Nair v Prasad [2012] FJHC 1455; Apeal 30.2011 (29 November 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Appeal No. 30 of 2011

From the Decision of Master in
Civil Action No. 331 of 2010

BETWEEN:

SHALENDRA NAIR & LALITA NAIR of Verata,
Nausori, Taxi Driver and Receptionist respectively.
APPELLANTS/PLAINTIFFS

CHANDAN PRASAD 23 Malima Street, Nabua, Suva, Businessman.
1st RESPONDENT/1st DEFENDENT

AND:

WESTPAC BANKING CORPORATION a registered
Bank having its head Office in 73 Gordon Street, Suva.
2nd RESPONDENT/2nd DEFENDANT

BEFORE: Hon. Justice Susantha Balapatabendi.
COUNSEL: Mr. Sunil Kumar for the Appellant.
Mr Maharaj V for the 1st Respondent.
Mr Singh K for the 2nd Respondent.

Date of Hearing : 11 April 2012.
Date of Judgment : 29 November 2012.

JUDGMENT

INTRODUCTION

1. Appellants filed this appeal on 3 October 2011 against ruling of the Master, delivered on 14 September 2011, subsequently sealed on 7 November 2011.
   
2. The Master in his ruling has struck off the plaintiff's Writ of Summons and awarded cost on indemnity basis in favour of the respondents.
   
3. On perusal of the file, it is noted that the Chief Registrar had advised the Appellant's solicitors on 1st December 2011 that the Appellants appeal had been deemed abandoned on the ground of non compliance with Order 59 Rule 17 (3).
   
4. Appellants filed a notice of motion dated 16 December 2011 and sought that the appeal deemed abandoned be re-instated and the ruling delivered on the 14 September 2011 be stayed pending appeal.
   
5. On the day of the hearing of the above applications, all counsel filed two sets of written submissions, in addition to the oral submission made in Court in relation to the issue of granting a stay pending appeal and whether the leave is required prior to filing an appeal.
   

BACKGROUND

6. The appellants initially commenced the same cause of action by way of originating summons before Justice Hettiarachchi in Action No. 236/2010 seeking following orders:-
   
   • (i) The defendant be restrained from setting disrupting or in any dealing with the said property until the hearing of and determination of the case and
     
   • (ii) Then the purported sale by the defendants be nullified on the ground of fraud and misappropriation.
     
7. Justice Hettiarachchi in his judgment dated 4 November 2011, ordered that the plaintiffs originating summon be dismissed, and the restraining order granted on 15 October 2010 be dissolved and the cost summarily assessed in the sum of $300 be paid to the defendant.
   
8. It is noted that before the delivery of the judgment in the action of 236/2010, the plaintiffs commenced the same action seeking similar reliefs by writ of summons, before the Master in the case of 331/2010 without any disclosure of the pending action no. 236/2010 in their writ of summons action.
   
9. Defendants in the action of 331/2010 before the Master filed a statement of defense with a counter claim and further filed summons to strikeout the plaintiff's writ of summons in pursuant to order 18 rule 18 of High Court Rules.
   
10. The ruling of the master dated 14 September 2011 to strikeout was mainly on the ground of abuse of court process. He also awarded cost on indemnity basis.
    
11. Two issues for consideration of the court are, whether the appeal deemed abandoned for non compliance could be reinstated and whether the ruling made by the master could be stayed or not.
    
12. It is clear on the perusal of the file that the appellants have considered the ruling made by Master on 14 September as final and thereby decided not to seek leave of the High Court.
    
13. It is could be further observed that the Chief Registrar had advised the appellants solicitors that appeal had been deemed abundant on the premise of non compliance with order 59 rule 17 (3).
    

Order 59 Rule 17 (3) states as follows:

"If this rule is not complied with, the appeal is deemed to have been abundant."

Order 59 Rule 8 states as follows:

8.-(1) An appeal shall lie from a final order or judgment of the Master to a single judge of the High Court.

