Kunanitu v Madhavan [2021] FJHC 125; HBC166.2018 (25 February 2021)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 166 of 2018

BETWEEN

AISAKE KUNANITU of Laqere, Nasinu, WILLIAM GREEN KUNANITU of

Lot 1 Tokai, Matana Street, Nakasi, KINI TUIDRIVA of Suva and

JIOSEFATI VAKALOLOMA of Suva, Ministers of Religion and

Trustees of the Evergreen Christian Centre

Assemblies of God International.

FIRST – FOURTH PLAINTIFFS

AND

EVERGREEN CHRISTIAN CENTRE ASSEMBLIES OF GOD INTERNATIONAL

a Religious Body registered pursuant to the Religious Bodies Registration Act

[Cap 68] and having its principal place of business located at Joyce Place

(off Piling Road), Laqere, Nasinu.

FIFTH PLAINTIFF

AND

PHILIP SATYANAND MADHAVAN of Suva, Minister of Religion and

Trustee for the General Conference of

The Assemblies of God of Fiji.

FIRST DEFENDANT

AND

PITA CILI of Suva, Minister of Religion and Trustee for the

General Conference of The Assemblies of God of Fiji.

SECOND DEFENDANT

AND

VILIAME VAKASAUSAU of Suva, Minister of Religion and Trustee for the

General Conference of The Assemblies of God of Fiji.

THIRD DEFENDANT

AND

PRITAM SINGH of Suva, Minister of Religion and Trustee for the General

Conference of The Assemblies of God of Fiji.

FOURTH DEFENDANT

AND

THE GENERAL CONFERENCE OF THE ASSEMBLIES OF GOD OF FIJI a Religious

Body registered pursuant to the Religious bodies Registration Act and

having its principle place of business at 85 Robertson Road, Suva.

FIFTH DEFENDANT

Counsel : Ms L. Jackson for the Plaintiffs

Ms. F. Fa for the Defendants

Date of Hearing : 01^st February 2021

Date of Ruling : 25^th February 2021

RULING

(On the application for leave to appeal)

[1] The defendants on 14^th May 2020 filed this summons pursuant to Orders 32(1) and 33(3) of the High Court Rules 1988 to have the following issues determined as preliminary issues:

1. Whether:
   • (i) The 1^st – 4^th plaintiffs as former members of the 5^th defendant by virtue of their voluntary actions to sever ties with the 5^th defendant on 25.09.11 and to set up their own church outside the 5^th defendant are entitled to lay beneficial claim in law to the church properties, in particular CT 13441 being Lot 36 on DP No. 3291 and CT 13442 being Lot 37 on DP 3291 and any improvements thereon, used by the 1^st – 4^th plaintiffs being members of a local church under the 5^th defendant?
   • (ii) The 5^th plaintiff, a church set up by the 1^st – 4^th plaintiffs on 10.12.13 outside and independent of the 5^th defendant’s Constitution, is entitled to lay any beneficial claim in law to the church properties, in particular in particular CT 13441 being Lot 36 on DP No. 3291 and CT 13442 being Lot 37 on DP 3291 and any improvements thereon, used by the 1^st – 4^th plaintiffs being members of a local church under the 5^th defendant?
2. That in the event that the court finds in favour of the defendants in matter set out paragraphs 1(i) and (ii) above, the defendants seek orders that the plaintiffs claim be dismissed forthwith, with costs on an indemnity basis.

[2] This court heard the application and decided to determine the above two issues at the hearing of the substantive mater.

[3] The defendants being aggrieved by the decision of this court seeks leave to appeal on the following grounds:

1. That the learned Judge erred in law and in fact in refusing the defendants application made under Order 33 rule 3 of the High Court Rules 1988 for the determination of the preliminary issues as the defendant had satisfied the requirements of the Rules.
2. That the learned Judge had failed to discern that from the pleadings before the court (which were closed) did not disclose any material factual dispute which required a hearing through the provisions of witnesses as the only issues in dispute were legal issues that the defendant had identified as preliminary issues.
3. That the learned Judge had erred in law and in fact in accepting that, the plaintiff had raised other issues in its pleadings that required a separate trial to the preliminary issues raised by the defendant.
4. That the learned Judge erred in law and in fact n failing to discern that the preliminary issues raised by the defendants favour would bring the whole proceedings to an end and there would be no other issues before the court for determination.

