Shah v Khan [2022] FJHC 168; HBC244.2020 (5 April 2022)

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

Civil Action No. HBC 244 of 2020

BETWEEN:
HAROON ALI SHAH of Vuda Point, Lautoka, Retired

Plaintiff

AND:
IFTIKAR IQBAL AHMED KHAN of Lautoka, Barrister & Solicitor, operating as IQBAL KHAN AND ASSOCIATES, a law firm of 7 Yasawa Street, Lautoka.
First Defendant

AND:
SUMAN SHALINI DEVI formerly of Razak Road, Lautoka, but now of 130 Kerrs Road, Wiri, Auckland, New Zealand, Resource Manager.
Second Defendant

AND:
REPEKA NASIKO, the Reporter, Western Division, Fiji Times Pte Limited, Vidilo Street to Tukani Street, Lautoka
Third Defendant

AND:
FRED WESLEY, the Editor, Fiji Times Pte Limited, 177 Victoria Parade, Suva.
Fourth Defendant

AND:
THE FIJI TIMES PTE LIMITED a limited liability company having its registered office at 177 Victoria Parade, Suva.

Fifth Defendant

Counsel: Mr. Lutumailagi for the plaintiff/applicant
Ms. Sadrata for the defendant/respondent

RULING ON PAPER

1. By an Inter-Partes Notice of Motion filed on 12 April 2021, the plaintiff seeks the following Orders:
   
   • (i) That leave be granted to appeal out of time the Order of Master Azhar dated 06 November 2020.
     
   • (ii) That leave be granted to appeal the Order of Master Azhar dated 01 April 2021.
     
2. The application is made under Order 59 Rules 10 and 11 of the High Court Rules 1988 and under the inherent jurisdiction of the Court.
   
3. In the supporting affidavit sworn on 09 April 2021, Haroon Ali Shah deposes as follows at paragraphs 2,3,4,5 and 6:
   
   2. THAT the 2^nd Defendant resides overseas and my application to serve outside jurisdiction was dismissed by the Master.
   3. THAT I then applied for leave to issue a concurrent Writ of Summons. The principal reason being that on the front of the Writ the standard time frame for responding is 14 days and in the case of the 2^nd Defendant it should be 42 days.
   4. THAT I attach herein and mark as annexures “HAS1”and HAS2”respectively the application referred to in paragraphs 2 and 3 hereinabove.
   5. THAT the Learned Master dismissed the said application saying that Order 6 of the High Court Rules had not been complied with.
   6. THAT I seek leave to appeal the said decision and attach herein my proposed grounds of Appeals and mark the same as annexures “HAS3” and “HAS4” respectively.
      
4. By a Summons dated 08 February 2020, the first defendant had applied for an Order to strike out the plaintiff’s claim against the first defendant on the ground that it discloses no reasonable cause of action.
   
5. The application was made under Order 18 Rule 18(1) (a) of the High Court Rules 1988.
   
6. The 06 November 2020 Order was where the Learned Master had ruled against the Plaintiff’s ex-parte application seeking leave to serve the second defendant by way of registered post or by direct personal service at her address in Auckland, New Zealand. The Master had simply “refused to make order in terms of the Ex Parte Motion as the plaintiff breached Order 6”.
   
7. The Master had reasoned as follows:
   

“..The 2^nd defendant resides overseas. Hence, the plaintiff didn’t obtain leave before issuing the writ. It is a defect/irregularity which can’t be cured”

8. It appears that following the above, the plaintiff then filed on 01 April 2021 an ex-parte Notice of Motion pursuant to Order 6 Rules 1 and 5 and Order 11 of the High Court Rules 1988 seeking the following Orders:
   
   1. THAT leave be granted to issue a concurrent Writ of Summons as per the proposed concurrent Writ of Summons attached to the affidavit of the Applicant.
   2. THAT leave be granted to serve the issued concurrent Writ of Summons out of jurisdiction by way of registered Post to the address of the second defendant as shown on the said Writ of Summons.
      
9. On 01 April 2021, the Learned Master refused to grant leave. His reasoning, as I gather from the Court records, are as follows:
   
   • (i) Order 6 Rule 5 allows the Court to issue concurrent writ at the same time of issuing original writ of transfer before original writ ceases to be valid.
   • (ii) However, the original writ was null due to failure of the plaintiff to follow the mandatory provisions in Order 6 Rule 6 of the High Court Rules.
   • (iii) The plaintiff therefore can’t circumvent that irregularity with Order 6 Rule 5.
   • (iv) Therefore, the leave to issue concurrent writ is refused.
     
10. The parties were directed to file written submissions and I was to rule on paper. Only the plaintiff has filed written submissions. The first defendant has not bothered to file any submissions.
    
11. The governing principle for leave to appeal out of time were succinctly stated by Ajmeer J in Whittaker v Bank of the South Pacific Ltd [2018] FJHC 140; HBC155.2009 (28 February 2018)
    

[12] The governing principles for the granting of leave to appeal out of time are as follows:

“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 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; Miscellaneous Case 020.2009 (3 February 2010), Kumar v Commissioner of Police, 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)).”

12. Order 59 Rule 8(2) states as follows:
    

‘8(1) .......................

(2) No appeal shall lie from an interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the High Court which may be granted or refused upon the papers filed’

13. Order 59 Rule 9 (a) and (b) provide as follows:
    

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.

14. Order 59 Rule 10 provides as follows:
    

(1) An application to enlarge the time period for filing and serving a notice of appeal or cross-appeal may 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 an inter parte summons supported by an affidavit.

15. Order 59 Rule 11 states as follows:
    

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

16. I find that the affidavit filed in support of the applications does not address the points which Ajmeer J has set out in Whittaker. Accordingly, I refuse the application seeking leave to appeal out of time the Order of Master Azhar dated 06 November 2020.
    
17. As for the application seeking leave be granted to appeal the Order of Master Azhar dated 01 April 2021, I observe that the Order in question is an interlocutory order and that the application has been filed within the 14 day requirement under Order 59 Rule 11. However, the application relies on the same affidavit which does not address the principles. I dismiss this application as well.
    

............................

Anare Tuilevuka

JUDGE

05 April 2022