Khan v Native Land Trust Board [2009] FJHC 272; HBC198.2006L (1 December 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 198 of 2006L

BETWEEN:

AHMED KHAN
f/n Ibharat Khan of Talilaiya, Ba, Farmer
1st Plaintiff

AND:

MOHAMMED YUSUF KHAN
f/n Ahmed Khan of Talilaiya, Ba, Farmer
2nd Plaintiff

AND:

NATIVE LAND TRUST BOARD
a statutory body created under the Native Land Trust Act
Cap 134 having its registered office at 431 Victoria Parade, Suva
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing:Mr. A. Sudhakar for the Plaintiffs
Mr. N. Tuifagalele for the Defendant

Solicitors: A. K. Lawyers for the Plaintiffs
NLTB Legal Department for the Defendant

Date of Hearing: 25 November 2009
Date of Judgment: 1 December 2009

INTRODUCTION

[1] This is an application by the Defendant, NLTB, for leave to appeal and stay of my Judgment delivered on 23 September 2009. In my judgment I dismissed the NLTB’s application to set aside judgment in default of appearance on the grounds that the default judgment was regularly entered and the NLTB had not shown a defence on the merits.

[2] The Order from the Judgment was sealed on 13 October 2009 and served on the NLTB on the next day. The NLTB filed its motion for leave to appeal and stay pending appeal on 20 October 2009.

[3] Mr Tuifagalele submitted, correctly in my view that my Judgment was an interlocutory judgment: see Goundar v Minister for Health [2008] FJCA 40; ABU0075.2006S (9 July 2008).

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

[5] 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.

[6] The appeal period has now expired but the application for leave was filed before time ran out so under Rule 27 of the Court of Appeal Rules this Court can extend the 21 day time set by Rule 16(a).

LEAVE TO APPEAL

[7] I am grateful for Mr Tuifagalele’s written submissions. He referred me to 7 Grounds of Appeal on errors of fact and law. One of the Grounds of Appeal concerns the interpretation of s 22(1) of the Native Land Trust Act. That section deals with service of legal process on the NLTB. I think it is a matter of importance that the matter is determined by the Court of Appeal despite my reservations on the prospects of succeeding on appeal on this Ground. I think this is one of those exceptional cases where an appeal from an interlocutory judgment should be allowed: Kelton Investments Ltd & Ors v CAAF [1995] FJCA 15; Latchan Brothers Ltd v TCB & Ors [1994] Civil Appeal 12/94.

STAY PENDING APPEAL

[8] 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.

[9] All that has happened so far is liability has been determined as a result of my refusal to set aside the default judgment and the action referred to the Master for determination of quantum. I think that determination can wait until the proposed appeal is decided. If the appeal fails, the Plaintiffs can be adequately compensated by an award of interest. If the appeal is successful but the quantum has been determined by the Master and paid out to the Plaintiffs, the NLTB may not be able to recover the amount that it has paid out. An order that the amount is to be paid into Court, even at this stage or after a determination by the Master, could, in the circumstances, cause unnecessary hardship to the NLTB, and as well, valuable Court time taken up in determining quantum would have been wasted.

[10] I think in these circumstances, all further steps in the action, other than those necessary for the hearing of the appeal, should be stayed pending appeal.

COSTS

[11] Mr Tuifagalele did not ask for costs so the costs of this application shall be costs in the appeal.

ORDERS

[12] The Orders are therefore as follows:

1. Leave to appeal is granted.

2. The time to file the Notice of Appeal is extended to 31 January 2010.

3. The matter now before the Master and all other steps in this action, other than those necessary for the appeal, are stayed pending determination of the appeal.

4. The costs of this application shall be costs in the appeal.

Sosefo Inoke
Judge