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High Court of Fiji |
IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA
HBM No. 33 of 2014
| | | (On Appeal from Lautoka High Court Civil Action No. HBM 33 of 2014) |
| BETWEEN : | RANGA SAMI GOUNDARof Saweni, Lautoka | |
| | APPLICANT | |
| A N D : | THE MANAGER, FIJI NATIONAL PROVIDENT FUNDof Naviti Street, Lautoka | |
| | 1st RESPONDENT | |
| A N D : | KANCHAN NARAYANformally of Suva but present address unknown | |
| | 2nd RESPONDENT | |
Counsel : Mr V Sharma for applicant
Ms A Rogovakalali for 1st respondent
No appearance for 2nd respondent
Date of Hearing : 29 February 2016
Date of Decision : 03 May 2016
D E C I S I O N
Introduction
[01] I have before me an application for extension of time to file notice of appeal and for stay pending appeal.
[02] By summons filed 30 December 2015 the applicant seeks the following:
[03]The application is supported by the Affidavit of RangaSami Goundar, the applicant.
[04] This application is made pursuant to Order 59 Rule 10 of the High Court Rules 1988, as amended (‘HCR’) and the inherent Jurisdiction of the Court.
[05]The respondent filed the affidavit of PeniGonelevu, Manager Employers on behalf of the 1st respondent in reply.
[06] The 2nd respondent neither appeared nor filed any opposition.
[07]At the hearing both parties made oral submission. In addition, they also filed written submissions.
Proposed grounds of Appeal
[08] The applicant intends, if leave granted, to rely on the following grounds of appeal:
Background
[09]Ranga Sami Goundar (‘the applicant’) filed an originating summons before the Master and sought orders:
[10]The applicant’s son EsogaranGoundar was a teacher. In February 2007 he got married a Kanchan Narayan, the nominal 2nd respondent. In May 2008 the High Court declared the marriage null and void on an application made by Manchan.
[11] He had nominated the 2nd respondent for his FNPF savings. However he did not change or cancel the nomination after the order of nullity of the marriage.
[12] From January 2008, Esogaran was residing with the applicant and his family after he felt sick. He (Esogaran) died on 13 January 2014 following discharge from the hospital.
[13] Kanchan did not communicate with Esogaran or his father or other family members. She did not attend the funeral or perform any funeral or post funeral rights.
[14] The applicant made application to 1st respondent (FNPF) to release the Esogaran’s savings to him as next of kin. The respondent refused his application and advised him that as per records Kanchan Narayan is the nominated beneficiary and that the nomination does not change get nullified after nullity of marriage.
[15] The applicant applied to court for an order that all the monies held in the FNPF Account of Esogaran under FNPF No.1305770 be paid out to him (applicant).
[16]The learned Master heard the application and by his order dated 17 September 2015 dismissed the application. In his order he stated
that:
“For the reason which I have endeavoured to explain, I have no doubt and I am clearly of the opinion that Section 57(4) of the FNPF Decree 2011 has no application even by any stretch of imagination to the instant case.”
[17] The applicant did not appeal the decision of the learned Master within the stipulated time. He now seeks leave of the court to file appeal the decision out of time.
The Law
[18]The Appellant has relied on Order 59 Rule 10 of the HCR which states:
‘(1) An application to enlarge the time period for filing and serving a notice of appeal or cross – appeal many be made to the Master before the expiration of that period and to a single judge after the expiration of that period.
(2) An application under paragraph (1) shall be made by way of inter-parte summons supported by an affidavit.”
[19] O.59, r.10, HCR need to be read with rule 9, which provides:
Time for appealing (O.59, r.9)
‘An appeal from an order or judgment of the Master shall be filed and served within the following period-
(a) 21 days from the date of delivery of an order or judgment;
(b) In the case of an interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.
