Act and Kelton Investments Ltd v Civil Aviation Authority of Fiji [1995] FJCA 15; Abu0034d.95s (18 July 1995). I therefore asked Counsel to file written submissions and I would hear them on 1 December 2009. Mr Ram filed his submissions and relied on them at the hearing.

[5] The time limited for appeals from interlocutory orders is 21 days: Rule 16(a) of the Court of Appeal Rules.

[6] It runs from the date the judgment is sealed: Pacific Agencies (Fiji) Ltd v Spurling [2008] FJSC 27; CBV0007.2008S (17 October 2008) – the Supreme Court overruling Raj v Shell Fiji, Civil Appeal No. ABU0039 of 2007S.

[7] The Order from the Judgment was sealed on 3 November 2009. The application for leave to appeal was filed on 28 October 2009 so it is well within the appeal period. I therefore have jurisdiction to hear it pursuant to Rule 27 of the Court of Appeal Rules and to extend the time to file the Notice of Appeal should leave be granted.

THE LAW

[8] The law on leave to appeal interlocutory judgments is well settled. Exceptional circumstances are required: Kelton Investments Ltd & Ors v CAAF [1995] FJCA 15; Latchan Brothers Ltd v TCB & Ors [1994] Civil Appeal 12/94.

[9] The Judgment on appeal in this case raises several important legal issues in respect of the rights of a litigant to choose his or her lawyer and the right of a lawyer to represent the client of his choice. I think these issues should be allowed to go further for consideration by the Court of Appeal and for that reason alone, and for the sake of consistency because 3 days ago I granted leave to appeal[1] for the same reason, I think leave should be granted.

STAY PENDING APPEAL

[10] The court’s task in determining whether a judgment should be stayed pending appeal is to carefully weigh up all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful: Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA; ABU 11/04.

[11] If Mr Ram succeeds in his appeal then he will be allowed to represent the Plaintiff in these three actions. If I refuse the stay then the Plaintiff will have to engage another lawyer. I have said in my Judgement that these three actions do not require legal expertise and any reasonably competent lawyer will be able to handle them. The three actions will proceed through the Court like any other case and there is no delay pending the appeal and they are likely to be heard within 6 months if the lawyers are reasonably diligent. On the other hand if I stay my Judgment, further prosecution of the three actions is halted pending the appeal, assuming of course that the Plaintiff is intent on retaining Mr Ram. There is no saying at this stage when this appeal will be heard. At the moment, it seems highly unlikely that it will be heard within 6 months. However, the Defendant has not been asked to pay monies into Court and its only prejudice is that of delay in the hearing and having to make provision in its accounts for these claims. On the other hand, the Plaintiff’s right to have its lawyer of choice will be denied if I do not stay my Judgment and Mr Ram succeeds on appeal. I think in these circumstances the balance of justice favours a stay pending appeal.

ORDERS

[12] The Orders are therefore as follows:

1. Leave to appeal the Judgment delivered on 7 October 2009 is granted.
   
2. The time to file the Notice of Appeal is extended to 31 January 2010.
   
3. Execution of the said Judgment is stayed until final determination of the appeal or further order of this Court.
   
4. The Costs of this application is costs in the cause.
   

Sosefo Inoke
Judge

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^[1] Khan v NLTB [2006] FJHC; HBC 198 of 2006L (1 December 2009).