Dominion Finance Ltd v Koya [2011] FJHC 66; HBC0193.2009 (7 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 0193 of 2009

BETWEEN:

DOMINION FINANCE LIMITED
a limited liability company having its registered office at Suva
Plaintiff

AND:

SIDDIQ FAIZAL KOYA (father's name Siddiq Moidin Koya
and MUBARKA KOYA father's name Mohammed Munif
both of Flat 3, Lot 8,
ATS Subdivision, Namaka, Nadi, Magistrate and Businesswoman respectively
Defendants

Appearances:

For the Defendant: Ms T.Draunidalo
For the Plaintiff: Mr Faiz Khan
Counsel for the 3rd Party: Mr H.A.Shah

Date of Hearing: 26 January 2011
Date of Order: 07 February 2011

ORDER

This is a hearing for leave to appeal under Order 59 Rule 11 of the High Court Rules (1988),from the Master's Order. Though the Master has delivered Summary Judgment for the Plaintiff on the 20 August 2010, both the Defendant and the Plaintiff are seeking leave to appeal from the Master's said "Ruling".

It is submitted for the Defendant at the hearing that, the Defendant had commenced 3rd party proceedings, and that the Master has proceeded to give Summary Judgment before the 3rd party could respond. The Defendant's contention is that the 3rd party has completely taken over the Defendant's business. Defendant's counsel points out the "e mail correspondence" marked by the Plaintiff as KRS 1 with the affidavit of Karl Rebman Smith of the Plaintiff. (The particular affidavit has been filed on 21/September/2010.) Karl Rebman Smith shows that, he had cause to question Azad Sheikh thus; "but did you take over Faizal's business or not?" Defendant's counsel states that Azad Sheikh introduced the 3rd party.

It may have been far more desirable, had the Master delivered the Summary Judgment after the 3rd party had responded.

In any event the Plaintiff too is seeking leave to appeal, on the basis that Master has reduced the rate of interest sought by the Plaintiff as per the Agreement with the Defendant. One wonders whether, equally Master could increase the rate of interest in delivering Summary Judgment. The Plaintiff's Counsel point out Section 3(b), of the Law Reform (Miscellaneous Provisions) (Death and Interest) Cap.27 Fiji Laws Vol. III. Assuming the Master proceeded to grant interest under Section 3, of the said Law then the Master could equally be said to be stayed from acting under Section 3 as the interest the Plaintiff seeks is interest alleged to be agreed between parties as referred to in Section 3(b).

There appears to be merit in the Submissions of both the Defendant and the Plaintiff, in seeking leave to appeal from the Master's "Ruling" in entering Summary Judgment. There are prima facie grounds disclosed to warrant leave to appeal.

Therefore leave to appeal is granted to both the Defendant and the Plaintiff to appeal from the Master's Ruling of 20/8/2010.

Parties to bear their Costs.

Y. I Fernando
Puisne Judge

High Court of Fiji
At Lautoka

07th February 2011