Test for granting extension of time
[20]The governing principles for the granting of leave to appeal out of time are as follows:
(i) Length of delay;
(ii) Reason for the delay;
(iii) Chance of appeal eedicg if time for&# appeal160; is extenextended; and
(iv) Degree of Prejudice tothe Respondent if application is granti> v/b> v Fiji National Provident Fund [2010] FJCA 3; Miscellaneous Case 020 (3 February 2010), Kumar v Commissioner ofPolice, Fb>, Fiji Court of Appeal Civil Appeal NO. ABU 0059 OF 2004 (10 March, 2006), Nair v Prakash [2013] FJCA 147; Misc. Action 10.2011 (30 October 2013) &Tora v Housing Authority [2002] FJCA 16; ABU0036.2002S (15 November 2002))
Discussion
[21] The applicant has applied to court for leave to appeal the decision of the learned Master delivered on 17 September 2015,whereby the Learned Master dismissed the application made by the applicant stating that section 57 (4) of the FNPF Decree has no application to the case.
[22] An appeal from an order or judgment of the Master must be filed and served within 21 days from the date of delivery of an order or judgment, see O.59, r.9.
[23]Length of delay: - The judgment intended to appeal against was delivered by the Learned Master on 17 September 2015. The applicant has filed his application for enlargement of time to file appeal on 30 December 2015. The time allowed for filing appeal is 21 days of the delivery of the Master’s judgment. The applicant ought to have filed notice of appeal on or before 7 October 2015. The length of delay in this case is 2 months and 23 days. The delay has been substantial.
[24] The court may grant leave to appeal out of time despite the substantial delay if there is a ground of some merit.
[25] His Lordship Justice Calanchini, President of the Court of Appeal in Habib Bank Ltd v Ali’s Civil Engineering Ltd[2015]FJCA 47: ABU7.2014 (20 March 2015), where the delay was substantial being a period of a few days short of 8 months, observed (at page 7):
‘Therefore, in my judgment, this is a case where, despite the substantial delay and the alleged mistaken belief as to the status of the judicial officer, the appropriate test should be whether there is a ground of some merit that would justify allowing the appeal to go before the Court of Appeal. This test is not as generous as establishing that the appeal will probably succeed...’
[26]His Lordship Chief Justice Gates in Native Land Trust Board v Khan [2013] FJSC 1; CBV0002.2013 (15 March 2013) declined to grant an extension of time where the delay was over 3 months.
[27]Reason for the delay: - The applicant sets out the explanation for the delay in his affidavit in support. In paras 6 to 9 of the affidavit in support the applicant states:
...’
[28]The respondent (FNPF) filed an affidavit of PeniGonelevu (Manager Employers) in reply. In paras 15 and 16 of the affidavit in reply the respondent states:
‘...
16. THE Fund vigorously denied paragraph 12 of the Applicant’s Affidavit and says as follows:
(i) The Fund is bound by the provision of the FNPF Decree to release the FNPF funds to the 2nd Respondent. To allow the appeal application to succeed would greatly prejudice the Fund as it would compromise the powers and functions of the Board stipulated under the FNPF Decree.
(ii)Secondly, if the current application before the Court was to succeed, the Fund would be prejudiced in that any third party would follow suit from these proceeding and open a floodgate of unnecessary lawsuits of similar nature against the Fund. It could also follow that the 2nd Respondent may proceed to filing a lawsuit against FNPF for not complying with the law in failing to releasing the monies to her.
...’
[29] The applicant is 72 years old. He is suffering from diabetes mellitus. He states that during the months of September and October he was incapable of leaving his house as he was completely bed-ridden. The medical report dated 18 December 2015 (‘RS-1’) submitted to court confirms what he says. Dr Deo Narayan, Consultant Physician at Lautoka Hospital in the medical report certifies the applicant’s medical condition as follows:
‘This is to certify that Mr Gounder was admitted in the Lautoka Hospital during the period 08/11/15 to 20/11/15 with pneumonia. He also has underlying diabetes mellitus and heart condition.
He has been followed up in the clinic since after discharge from hospital, the last clinic being on 18/12/15.
During the mentioned period he went into acute confusional (sic) state and he was not in a position to sign any legal documents.
..,
[30] The 1st respondent’s affidavit in reply mostly deals with legal issues. It states that the deceased member had filed a nomination after he got married the 2nd respondent and that the nullity of the marriage between the deceased member and the 2nd respondent did not change the validity of the member’s nomination.
