Ali v Patterson Brothers Shipping Company Ltd [2012] FJHC 1025; HBC41.2008 (13 April 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No: HBC 41 of 2008

BETWEEN:

ZAHID AFWAZ ALI
[1st Plaintiff]

AND:

PATTERSON BROTHERS SHIPPING COMPANY LIMITED
[1st Defendant]

AND:

PRASAD HOLDINGS LIMITED
[2nd Defendant]

AND:

SABIR HUSSEIN
[3rd Defendant]

AND:

FAIYAZ ALI
[4th Defendant]

Counsel: Mr. A. Sen for the Plaintiff.
Mr. S. Leweniqila for the 1st Defendant.
Mr. Lomaloma for the 2nd Defendant
Mr. Ram for the 4th Defendant.

Date of Judgment: 13th April, 2012

RULING ON APPLICATION FOR LEAVE TO APPEAL

[1]. By a notice of Motion, the 4th defendant seeks leave to appeal the order made by this court on 23.07.2010, refusing to grant an adjournment to enable the 4th defendant to appear and present his evidence and his witnesses at the trial.

[2]. In support of the motion, an affidavit was filed by one Shalendra Kumar, a law clerk of the 4th defendant's solicitors. It is interesting to note that in that affidavit, no reasonable excuse was given for the absence of the 4th defendant. It is simply stated that 4th defendant's witness had to go to Nabala Junior School that day and could not find transport back to come to Labasa town on time.

[3]. The affidavit filed by the witness Joseva Serunisiga in the Court of Appeal is annexed to one of the affidavits filed by Shalendra Kumar. Although it is stated in the affidavit that the witness went to Nabula Junior Secondary School to attend school duties and could not find transport to return to Labasa since it was some 25 Km away from town, the deponent has failed to annex any document to show that the witness in fact was attending school duties on that day.

[4]. Further, no affidavit was tendered by the 4th defendant explaining the reasons for his absence. According to the affidavit of Shalendra, the 4th defendant accompanied him and his solicitor to the Labasa Court House from the beginning of the trial until lunch time on 23rd July 2010, when the 4th defendant drove his solicitor and the deponent together in his van from the court house to Labasa town.

[5]. He further stated that the 4th defendant was to return to the court for the continuation of the trial at 2.00p.m.When the trial resumed, the 4th defendant was called but he did not appear and the court adjourned for 15 minutes to enable the 4th defendant to appear but he did not turn up.

[6]. Then a witness named Joseva was called but he also did not appear and the counsel for the 4th defendant sought a warrant against the witness since he was not present.

[7]. However, court refused to grant his application for a warrant against the witness, because the subpoena was served on the witness only on 21.07.2010 that is 2 days before the trial date, and thereby failed to act in compliance with order 38 rule 14 (5) which required the subpoena to be served not less than 7 clear days.

Law governing the granting of the leave to appeal

[8]. Section 12(2) of the Court of Appeal Act Cap 12 requires that leave be obtained from a judge of the High Court or of the Court of Appeal, if an appeal is going to be filed against any interlocutory order or judgment of the High Court except in certain circumstances.

[9]. It is settled law and practice that when an application for leave to appeal is made, the party so applying must show that the appeal has a good prospect of success, and if leave is not granted a substantial injustice and prejudice would cause to the appellant.

[10]. As a general rule there is a strong presumption against the granting leave to appeal from interlocutory orders which do not finally determine any substantive rights of either party.

[11]. In Ex parte Bucknell [1936] HCA 67; 56 CLR 221 at 224, the Court said:

1. 'At the same time it must be remembered that the prima facie presumption is against appeals from interlocutory orders, and therefore, an application for leave to appeal under section 35(1)(a) should not be granted as of course without consideration of the nature and circumstances of the particular case. It would be unwise to attempt an exhaustive statements of the considerations which should be regarded as a justification for granting leave to appeal in the case of an interlocutory order, but it is desirable that, without doing this, an indication should be given of the matters which the court regards as relevant upon an application for leave to appeal from an interlocutory judgment.'
   

[12]. A useful summary of some of the matters that should be considered by a judge in an application of this nature could be seen in Niemann v. Electronic Industries Ltd [1978] V.R 441 as follows:

1. Whether the issue raised is one of general importance or whether it simply depends upon the facts of the particular case;
   
2. Whether there are involved in the case difficult questions of law, upon which different views have been expressed from time to time or as to which he has been "sorely troubled";
   
3. Whether the order made has the effect of altering the substantive rights of the parties or either of them; and
   
4. That as a general rule there is a strong presumption against granting leave to appeal from interlocutory orders or judgments which do not either directly or by their practical effect finally determine any substantive rights of either party.
   

