Credit Corporation (Fiji) Ltd v Windsor Investment (Fiji) Ltd [2019] FJHC 678; HBC227.2015 (8 July 2019)

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IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

BETWEEN

CREDIT CORPORATION (FIJI) LIMITED a limited liability company having its registered office at 10 Gorrie Street, Suva.

PLAINTIFF

A N D

WINDSOR INVESTMENT (FIJI) LIMITED a limited liability company having its registered office at 164 Ratu Mara Road, Samabula, Suva.

FIRST DEFENDANT

A N D

RUSTAM ALI and SHAMSHAD BEGUM both of Leonidas Street, Lautoka (both Guarantors/Company Directors).

SECOND DEFENDANTS

Appearances : Mr R. Gordon for the second defendants/applicants
Mr J. Sharma for the plaintiff/respondent
Date of Hearing : 30 May 2019
Date of Ruling : 08 July 2019

[02] The second defendants/applicants (‘the defendants’) by a summons filed on 1 April 2019, in conjunction with the supporting affidavit of Rustam Ali, the first named second defendant (‘the application’) and seek the following orders:

[03] The plaintiff opposes the application and filed the affidavit of Tasleem Mohammed in opposition.

[04] The second defendant did not file any replying to the plaintiff’s affidavit in opposition.

[05] The claim against the defendants was discontinued at the pre-trial stage. After several adjournments, the defendants counterclaim was listed for trial on 18 and 19 March 2019. The second defendants were not present in Court and not ready to proceed with their counter claim. Their counsel sought an adjournment on the ground the first named second defendant was sick and she could not get instructions from him.

[06] Initially, application for adjournment was sought without a medical report. The Court asked the counsel for the second defendant whether she got any medical report to support her application. She then sought an hour adjournment which was granted. After an hour or so, when the matter was taken up, she tendered a sick sheet recommending rest, which was rejected by the Court. As a result, the Court refused the adjournment of the trial and asked the defendants to proceed with the Trial. Counsel appearing for the defendants then said she cannot proceed with the Trial as she is withdrawing from the matter.

[07] Then counsel appearing for the plaintiff sought dismissal of the counter claim on the ground that there was no case to answer. The court dismissed the second defendant’s counter claim. The second defendants now seek leave to appeal this order.

[08] The application is made under Order 3, Rule 4 and Order 35, Rule 2 of the High Court Rules 1988, as amended (‘HCR’) and under the inherent jurisdiction of the Court and section 12(2) (f) of the Court of Appeal Act and Rules 26(3) and 27 of the Court of Appeal Rules.

[09] The HCR, O 3, R 4, empowers the Court to extend or abridge the period within which a person is required or authorized by the HCR or by any judgment, order or direction, to do any act in any proceedings. Such an extension may be given, although the application for extension is not made until after the expiration of that period.

[10] Order 35, Rule 1 says any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on application made by that party within 7 days after the trial.

[11] Dealing with adjournment of trial, O 35, R 3 gives the discretion to the Judge to adjourn a trial in the interest of justice.

[12] The Court of Appeal Act (‘CA Act’), section 12 (2) so as relevant states:

(a) from an order allowing an extension of time for appealing from a decision;

(c) from the decision of the High Court or of any Judge thereof where it is provided by any enactment that such decision is to be final;

(d) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree;

(e) without the leave of the court or Judge making the order, from an order of the High Court or any Judge thereof made with the consent of the parties or as to costs only;”

[13] The Court Appeal Rules 1949, as amended (‘CAR’), R 26 (3) provides that: “wherever under these Rules an application may be made either to the Court below or to the Court of Appeal it shall be made in the first instance to the Court below.”

[14] The Court of Appeal Rule, R 27 says the period for filing and serving an appeal or an application for leave to appeal under Rule 16 may be extended by the Court below or by the Court of Appeal.

[15] The defendants intend to appeal the judgment/ruling of this Court on 18 March 2019. However, they did not attach to the application their proposed grounds of appeal.

