Deo v Ascot Motors Proprietary Ltd [2011] FJHC 782; Action 331.2008 (18 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. 331 OF 2008

BETWEEN:

RANVEER PRAKASH DEO
Plaintiff

AND:

ASCOT MOTORS PROPRIETARY LIMITED
First Defendant

AND:

COCA-COLA AMATIL (Fiji) LTD
Second Defendant

Mr D Singh for the Plaintiff
Mr V Singh for the Second Defendant

DECISION

This is an application by summons dated 4 October 2011 filed by the Second Defendant seeking an order that the Plaintiff's appeal from a decision of the Master be deemed abandoned under Order 59 Rule 17 (3) of the High Court Rules.

The application was supported by an affidavit sworn by Sharon Veu Morris on 29 September 2011. An answering affidavit sworn by Hemant Kumar on 11 October 2011 was filed on behalf of the Plaintiff.

The application was heard on 18 October 2011. Counsel presented helpful submissions on the relevant law.

On 11 March 2011 Master Amaratunga ordered that the Plaintiff's action be struck out pursuant to Order 25 Rule 9. On 18 August 2011 the Plaintiff was granted leave to appeal the Master's decision.

The Plaintiff filed a Notice and Grounds of Appeal on 23 August 2011. The Notice and Grounds of Appeal was served on the Second Defendant on 24 August 2011.

At this stage it is necessary to refer to Order 59 Rule 17 of the High Court Rules:

"(1) The appellant shall, upon serving the notice of appeal on the party or parties to the appeal, file an affidavit of service within 7 days of such service.

(2) The appellant shall, within 21 days of the filing of notice of appeal, file and serve a summons returnable before a judge for directions and a date for the hearing of the appeal.

(3) If this rule is not complied with, the appeal is deemed to have been abandoned."

The effect of the rule is that if the appellant does not file an affidavit within 7 days of service or does not file and serve a summons with 21 days of the filing of his notice of appeal, he is deemed to have abandoned his appeal.

In this case the affidavit required under Order 59 Rule 17 (1) was filed on 31 August 2011 and therefore was filed within the required seven days.

However the summons required under Rule 17 (2) whilst filed on 14 September was not served on the Second Defendant until 26 September 2011. The summons was required to be served no later than 13 September 2011. It was as a result out of time by 13 days.

Rule 17 is quite clear. Under those circumstances the appeal is deemed to be abandoned. In civil litigation, abandonment is taken to mean the relinquishing of the whole or part of a claim in an action or in an appeal. The appeal is therefore deemed to have been abandoned by the appellant. There is now no longer any appeal in existence. This result is an automatic consequence that is prescribed by the rule with no second chance.

Counsel for the Plaintiff referred the Court to an interlocutory decision in A Mitchell Gay and Another –v- Resolution Trust Corporation and Others (unreported civil appeal HBA 01 of 2009 delivered 26 February 2010). During the course of that decision I made an observation, when dealing with a similar situation, that there was no explanation in the affidavit material to explain the failure to comply with Order 59 Rule 17 (2). To the extent that the comment may be taken to indicate that such an explanation, if reasonable could alleviate the consequence of non-compliance, then the comment should be disregarded as it was misleading. Whilst draconian, the consequence mandated by Rule 17 (3) for non-compliance with either Rule 17 (1) or Rule 17 (2) of Order 59 is final and absolute.

Whether there is any jurisdiction vested in the Court to entertain an application to re-instate the appeal has not yet been decided and there is no such application presently before me. I have some doubt as to the existence of a power to re-instate an abandoned appeal.

Nor do I, in this application, find it necessary to make any comment on what may be the outcome in the event that the Plaintiff should seek to commence afresh the appeal proceedings under Order 59.

Finally, Counsel for the Plaintiff urged the Court to exercise its inherent jurisdiction to extend the time for the service of the summons. In my judgment the exercise of such a discretion is not available in circumstances when the appeal has already been abandoned and as a result of which there is no appeal on foot in respect of which a discretion could be exercised. Furthermore there was no application to that effect before the Court.

For all of the above reasons the application by the Second Defendant is granted. I order that the appeal be deemed abandoned in accordance with Order 59 Rule 17. I do not consider that such an application was necessary as Rule 17 (3) provides for the consequences of non-compliance as a matter of course. There was no requirement for the Second Defendant to do anything further once the Plaintiff had failed to comply with Order 59 Rule 17 (2). Under the circumstances each side is to pay its own costs.

W D Calanchini
Judge

18 November 2011
At Suva