Habib Bank Limited v Raza [2013] FJHC 614; HBA53.2005 (27 September 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 53 of 2005

BETWEEN:

Habib Bank Limited
PLAINTIFF

AND:

Mehboob Raza
1st DEFENDANT

AND :

Mohammed Sahid Ali
2nd DEFENDANT

AND:

Mehboob Raza & Associates
3rd DEFENDANT

AND:

Horizon Travels Limited
4th DEFENDANT

COUNSEL : Mr. Muaror K for the Plaintiff
Mr. V Maharaj for the 1st and 3rd Defendants

Date of Judgment : 27 September 2013

JUDGMENT

1. This is an application for leave to appeal against the ruling of the learned Master dated 6 September 2011 by way of summons dated 14 September 2011, supported by an affidavit of Hement Kumar sworn on 14 September 2011.
   
2. The 1st and 3rd Defendant in their application by way of summons seeks the following orders from the Court pursuant to order 59 rule 11 of the High Court Rule 1998.
   
   • (a) "That all proceedings in this action be stayed pending the determination of the application and/or an appeal against the Ruling of the Honourable Master delivered on the 6 of September 2011.
     
   • (b) That leave be granted to appeal against the said Ruling of the Master.
     

Facts Briefly

3. The 1st and 3rd Defendant have sought leave of the Master to amend the Statement of Defence where the learned Master has directed the Defendants to file a supplementary affidavit annexing the proposed amended Statement of Defence. The Plaintiff filed its affidavit in reply of Alvina Ali on 20 August 2010.
   

The application was heard and ruling was delivered on 6 September 2011. Ruling made by the Master is as follows:

"(a) The amendments proposed in the paragraphs 42A, 42B, 42C and 42E of the said proposed amended Statement of Defense is allowed.

(b ) The amendment sought in the paragraph 42D is disallowed.

(c ) The 1st and 3rd Defendants to file and serve the amended Statement of Defense within 14 days.

(d ) The 1st and 3rd Defendant to pay a cost of $2000 to the Plaintiff within 14 days.

4. The 1st and 3rd Defendant in their instant application, seek leave of the court against the ruling wherein the learned Master refused an amendment sought in paragraph 42D of the proposed amended Statement of Defence and awarded costs against the 1st and 3rd Defendants.
   

The Determination

5. Order 59 rule 11 of the High Court Rules states as follows:
   

"Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment."

6. In the case of Rajendra Prasad Bothers Ltd v FAI Insurance (Fiji) Ltd 2002 FJHC 222; HBC 0295r. 2001s (9 August 2002) court sets out the basis to be considered in relation to leave to appeal against interlocutory order or decision.
   

It was held in:

"However, in the case before me it is my respectful view that the grounds for appeal are unmeritorious and there are no arguable legal issues of any importance which require some authoritative decision. I do not see how the applicant will be prejudiced if leave is refused. It will still have the opportunity to put its case fully before the court during the hearing of the substantive action. It will have the right of appeal if unsuccessful."

7. In the case of the Fiji Public Services Commission v Manunivavalagi Dalituicama Korovulavula FCA Civil Appeal No. 11 of 1989 court held:
   

"Whilst I am inclined to agree that Air Canada's case appears to be distinguishable. I must bear in mind that I am dealing with an application for leave to appeal and not with the merits of an appeal. It will therefore not be appropriate for me to delve into the merits of the case by looking into the correctness or otherwise of the order intended to be appealed against. However if prima facie the intended appeal is patently unmeritorious or there are clearly no arguable points requiring decision then it would be proper for me to take these matters into consideration before deciding whether to grant leave or not."

8. In the case of Totis Inc Spor (Fiji) Limited & Anor. V John Leonard Clark & Anor (FCA No. 35 of 1996 at 15 (as cited in Rajendra Prasad Brothers Ltd v FAI Insurances (Fiji) Ltd (supra) Tikaram J said:
   

"It has long been settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal. Courts have repeatedly emphasized that appeals against interlocutory orders and decisions will only rarely succeed. The Fiji Court of Appeal has consistently observed the above principles by principles by granting leave only in the most exceptional circumstances."

9. In the case of Kelton Investment Limited and Tappoo Limited and 1. Civil Aviation Authority of Fiji 2. Motibhai & Company Limited, Civil Appeal No. ABU 0034.1995, court held:
   

"The courts have thrown their weight against appeals from interlocutory orders or decisions for very good reasons and hence leave to appeal are not readily given. Having read the affidavits filed and considered the submissions made I am not persuaded that this application should be treated as an exception. In my view the intended appeal would have minimal or no prospect of success if leave were granted."

