Prasad v Singh [2011] FJHC 274; Civil Appeal 011.2008 (19 May 2011)

IN THE HIGH COURT OF FIJI
LAUTOKA

IN THE MATTER of an Appeal from the decision of the Tavua Magistrate's Court in Civil Action No 17 of 2005

CIVIL APPEAL NO: 011/ 2008

BETWEEN

1. SATEND PRASAD
2. PREMA WATI

of Tagi Tagi
Tavua
Defendant-Appellants.

AND

SUSHIL KUMAR SINGH
of Tagi Tagi
Tavua
Plaintiff-Respondent

BEFORE: PRIYANTHA NAWANA J.

COUNSEL: Mr S K Ram for the Defendant-Appellants
Dr Sahu Khan for the Plaintiff-Respondent

Date of Hearing: 25 March 2011
Date of Judgement: 19 May 2011

JUDGMENT

1. This is an appeal against the decision of the learned Magistrate, Tavua, made on 15 November 2007 in the exercise of civil jurisdiction.
   
2. The plaintiff-respondent (the respondent) instituted action by his amended statement of claim of 08 May 2006 against the defendant-appellant (the appellant) seeking vacant possession of a land comprising of 2365 Sq. Mt. at Ba in the Tavua District, which was subject to a native lease registered under No 26859 with the Registrar of Deeds. The respondent also claimed special and general damages from the appellant with effect from 31 August 2005 until the date of judgment.
   
3. The reliefs were claimed on the basis that the appellant was occupying a portion of the land without the consent of the Native Lands Trust Board. The respondent pleaded that such occupation of the land by the appellant became to be a nuisance warranting his ejection from the land.
   
4. The appellants, filing a statement of defence on 22 May 2006, alleged fraud against the respondent in establishing his entitlement to the land and sought to particularise the alleged fraud. The appellants inter alia sought orders against their eviction and counter-claimed for damages and compensation for alleged fraud.
   
5. The respondent, by way of his reply dated 06 June 2006 to the statement of defence, denied the claims alleged by the appellants and disputed the right of the appellants to reliefs sought in the counter-claims.
   
6. The case, with the above issues for trial, stood fixed for hearing on 18 September 2007, on which date, counsel for the appellant sought leave from court to withdraw. The learned Magistrate granted leave pursuant to which the 2nd appellant informed court that she would need to engage another counsel as she had had information of withdrawal of the counsel only on the previous day i.e., 17 September 2007. She accordingly requested for an adjournment of one month to retain counsel.
   
7. Dr Sahu Khan, appearing for the respondent, objected to one month being given and submitted that he was ready to proceed with the trial.
   
8. The learned Magistrate, after a brief recess, took up the case for trial at 10.10 a.m. and proceeded to record the evidence of the respondent and the appellant in support of their respective cases. After hearing legal submissions at the close of the recording of the evidence, the learned Magistrate reserved the ruling for 09 October 2007. The ruling was put-off for five consecutive times until it was eventually delivered on 15 November 2007.
   
9. By her ruling dated 15 November 2007, the learned Magistrate ordered the appellant to return vacant possession of the property by 18 November 2007 and disallowed the claims of the respondent for damages.
   
10. The appellants, after giving notice of intention to appeal on 19 November 2007, filed their grounds of appeal on 22 November 2007 and successfully moved for stay of the judgment of the learned Magistrate dated 15 November 2007. The judgment of the learned Magistrate, accordingly, stands stayed in pursuance of the decision of the learned Magistrate dated 08 January 2008 pending the determination of this appeal.
    
11. The appellants, in support of their appeal to this court, rely on two grounds. The first relates to the procedure while the other relates to the substantive aspects of the subject matter. The procedure, as complained of by the appellants, is that the learned Magistrate was in error both in fact and law:
    

(i) When she failed to give an adjournment for hearing when the counsel for the appellant withdrew with leave of court on the date of trial; and,

(ii) When there was no investigation to ensure that the appellants would not be prejudiced in their defence in the absence of a counsel.