[31] I have carefully considered the explanation given by the applicant for the delay in appealing the Master’s decision. It is apparent the applicant at the age of 72 was incapacitated by his illness. This has been supported by a medical report. I am therefore satisfied with the explanation given for the delay.
[32]Chance of appeal&#ucceeding if time fime for appea0;is extended<: -The grounds of appeal raise some questions of law. Especially, proposed ground (d) invoin therpretation of sections 34 and 57 of the Fiji Nati National Provident Fund Decree 2011 ( (‘FNPFD’).
[33]The ground of appeal (a) calls upon the appellate court to decide whether the deceased member’s nomination is valid despite the fact that the nomination of the 2nd respondent as a spouse even after the nullity granted on 13 March 2008.
[34] Counsel for the applicant, Mr V Sharma submits that the 2nd respondent cannot be taken as to be the spouse or former spouse as any marriage or relation between the 2nd respondent and EsogaranGoundar was declared a nullity as of 13 March 2008. He also submits that the substantive action and claim carries a degree of public interest, whereby the interpretation of section 57 of the FNPFD is in question.
[35]Conversely, Ms Rogovakalali, counsel for the 1st respondent submits that leave to appeal out of time should be refused as the applicant failed to show that he has meritorious grounds of appeal that warrant appellate court’s consideration.
[36]Undoubtedly, proposed grounds of appeal raised some questions law that need to be considered by the court.
[37] Even hopeless appeal may be allowed to proceed where the area of law in question is the subject of considerable controversy, see Beedell v West Ferry Printers Ltd [2001] EWCA Civ 400, [2001] 1CR 962.
[38] Having carefully considered the proposed grounds of appeal, I am satisfied that they are meritorious. I am also satisfied that the grounds of appeal have real prospect of success.
[39]Degree of Prejudice to the Respondent if appionation is granted: - I now turn to the test whether the 1st respondent will be prejudiced if the application is granted.
[40 The applicant claims that he is entitled to the FNPF standstanding in the FNPF account of the deceased member, his son on the basis that the 2nd respondent’s nomination is invalid as a result of nullity of the marriage between his son and the 2nd respondent.
[41] The 2nd respondent is not interested in these proceeding though she was served with the summons. I have little doubt whether she is interested in claiming the fund. If she were really interested she would have appeared in court to contest the proceedings. Only the 1st respondent states that the 2nd respondent made a claim over the phone. The 1st respondent is unable to disclose any written claim made by the 2nd respondent as nominee.
[42] I do not think the 1st respondent will be prejudiced if the application to appeal outside the prescribed time is granted. The real dispute is between the applicant and the 2nd respondent, and not with the 1st respondent. Therefore, there is no question of any prejudice arising to the 1st respondent.
[43] The submission advanced by the 1st respondent that if the applicant was to succeed in the present application, this would greatly prejudice the Fund as it would compromise the powers and functions of the Board stipulated under the Decree has no merit.
Conclusion
[44]An application to extend time must be viewed by reference to the criterion of justice, and it is important to bear in mind that time limits are there to be observed, and that justice may be seriously defeated if there is any laxity in this regard. The length of delay in this case is 2 months and 23 days, which is a significant period of delay. The delay has been explained satisfactorily. The applicant was unable to instruct his solicitors to file an appeal due to his illness and subsequent hospitalization. The supervening event in combination forms exceptional circumstances. I have given particular weight to the prospect of success on appeal upon the proposed grounds of appeal. There is an issue of general or public importance. Further, there is no question of any prejudice to the 1st respondent. In the circumstances I would grant leave to appeal out of time. I direct the applicant to file and serve the notice of appeal within 7 days from the date of this ruling. I would order costs shall be in the appeal.
Final outcome
............................................
M H Mohamed Ajmeer
JUDGE
At Lautoka
3rd May 2016
Solicitors
For applicant: Messrs Vijay Naidu & Associates, Barristers & Solicitors
For 1st respondent: Legal Services Section, FNPF, Lautoka
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