(2) No appeal shall lie from an interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the High Court which may be granted or refused upon the papers filed.

14. In view of the above provisions of law, court has to now consider whether the ruling made by court falls within scope of 8(1) or 8(2) of Order 59.
    
15. In Gounder v Ministry of Health (2008) FJCA 40, Court of Appeal sets out clear guidelines to determine whether the order made by the court tantamount an order of interlocutory or final. Fiji Court of Appeal in addition to, setting out guidelines stated some example which could consider, as interlocutory applications. Such applications as per the said judgment are:-
    
    1. An application to stay proceedings;
       
    2. An application to strike out a pleading;
       
    3. An application for an extension of time in which to commence proceedings;
       
    4. An application for leave to appeal;
       
    5. The refusal of an application to set aside default judgment;
       
    6. An application for leave to apply for judicial review.
       
16. The instant application before this Court has arisen subsequent to an order made by the Master on an application to strike out pleadings leaving the determination of the Defendant's counter claim for vacant possession, mense profit and costs.
    

Order 15 rule 2(3) of High Court Rules, also states as follows:-

A counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed.

17. In view of the above it is my considered opinion that the application of the appellant requires leave in pursuant to order 59 rule 8 of the High Court Rules.
    
18. Appellant relied on the judgment of Jai Prakash Narayan v Sevita Chandra FJCA decision no. 37/1985 to establish that in the absence of answering affidavits of the Respondents that what the appellant has deposed is said to be true. Appellant relied in the paragraph of the judgment which states as follows:-
    

"............ in the circumstances of the case, in the absence of a reply we hold the inference inescapable that what the Respondent has said to be true .........."

19. Counsel for the Respondent submitted that issue for determination is an entirely a legal in nature and therefore they are entitled to raise an objection even without an affidavit.
    
20. The objection of the respondents, in pursuant order 59 rule 8 is necessarily a legal objection. Therefore, I am inclined to accept the position of the Respondents on the ground that a party to an action is entitled to take up any legal objection even without an affidavit in reply or answering affidavit.
    
21. Appellant in his submissions also relied upon several judgments to persuade court to exercise the inherent jurisdiction to re-instate the appeal which is deemed abandoned because of non compliance of order 59 Rule 17 (3). Appellant further relied on the judgment of Pathik J in the case of Carbon Industries (Fiji) Ltd & David Mcintyre Campbell v Australia and New Zealand Buildings Company Ltd & Brian John Murphy to establish that the objection raised is a mere technicality and "the rules are there to be obeyed, they are servants and not masters." However in my view, court is obliged to ensure the adherence of procedural law as same as substantive law. Issue before the court for determination is not a mere technicality. Requirement of seeking leave of the High Court prior to filing of an appeal is a vital statutory requirement and failure to comply with the requirement, in my view is fatal.
    
22. Inherent jurisdiction could only be exercised in situation where there is sufficient material to explain as to why the leave was not obtained by the appellant and the proposed application has sufficient merits.
    

Further there has to be clear evidence, that there had been an incorrect application of the law or where some substantial injustice will be caused to the appellant if the proposed application for reinstatement is not allowed.

23. It is evident from the facts that the 2nd Defendant has exercised its mortgagee rights due to the default in payments by the appellant for more than six months. The 1st Defendant was the successful purchaser of the property in question from the 2nd Defendant and is the registered owner. Appellants have not demonstrated to court with sufficient material that the proposed appeal has merits and good prospect of succeeding the appeal.
    

24. Upon consideration of the above, I am not inclined to allow the motion of the Appellants for a re-instatement of the appeal which is deemed to have been abundant.

25. In view of the above, determination of issue of stay of the ruling of the Master pending appeal does not arise.

ORDERS

1. Motion of the Appellant for re-instatement is struck out.

2. Cost summarily assessed of $1,000.00 each in favour of the Respondents is awarded.

3. Orders accordingly.

Susantha Balapatabendi
JUDGE

29.11.2012