12. The complaints of the appellants as to the denial of an opportunity to retain counsel by means of an adjournment are borne-out by the record itself as summarised above. This denial undoubtedly constitutes fundamental breaches in regard to the fairness of the proceedings and the observance of rules of natural justice. I will, accordingly, deal first with this procedural aspect of the complaints of the appellants.
    
13. An adjournment of hearing of a case is not allowable as a matter of course. Instead, it could and should either be granted or refused at the discretion of trial court. Since the exercise of the discretion by court is the pivotal issue in the matter, an appellate court would be very slow to interfere with the exercise of such discretion unless facts of the case warrant such interference due to the failure or improper exercise of discretion by the trial court in granting or refusing an application for adjournment.
    
14. Primary matters that need be considered in exercising the discretion in regard to an application for adjournment are the context in which the application is made and the conduct of the applicant. Court must also simultaneously consider whether:
    
    • (i) the refusal of the application would amount to denial of a fair hearing;
      
    • (ii) such refusal would affect the effective observance of rules of natural justice;
      
    • (iii) the opposite party could suffer an irremediable loss or damage by granting the application; and,
      
    • (iv) such loss or damage could be adequately compensated by pecuniary awards such as cost or damage.
      

(Goldenwest Enterprises Ltd. V Pautogo [2008] FJCA 3; 03 March 2008)

15. The exercise of discretion either to grant or to refuse an application for adjournment upon consideration of the above matters is, therefore, a judicial act. An appellate court would be able to examine the propriety of such judicial act based on discretion by reference to reasons assigned by the trial court in line with the above. Upon consideration of the reasons, an appellate court, in the exercise of its appellate power would either intervene or refrain from doing so on a matter of an adjournment.
    
16. I have examined the proceedings had before the learned Magistrate dated 18 September 2007 bearing in mind the above principles, which are universally applicable on this aspect of the law relating to administration of justice. It is clear as clear could be that the learned Magistrate had refused the application for adjournment impliedly and failed to give any reasons. Such failure, in this instance, could be equalled to a situation that the learned Magistrate did not have reasons at all to justify her decision to refuse the application for an adjournment. Absence of reasons for any judicial decision, either implied or explicit, sounds arbitrariness. Arbitrariness is anathema to the system of justice and should be avoided at all stages of judicial proceedings.
    
17. Moreover, when the proceedings of 17 September 2007 are looked at more closely, it appears that the learned counsel for the plaintiff (the respondent), too, had not objected to the application for adjournment as such. Instead, he had objected only to the length of the adjournment. The learned Magistrate, in the circumstances, should have considered the application in favour of the appellants and grant an adjournment for a reasonable length of time either to retain counsel or for the appellants to prepare for the case by themselves.
    
18. Instead, the learned Magistrate decided to commence and conclude the trial on 17 September 2007 itself without an adjournment resulting in an inequality of arms, which gravely prejudiced the appellants given the contentious issues put on trial. The decision also deprived the learned Magistrate herself of hearing the case for the appellants effectively, which had the inefficacy of offending the principles of natural justice against the interests of the appellants.
    
19. Proceedings, accordingly, show that the learned Magistrate has dealt with the application of the appellants for an adjournment in total disregard of the applicable principles that she was under a duty to consider. Hence, the decision is devoid of legal force.
    
20. In the circumstances, I accept the complaints of the appellants that the procedure adopted by the learned Magistrate in commencing and concluding the trial is improper. In the result, I hold that the proceedings had before the learned Magistrate constituted a mistrial and its conclusions are, therefore, void in law owing to serious procedural flaws as enumerated above. These conclusions warrant intervention by this court in the exercise of its appellate power to remedy the illegality committed by the learned Magistrate.
    
21. I, accordingly, allow the appeal of the appellants and set aside the proceedings dated 17 September 2007 and the decision dated 15 November 2007 of the learned Magistrate. The respondent is ordered to pay costs of this appeal in a sum of $ 500.00. These conclusions leave no room for me to consider the other grounds of appeal based on substantive aspects of the matter in issue.
    

Priyantha Nawana
Judge

High Court,
Lautoka