[16] The second defendants (the defendants) seek more than one relief in their application, i.e. 1. To set aside the judgment/ruling of 18 March this year on the basis it was obtained in the absence of their presence, 2. Leave to appeal the judgment/ruling of 18 March and 3.Extension of time to appeal the judgment/ruling of 18 March.

[17] The court has the discretion to set aside a judgment given in the absence of a party acting under O 35, R 2. That rule provides:

“2 (1) Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just.

(2) An application under this Rule must be made within 7 days after the trial.” (Emphasis added).

[18] The defendants make application to set aside the judgment/ruling of this court (my ruling) delivered on 18 March 2019.

[19] The counterclaim made by the defendants was listed for two-day trial on 18 and 19 March 2019, following the plaintiff’s claim against the defendant was discontinued. When the trial was taken up on 18 March 2019, the defendants appearing by their solicitors, Iqbal Khan & Associates (Mr Iqbal Khan and Ms Sabrina Khan appeared for the second defendants on that day), made an application to adjourn the trial on the ground that Mr Rustam Ali (the first named second defendant) was sick and unable to move. Initially, that application was made without any medical report. When the court asked whether they got any medical report to support their application, counsel appearing for the defendant sought an hour adjournment, which was granted. After an hour or so, the matter was taken up again when a sick sheet was tendered by the defendants’ solicitors. After perusing the sick sheet and considering the nature of the illness, the court rejected the sick sheet and refused to adjourn the trial. The court then asked counsel for the defendants whether she can proceed with the trial, she replied that she cannot proceed with the trial. The court then dismissed the defendants’ counterclaim on the basis that there was no case to answer.

[20] Essentially, on 18 March the court made two orders. First, an order refusing the application to adjourn the trial (for appeal purpose, this is an interlocutory ruling). Second, an order dismissing the defendants’ counterclaim with costs to the plaintiff, upholding the plaintiff application for no case to answer.

[21] It is to be noted that the defendants do not seek leave to appeal the first order made refusing the application for adjournment of the trial. They only seek to set aside that ruling on the ground that it was made in their absence or seek leave to appeal it out of time.

[22] The ruling of 18 March 2019, delivered dismissing the defendants’ counterclaim was in the presence of both parties at the trial. The defendants were represented by counsel. This means they had appeared by their counsel. It is not a ruling obtained in the absence of the defendants. In terms of O 35, R 2, the court may set aside any judgment, order or verdict obtained where one party does not appear at the trial. O 35, R 2 has no application in the circumstance because the defendants appeared through their solicitors when the court made order dismissing their counterclaim for not adducing evidence in support of their counterclaim. Therefore, the application to set aside the ruling of 18 March is a misconceived one. I accordingly dismiss that application.

[23] The defendants alternatively seek leave to appeal out of time if leave is required the order made dismissing their counterclaim on 18 March.

[24] The order made on 18 March, dismissing the counterclaim of the defendants was for failure to adduce evidence in support of the counterclaim. Upon the refusing to adjourn the trial (of 18 and 19 March 2019), the court asked counsel for the defendants whether she can call any witnesses to support the counterclaim. Counsel for the defendants then informed the court that she was not ready to proceed with the trial. This meant that she was not in a position to lead evidence in support of the counterclaim. This prompted the plaintiff making an application for no case to answer. The court then, upholding the plaintiff’s application for no case to answer and for failure to prove the counterclaim, dismissed the defendants’ counterclaim with costs to the plaintiff.

[25] The dismissal order of 18 March was made in the presence of both parteis and after hearing both parties at the trial. Therefore, it a final order for appeal purpose. The defendants could have straight appealed that order, without leave, to the Court of Appeal within 6 weeks from the date of making the order.

[26] An appeal against a final order or judgment of the High Court must be filed and served within 6 weeks calculated from the date on which the judgment or order was made (see CAR, R 16 (b)).

[27] The ruling the defendants intend to appeal was made on 18 March 2019. The defendants had 42 days to appeal the ruling from 18 March 2019. The 42-day-period allowed for appealing the order expired on 26 April 2019.

[28] When filing this application on 1 April 2019, the defendants were within 42 days, the period allowed for appeal. As I said, they could have filed their appeal in the Court of Appeal directly, without seeking leave of this court to appeal, as it was a final order.