[4] The plaintiffs instituted these proceedings seeking the following reliefs:

(a) An injunction restraining the defendants whether by themselves or their agents or servants or otherwise from proceeding to execute the Order of the Master of Suva High Court made on 15 February 2018 in Civil Action No. 39 of 2016 and Civil Action No. 40 of 2016 and taking possession of and evicting the plaintiffs from the properties situated at Joyce Place (off Pilling Road), Laqere, Nasinu contained in Certificate of Title No. 13441 being Lot 36 on Deposited Plan No. 3291, Viti Levu, Naitasiri and Certificate of Title No. 13442 being Lot 37 on Deposited Plan No. 3291, Viti Levu, Naitasiri, respectively until the final determination of the Plaintiff’s claim herein:

(b) An injunction restraining the defendants whether by themselves or their agents or servants or otherwise from selling, transferring, assigning, charging, mortgaging, encumbering, or otherwise alienating or otherwise dealing with properties situated at Joyce Place (off Pilling Road), Laqere, Nasinu contained in Certificate of Title No. 13441 being Lot 36 on Deposited Plan No. 3291, Viti Lev, Naitasiri and Certificate of Title No. 13442 being Lot 37 on Deposited Plan No. 3291, Viti Levu, Naitasiri, respectively until the final determination of the Plaintiff’s claim herein;

(c) A declaration that the fifth plaintiff is the rightful beneficial owner of properties situated at Joyce Place (off Pilling Road), Laqere, Nasinu contained in Certificate of Title No. 13441 being Lot 36 on Deposited Plan No. 3291, Viti Levu, Naitasiri and Certificate of Title No. 13442 being Lot 37 on Deposited Plan No. 321, Viti Levu, Naitasiri, respectively;

(d) An Order that the defendants transfer the properties situated at Joyce Place (off Pilling Road), Laqere, Naisnu contained in Certificate of Title No. 13441 being Lot 36 on Deposited Plan No. 3291, Viti Levu, Naitasiri and Certificate of Title No. 13442 being Lot 37 on Deposited Plan No. 3291, Viti Levu, Naitasiri, respectively to the First, Second, Third and Fourth Plaintiffs to hold in trust for the Fifth plaintiff;

(e) OR IN THE ALTERNATIVE TO (C) AND (D), compensation for monies expedited by the members of the Fifth Plaintiff paid towards the purchase price of the properties, the improvements thereon and the furniture, fixtures and fittings in the sum of $1,018,000.00 (One Million and Eighteen Hundred Thousand Dollars);

(f) Costs of this action on a solicitor/client basis; and

(g) Any such further order this Court deems just, fit and expedient.

[5] In the decisions cited below the law on leave to appeal interlocutory orders have been discussed at length.

In Kelton Investment Ltd & Tapoo Ltd v Civil Aviation Authority of Fiji and Motibhai & Company Limited Civil Appeal No. ABU 0034 of 1995 the Court of Appeal observed as follows;

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. I am also of the view that the Applicants will not suffer an irreparable harm if stay is not granted.

In the case of Ex parte Bucknell [1936] HCA 67; (56 CLR 221 at page 224) it was held:

At the same time it must be remembered that the prima facie presumption is against appeals from interlocutory orders, and, therefore, an application for leave to appeal under section 35(1)(a) should not be granted as of course without consideration of the nature and circumstances of the particular case. It would be unwise to attempt an exhaustive statement of the considerations which should be regarded as a justification for granting leave to appeal in the case of an interlocutory order, but it is desirable that, without doing this, an indication should be given of the matters which the court regards as relevant upon an application for leave to appeal from an interlocutory judgment.

In Dunstan v Simmie & Co Pty Ltd 1978 VR 649 at 670 it was held:

“....although the discretion to grant leave cannot be fettered, leave is only likely to be given in a case where the determination of the primary issue puts an end to the action or at least to a clearly defined issue or where, to use the language of the Full Court in Darrel Lea (Vic.) Pty Ltd v Union Assurance Society of Australia Ltd., [1969] VicRp 50; (1969) V.R. 401, substantial injustice would result from allowing the order, which it is sought to impugn, to stand.”

