Singh v Raju [2015] FJHC 757; HBC13.2014 (13 October 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA

Civil Action No. 13 of 2014

BETWEEN:

RAKESHKUMAR SINGH ofNacovi, Nadi, Businessman.
1st APPELLANT/PLAINTIFF

AND:

SARAS PURNIMA of Nacovi, Nadi, Businesswoman.
2nd APPELLANT/PLAINTIFF

AND:

SOHADAT ALIofNavua, Businessman
3rd APPELLANT/PLAINTIFF

AND:

GYNESHWAR RAJU of Navo, Nadi, Businessman
RESPONDENT/DEFENDANT

Before : Ajmeer, J
Counsel : Ms L Tabuakuro for appellant
Mr V Sharma

Date of Hearing : 23 July 2015
Date of Decision : 13 October 2015

DECISION

Introduction
[01] The petitioners seek leave to appeal the interlocutory decision of the learned Master of the 27th day of March 2015. The application appears to have been made pursuant to Order 59, rule 11 of the High Court Rules 1988, as amended ('the HCR').

[02] The petitioner relies on the affidavit of Abdul Islam sworn on 2 April 2015 and the affidavit of Abdul Islam in reply sworn on 25 May 2015 in support of the application.
[03] The respondent opposes the application and relies on the affidavit in opposition of Gyaneshwar Raju sworn on 7 May 2015.

[04] When the matter came on for hearing both parties agreed to file written submission in lieu of oral argument. Accordingly, the court granted 21 days for both party to file their relevant written submissions. However, only the respondent filed written submission. The appellant did not file any. The matter was adjourned for ruling on 28 August 2015. On that day when the matter came up for ruling counsel for the applicant made application and sought leave to file and serve the applicant's written submission in the course of the day. This application was not objected to by counsel appearing for the respondent. I considered the application and allowed the applicant to file and serve his submission in the course of the day.I reserved my ruling for another day. The applicant accordingly filed his submission at 10.47am on 28 August 2015.

Grounds of Appeal

[05] The proposed grounds of appeal as stated in the application are as follows:

1. That the Learned Master erred in law and in fact by taking into irrelevant facts in the application for re-instatement of the matter to the cause list.
   
2. That the Learned Master erred in law and in fact by exceeding his powers by striking out the Appellant's action with cost when the application before the Master was for re-instatement of matter to the cause list.
   
3. That the Learned Master erred in law in invoking Order 25 Rule 9 when there was no such application before the Court.
   
4. That the Learned Master erred in law and in fact refusing to accept the grounds for non-appearance by the Plaintiff whereby cost would have been a reasonable relief under the circumstances.
   
5. That the Appellants/Plaintiffs reserve the right to amend or file further grounds of appeal prior to the hearing of this application.
   

Background

[06] On 5 February 2014 the plaintiffs (the appellants in these proceedings) filed writ of summons together with statement of claim against the defendant (the respondent in these proceedings). The plaintiffs' claim against the respondent stems from a Sale of Agreement entered between the parties in May 2013. The plaintiffs through their solicitor filed a summons for direction. The summons for direction was issued by the court returnable before the Master on 23 September 2014. On that day there was no appearance for or by the plaintiffs. The defendant was represented by his solicitor. The Master granted orders in terms of summons for direction and adjourned the matter to 22 October 2014 to check on compliance. Again on 22 October 2014 there was no appearance for or by the plaintiffs. The defendant was represented by his solicitor. The Master ordered to take the matter off the cause list as it was second consecutive non-appearance by the plaintiffs. Then, on 20 December 2014 the plaintiffs filed an application to restore and reinstate the claim. The Master by his decision of 27 March 2015 dismissed that application with costs of $1,000.00 and struck off the whole action. The leave is sought to appeal the decision. The plaintiffs filed their leave application on 2 April 2015.

The Law

[07] O. 59, r.11 of the HCR has provision for leave to appeal an interlocutory judgment or order of a Master. That rule provides:

Application for leave to appeal (O.59, r.11)

11. Any application for leave to appeal an interlocutory order or judgment shall be madeby summons with the supporting affidavit, filed and served within 14 days of the delivery of the order or judgment.' (Emphasis added).

Governing Principles
[08] The governing principles that are relevant to an application for leave to appeal an interlocutory order are found in case authorities.

[09] In Totis Inc. Sport (Fiji) Ltd & Another vJohn Leonard Clark & Another, FCA No. 35 of 1996 Tikaram J stated:

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

Discussion

[10] The appellants seek leave to appeal the learned Master's interlocutory order delivered on 27 March 2015 striking out the claim.

[11] The application for leave to appeal an interlocutory of the learned Master must be filed and served within 14 days of the delivery of such order, see O.59, r.11 of the HCR.

[12] The learned Master delivered his order striking out the claim on 27 March 2015. The appellants have made their leave application on 2 April 2015. So, obviously the appellants have filed and served their leave application within the time prescribed (14 days) by rule 11. There was no dispute in this regard.

[13] On 22 October 2014 the matter was taken off the cause list as the plaintiffs failed to appear on two consecutive occasions. On 12December 2014, around 50 days after the matter was taken off the cause list, the plaintiffs filed an application for reinstatement of the matter back to cause list. The reinstatement application was argued. On 27 March 2015 the learned Master delivered his order. The order reads:

'(1) The plaintiff application for reinstatement filed on 10 December 2014 is dismissed.

(2) The whole action is struck off.

(3) The plaintiffs are ordered to pay costs of $1000.00 (summarily assessed) to the defendant which is to be paid within 14 days from the date hereof.'(Emphasis provided).

[14] The possible order that could be made in a reinstatement application is to either dismiss or allow such application. In this instance, the learned Master has struck off the whole action which is, in my opinion, not a possible order to be delivered in a reinstatement application.
[15] The whole action may be struck off in an application filed under O.25, r.9 of the High Court Rules which provides:

"(1) If no step has been taken in any cause or matter for six months then any party on application or the Court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court.

2) Upon hearing the application the Court may either dismiss the cause [or] matter on such terms as may be just or deal with the application as if it were a summons for directions.(Emphasis added)".

[16] One of the proposed grounds is that the Learned Master erred in law in invoking Order 25 Rule 9 when there was no such application before the Court.

[17] Indeed, there was no application before the learned Master filed under O.25, r.9 to strike out the claim for want of prosecution. But, nonetheless, the learned Master has considered extensively the principles and case authorities that are relevant to an application to strike out for want of prosecution.

[18] In an application for reinstatement, the learned Master could not have made order striking out the whole action. He could have dismissed the reinstatement application if he is not satisfied with the explanation offered by the plaintiffs for default of appearance.

[19] The circumstances are exceptional. I am unable to form a clear opinion adverse to the success of the proposed appeal.

Conclusion

[20] In my opinion there is prospect of success of the proposed appeal. I would therefore grant leave to appeal the interlocutory order of the learned Master delivered on 27 March 2015. As required by O.59, r.9 of the HCR, an appeal from the order of the Master is to be filed and served within 7 days from the date of the granting of leave to appeal. I would order the costs to be in the cause.

Final outcome

1. Leave is granted to appeal the interlocutory order of the learned Master delivered on 27 March 2015.
   
2. The proposed appeal is to be filed and served within 7 days of this ruling.
   
3. Costs shall be in the cause.
   

M H Mohamed Ajmeer
JUDGE

At Lautoka
13 October 2015