10. In the case of Fiji Electricity Authority v Balram & Others ([1970] 18 FLR p20)

Goudie J (High Court) in his judgment at p.21 said:

"An amendment to pleadings may be permitted by the court at any stage of the proceedings for the purpose of determining the real question in controversy and, if it can be made without injustice to the other should be allowed late, and however negligent or careless may have been the first omission."

11. In view of the above authorities leave will not be generally be given from an interlocutory order unless the court sees that some injustice will be done to the applicant.
    
12. On the authority of the Court of Appeal case of Reddy Construction Company Limited v Pacific Gas Company Limited (26 FLR 121), counsel for the applicants submitted that amendment be allowed.
    
13. It is clear that the following issues need to addressed by this court in determining the application of the applicants:
    
    • (i) Does the Defendant's application raise any arguable case to argue or any realistic prospect of succeeding on the appeal?
      
    • (ii) Does the Defendants' application raise exceptional circumstances?
      
14. In order to consider the 1st issue, this court needs to decide whether the amendment proposed in the Statement of Defence is required for the determination of the real dispute between the parties or not.
    

The real issue before the court is to determine whether the Plaintiff has any basis or cause of action to sue the Defendants for recovery of outstanding debts. In the proposed amendment in paragraph 42D is in relation to a taxation issue between the Plaintiff and the Fiji Island Revenue and Customs Authority. It appears that Fiji Island Revenue and Customs Authority has granted some concessions to the Plaintiff for bad debts which is entirely a distinct issue to the issue for determination before the court. As the learned Master has correctly held that the Tax and Revenue Policies of the Government has no effect on the liability of the debtor against any defaulter, irrespective of tax benefits received by the bank and such matters are in nature, is purely for accounting and regulatory purposes and or a matter of policy of revenue collection and has no bearing in the real dispute between the parties.

15. In the case of Peter Sujendra Sunder & Anor v. Chandrika Prasad Civil Appeal ABU 0022 of 1997 (as cited by the Learned Master) and which reflected Scott J's is comments when refusing leave. Scott J relevantly states as follows:
    

".... Generally, it is in the best interest of the administration of justice that the pleadings in an action should state fully and accurately and factual basis of each party's case. For that reason amendment of pleadings which will have that effect are usually allowed, unless the other party will be seriously prejudiced thereby (G.L., Baker Ltd. v. Medway Building and Supplied Ltd [1958] 1 WLR 1231 (C.A). The test to be applied is whether the amendment is necessary in order to determine the real controversy between the parties and does not result in injustice to other parties .... (Elders Pastoral Ltd v. Matt [1987] NZCA 18; (1987) 2 PRNZ 383 (C.A)).

16. In relation to the 2nd issue for determination which is the exceptional circumstances, it is also abundantly clear from the above reasoning that the applicants have not satisfied this court on any exceptional circumstances which warrants the intervention the ruling of the learned Master dated 6 September 2011.
    

Issues of Costs

17. The 1st and 3rd Defendants made an application to amend their Statements of Defence pursuant to order 20 rule 5 of the High Court Rules. Order 20 rule 5 of High Court Rules provides:
    

"5-(1) Subject to order 15, rule 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the Plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct."

18. In view of the above provisions, it is clear that the learned Master can exercise his discretion in awarding cost taking into account of the long delay in proposing an amendment to the Statement of Defence already filed.
    
19. The learned Master in his ruling on the issue of costs, stated as follows:
    

"Considering the long delay in bringing this amendments at the time it had concluded all the pretrial stages and the delay that would be inevitable due to the said amendment I will order a cost of $2,000.00 to be paid by the 1st and 3rd Defendants to the Plaintiff within 14 days."

20. The Defendants in their submissions pointed out the instances where the Plaintiff contributed for delay in pursuing its claim. It was further stated that costs should not be awarded as the learned Master has partly allowed the application for amendment of Statement of Defence, and no proper hearing on costs was given to parties before awarding costs.
    
21. In my view, the application before me is in relation to the refusal to amend paragraph 24D of the proposed Statement of Defence and the costs in relation to the ruling made by the Master. I am not inclined to consider the costs in relation to the previous ruling in this judgment and rulings are made on facts and circumstances relevant to the application before court at that time and the submission made thereto and further it is up to the parties to make an application for costs at the appropriate time. Further, order 20 rules 5 provides that the amendment if allowed is subject to costs or otherwise as may be just. Hence, the awarding of costs infavour of the Plaintiff is justified.
    
22. The application for leave to appeal has no merits and as such it ought to be refused with an order for costs to the Plaintiff by the 1st and 3rd Defendants in the sum of $1,500.00 to be paid within 14 days from the date of this judgment.
    

Susantha N Balapatabendi
JUDGE