[13]. It must be observed that this trial commenced on 19.07.2010, and the parties were well aware of the progress of the trial. When the trial resumed after lunch on 23.07.2010, neither the 4th defendant nor his witness was present in court. The 4th defendant's counsel sought 15 minutes adjournment to find out the 4th defendant and his witness, which was granted by court.

[14]. Even after the adjournment, none of them was present in court and their counsel was also not aware of their whereabouts.Hence, court concluded the trial.

[15]. Around 4.00 pm on the same day the court clerk informed that the 4th defendant and his witness were available but by that time, the trial had already been concluded and the plaintiff and his counsel had left the court. There was no possibility to record their evidence and therefore court refused to entertain them.

[16]. It must be noted that the accident relating to this case occurred on 18.11.2007, and as a result, the plaintiff lost his both legs and the total permanent incapacity is 100%. Hence, it is abundantly clear that if the conclusion of this trial is further delayed the plaintiff would be greatly prejudiced.

[17]. The trial was set for 5 days and all the parties were informed that matter to be concluded within the set time frame.

[18]. Knowing very well that they would be called to give evidence, the 4th defendant and his witness left the court during the lunch break on 23.07.2010, but did not come back.

[19]. It is admitted that the 4th defendant was in court during the morning session. But no reasons were given for his absence either by himself or by the lawyer's clerk.

[20]. Not only that, even the 4th defendant's counsel was not aware of and was not informed of the 4thdefendant's and his witnesses'whereabouts which is quite unacceptable given the circumstances of the trial.

[21]. Had the 4th defendant or his witness left for some very urgent matter, of course court could excuse them, but in the absence of any valid grounds, considering the nature and the circumstance of this case, I am not inclined to decide the application for leave to appeal in favour of the 4th defendant. Time and again court has stressed the importance of punctuality and once a time table is set for the trial it is the duty of the parties and their witnesses to be present in court accordingly.

[22]. In the present case, court granted the 4th defendant every opportunity to produce his evidence and call his witnesses. In fact, 2 witnesses have already given evidence on behalf of the 4th defendant. Therefore, in my opinion, refusal of granting an adjournment would cause no grave injustice to the 4th defendant.

[23]. Further, if these types of applications are allowed, it would set up a bad precedent and also it would operate as a hindrance to the administration of justice and would also delay the proceedings.

[24]. The 4th defendant in his written submissions cited number of decided case in support of his application for leave to appeal. However, considering the circumstances of the instant case, it is difficult, if not impossible to draw a parallel between the present case and the cases cited so by the 4th defendant, because in almost all of those cases there were some genuine reasons for seeking adjournments but in the present case the grounds advanced by the 4th defendant are far from satisfactory and therefore cannot be accepted.

[25]. In the instant case, court never refused to grant an adjournment to the 4th defendant although submitted so by the 4th defendant. When the 4th defendant's counsel moved for an adjournment court granted it, but even after the adjournment neither the 4th defendant nor his witness turned up. The 4th defendant's counsel was also not aware of their whereabouts. Therefore, concluding the trial without granting a further adjournment would not, in my view, amount to a denial of procedural fairness as alleged by the 4th defendant.

[26]. Furthermore, in the present case it is the plaintiff who has been suffering for last several years and will further suffer if the case is not concluded expeditiously. Therefore, it would be an unfair and unjust exercise if the court uses its discretion to grant leave to appeal which will cause further delay in concluding the case which ultimately prevent the plaintiff from obtaining the remedy available for him. Court has to consider not only the defendant's rights but also the victim's (in this case the plaintiff's) rights as well.

[27]. When a person did not appear in courts without any valid reasons and pay little or no regards to the court's directions, that particular person should not expect that the court would give him an audience at any cost and make the other party to view the future of the case with trepidation.

[28]. Furthermore, it is my considered view that granting leave to appeal for this kind of applications would certainly encourage the tardy litigants to perturb the due process of law.

[29]. Upon consideration of the above facts, it is my considered view that the 4th defendant has no real prospect of success in the appeal and also has failed to advance any valid argument in support of the leave to appeal application.

[30]. On the above premise, I dismiss the 4th defendant's leave to appeal application. Parties are directed to file their respective written submissions in respect of the substantive matter within 21 days from the date of this ruling.

[31]. Cost is summarily assessed in the sum of $ 700.00.

Pradeep Hettiarachchi

JUDGE

At Suva
13th April, 2012