The learned counsel in this regard cited the decision in Niemann v. Electronic Industries Ltd. [1978] VicRp 44; [1978] V.R. 431 at page 441 where Supreme Court of Victoria (Full Court) held as follows:

".....leave should only be granted to appeal from an interlocutory judgment or order, in cases where substantial injustice is done by the judgment or order itself. If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to affect a substantial injustice by its operation.

It appears to me that greater emphasis is therefore must be on the issue of substantial injustice directly consequent on the order. Accordingly if the effect of the order is to change substantive rights, or finally to put an end to the action, so as to effect a substantial injustice if the order was wrong, it may be more easily seen that leave to appeal should be given.

In the case of Khan v Suva City Council [2011] FJHC 272; HBC406.2008 (13th May 2011) the following observations were made in regard to applications for leave to appeal;

It is trite law that leave will not generally be granted from an interlocutory order unless the Court sees that substantial injustice will be done to the applicant.

Further in an application for leave to appeal, it is incumbent on the applicant to show that the intended appeal will have some realistic prospect of succeeding.

[6] It appears from these decisions the appeal from interlocutory orders are discouraged by the court. In the instant matter no injustice whatsoever could be caused to the defendants since the substantive matter is yet to be heard. The court made order that the two preliminary issues raised by the defendants would be tried at the hearing of the substantive matter and they will not be deprived of their right to challenge the decision of this court in a final appeal. On that ground alone the defendants’ application for leave to appeal must fail.

[7] Order 33 rule (3) of the High Court Rules 1988 provides;

The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and party of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

[8] Order 33 rule 3 does not confer power on the parties to dictate terms on the court as to the manner in which it should conduct proceedings before it. It only confers discretion on the court to try issues as preliminary issues of law. This question has been discussed in many previous decisions which I cited in my ruling sought to be challenged in appeal. However, I will reproduce those decisions below for ease of reference. All these decisions support the contention that the control of proceedings is a matter for the judge.

[9] In the case of Ernster v Denarau Corporation Ltd [2016] FJHC 55; Civil Action 45.2011 (5 February 2016) Tuilevuka J held:

The general rule is that all questions of law and fact in any given case must be tried together at the trial.

In Bidesi v Public Trustee of Fiji [1975] FJCA; [1975] 21 FLR 65 (25 July 1975) the Court of Appeal held:

An order for the trial of some issues before others should, however, only be made in “exceptional and extraordinary cases” or where the Judge has serious reason to believe that the trial of the issue will put and to the action – per Jessel M.R. in Piercy v. Young [1880] UKLawRpCh 32; 15 Ch. D 475 at 480.

Naqa v Fiji Electricity Authority [2005] FJHC 704; HBC0237.2002 (22 February 2005) Winter J held:

The rule of law defines that courts exist for the finalizing of disputes between litigants and that in reaching that goal justice must be served. Litigants are not entitled to the uncontrolled use of a judge’s time. Order 33 Rule 3 and 4 allow the court to isolate any particular issues or questions for separate trial thus eliminating or reducing the delay and expense in determining an entire matter where a preliminary decision might be decisive of the litigation.

Ashmore v Corp of Lloyd’s [1992] 2 All ER 486 the House of Lords made the following observations:

The control of proceedings was always a matter for the trial judge and the parties were not entitled as of right to have their case tried to a conclusion in such manner as they thought fit and if necessary after all the evidence had been adduced and could have no legitimate expectation that such a course would be followed.

[10] The learned counsel for the defendants submits that in Rev. Sairusi Kamanalagi Sooeta & Ors v Rev. Paula Tikoinakau High Court Civilon No. 261 of 1992; Civil Appeal No. 21 of 1993 a similar question was decided by the CourtCourt of Appeal and this court is bound by the that decision. There is no doubt that this court is bound by the decision of the Court of appeal.

[11] However, in this matter that is not the only issue for determination at the hearing. It appears from the statement of claim that the plaintiffs’ claim is based not only on proprietary estoppel but also on constructive trust which cannot be decided on submissions alone. The court needs evidence to decide whether there is a constructive trust in existence. Since the both claims are based on same facts it is convenient for the parties to have them tried at one hearing.

[12] For the above reasons the court makes the following orders.

ORDERS

1. The application for leave to appeal is refused.
2. The defendants are ordered to pay the plaintiffs $2500.00 ($500.00 each) to the plaintiffs within 30 days from the date of this ruling.
   

Lyone Seneviratne

JUDGE

25^th February 2021