[29] The Court below (High Court) or the Court of Appeal may extend the period for filing and serving an appeal or an application for leave to appeal (see CAR, R 27).

[30] The governing principles for the granting for leave to appeal out of time include: (i) Length of delay; (ii) Reason for the delay; (iii) Chance of appeal succeeding if time for appeal is extended; and (iv) Degree of Prejudice to the Respondent if application is granted (See, Herbert Construction Company (Fiji) Ltd v Fiji National Provident Fund [2010] FJCA 3).

[31] It is to be noted that the application for leave to appeal has been within the appealable period of 6 weeks.

[32] The application for leave to appeal was an afterthought one. The affidavit in support does not explain why the extension of time is needed or does not explain the reason for the delay.

[33] The defendants simply blame their former solicitors for seeking extension of time for appealing. The defendants are not entitled to blame their former solicitors for the delay or envisaged delay. The defendants must take responsibility of what their former solicitors had done on their behalf. The blaming of the former solicitors for the delay is unacceptable.

[34] I cannot comment on the success of appeal if time for appeal is extended in the absence of the proposed grounds of appeal. The defendants must have attached their proposed grounds of appeal to their supporting affidavit to enable the court to assess the chance of appeal succeeding if time for appeal is extended.

[35] Mr Gordon of counsel appearing for the defendants submits that the defendants’ central proposed ground of appeal would be that the court had erred in allowing the plaintiff’s application for no case to answer application. He heavily relied on the case authority of Chand v Christian Mission Fellowship [2018] FJCA 16; ABU 0035.2016 (8 March 2018).

[36] In Chand (above), the trial judge upheld a nonsuit application made by the defendant at the conclusion of the plaintiff’s case and entered judgment in favour of the defendant, on appeal, the Court of Appeal held that the learned trial judge has erred by entering judgment for the defendant as per submission based on non-suit.

[37] In the present case, at the trial on the counterclaim, the defendants produced no evidence, oral or documentary, in support of their counterclaim, the court dismissed the counterclaim with costs upholding the no case to answer submission made by the plaintiff. Therefore, Chand’s case (which was decided on nonsuit application made at the conclusion of the plaintiff’s evidence) has no application to the present case.

[38] Nonsuit is a ruling by the judge in a lawsuit either when the plaintiff does not proceed to trial at the appointed time or has presented all his/her/its evidence or, in the judge's opinion, there is no evidence which could prove the plaintiff's case on the balance of probability. A nonsuit terminates the trial at that point, and results in a dismissal of the plaintiff's case and judgment for the defendant.

[39] No case to answer, in civil proceedings, the plea at the end of the plaintiff’s case that a prima facie case has not been made out and that the defendant should accordingly win.

[40] At the trial, the defendants offered no evidence at all in support of their counterclaim which was based on fraud. The court upheld the plaintiff’s submission of no case to answer, and on the basis that the defendants failed to produce evidence, oral or documentary, to establish their counterclaim, dismissed it with costs to the plaintiff. The defendants made an application to adjourn the trial which the court refused. After refusing the defendants’ application for adjournment of the trial, the court asked counsel for the defendants to produce evidence in support of their counterclaim. Then she said she could not proceed with trial. In the circumstances, the court had no alternative but to dismiss the counterclaim.

[41] In my opinion, chance of appeal succeeding on the chief proposed ground of appeal, if time for appeal is extended, is minimal.

[42] For the reasons I have set out above, I would refuse to grant leave to appeal out of time the ruling of 18 March 2019 delivered dismissing the defendants’ counterclaim. The defendants will pay costs of these proceedings, which I summarily assess at $750.00, to the plaintiff within 21 days of the date of this ruling.

Solicitors:
For the second defendants/applicants: Gordon & Company, Barristers & Solicitors
For the plaintiff/respondent: Janend Sharma Lawyers, Barristers & Solicitors

High Court of Fiji

Credit Corporation (Fiji) Ltd v Windsor Investment (Fiji) Ltd [2019] FJHC 678; HBC227.2015 (8 July 2019)