Cakau v Waqairawai [2023] FJHC 156; HBC131.2019 (3 March 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 131 of 2019

BETWEEN: LAWRENCE CAKAU of Lot 72, Ratu Dovi Road Nadera.
1^ST APPELLANT

SOKOVETI CAKAU of Lot 72, Ratu Dovi Road Nadera.
2^ND APPELLANT

AND: TORIKA NASILASILA WAQAIRAWAI as sole Executor and Trustee of the Estate of the late JOANA RAILALA CAKAU a.k.a JOANA CAKAU a.k.a JOWANA RAILALA of Bukshi Street, Samabula, Suva, Bank Officer.

RESPONDENT

BEFORE: Hon. Justice Vishwa Datt Sharma

COUNSEL: Mr. Betakula I - For the Appellants

Ms. Tikoisuva N o/i of Shekinah Law- For the Respondent

DATE OF DECISION: 03^rd March, 2023 @ 9.30am

DECISION

[Notice of Motion to amend the Notice of Inter-Parte Summons of 1^st and 2^nd Appellants to add the Appellants Grounds of Appeal and adduce fresh Evidence to the Appellants Notice of Inter-Parte Summons filed on 07/01/22]

Introduction

1. On 07^th January 2022, the 1^st and 2^nd Appellants filed a Notice of Inter-Pate Summons and sought for the following orders:-
   
   • (i) That the Appellants be allowed to extend the time of Appeal of the Order pronounced on 05/03/20 by Acting Master in Civil Action No. HBC 131 of 2019,
     
   • (ii) That the Appellants shall within 21 days of the filing of the Notice of Appeal, file and serve Summons returnable before a Judge for directions and hearing of the Appeal.
     

Upon the grounds set forth in the Affidavit of SOKOVETI CAKAU filed herein.

2. However, subsequent to the Notice of Inter-Parte Summons filed on 07^th January 2022, the 1^st and 2^nd Appellants filed another Notice of Motion on 25^th February 2022 to Amend the Inter-Parte Summons already filed on 07^th January 2022 and sought for the following additional orders:
   
   • (i) That the Appellants be allowed to add their grounds of Appeal and to adduce Fresh Evidence to the Appellants Notice of Inter-Parte Summons filed on 07/01/22 against the Order pronounced on 05/03/20 by Acting Master on Civil Action No. HBC 131 of 2019.
     

Upon the grounds set forth in the Affidavit of SOKOVETI CAKAU filed herein.

3. In totality, the 1^st and 2^nd Appellants altogether sought for Four (4) orders in their Notice of Motion therein as follows:-
   
   • (a) The Extension of time to Appeal the Order of 05^th March 2020 delivered by the Master of the High Court.
     
   • (b) The Appellants to file and serve their Notice of Appeal within 21 days.
     
   • (c) The 1^st and 2^nd Appellants be allowed to add their grounds of Appeal; and
     
   • (d) To adduce further Fresh Evidence to the Appellants Notice filed on 07^th January 2022 against the order of 05^th March 2020.
     
4. The applications hereinabove are made pursuant to order 59 Rule 10, Order 59 Rule 17 and Order 20 Rule 5 (1) of the High Court Rules 1988 and the inherent Jurisdiction of this Honourable Court accordingly.
   
5. The issue here is ‘whether the 1^st and 2^nd Appellants had filed their Notice of Appeal as was required of them in terms of the timeframe stipulated by Order 59 Rule 9 of the High Court Rules, 1988 and ‘whether the Appellants are now seeking the enlargements of time period for filing and serving a Notice of Appeal within the time period’ in terms of Order 59 Rule 10 of the High Court Rules, 1988.
   

Analysis and Determination

6. Order 59 rule 10 provides;
   
   • (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.”
     
7. It will be noted herein that the 1^st and 2^nd Appellants failed to file any Notice of Appeal against the Master’s Judgment delivered on 5^th March 2020 within the 21 days’ time frame as stipulated in Order 59 Rule 9 of the High Court Rules 1988.
   
8. Therefore, if the 1^st or 2^nd Appellants did not file any Notice of Appeal in terms of Order 59 Rule 9 of the High Court Rules 1988, then they may make an application for an enlargement of time in terms of Order 59 Rule 10 (1) of the High Court Rules, 1988 accordingly.
   
9. Once if the Notice of Appeal was filed, within the given time frame allocated in the High Court Rules 1988, then there would have been no issue of enlargement of time to file a Notice of Appeal regarding the decision of the Master delivered on 05^th March 2020.
   
10. The Master’s Judgement was delivered on 05^th March 2020 and no Notice of Appeal was filed by the 1^st and 2^nd Appellants against the Judgment of the Master within the stipulated time frame in the High Court Rules.
    
11. In absence of any Notice of Appeal herein, the 1^st and 2^nd Appellants are seeking for the “Extension of the time of Appeal” instead of enlargement of time period for filing and serving a Notice of Appeal” in terms of Order 59 Rule 10, [O,59 R 10] of the High Court Rules, 1988.
    
12. Reference is made to Order 59 Rule 17 of the High Court Rules, 1988 which sets out the procedural aspect of the filing of an Appeal against the Master’s Judgment.
    
13. However, the Rule was not complied with by the 1^st and 2^nd Appellants and hence in terms of Order 59 Rule 17 [O59, R 17], the appeal is deemed to have been abandoned if the said Rule has not been complied with. [O 59, R 17(3) refers].
    

Delay

14. Further, the Judgement by the Master was delivered on 05^th March 2020 and the 1^st and 2^nd Appellants filed their first Inter-Parte Summons some 2 years later on 07^th January 2022 and subsequently filed a second Notice of Motion to Amend the first notice of Inter Parte Summons filed on 07^th January 2022 to seek addition of Grounds of Appeal and adduce Fresh Evidence.
    
15. The delay in filing the Inter-Parte Summons has been explained by the 2^nd Appellant to the Court. The 2^nd Appellant stated in her affidavit that she was aware that the time to appeal the Master’s decision had lapsed. However, she was served late with the master’s orders late (annexure C refers). She further stated that she was not heard by the master on 05^th March 2020 and were unaware of the hearing since they were not served with any notices.
    
16. However, the explanation tendered by the 2^nd Appellant is unsatisfactory and unacceptable to this court since the set down court rules must have been adhered to and complied with and not to be defied the same unnecessarily.
    
17. This court also notes from the court record that both Appellant (Defendants) never appeared in Court after service of the initial Originating Summons and the adjournments thereafter until the Decision was finally delivered by the Master on the substantive Originating Summons on 05^th March 2020 accordingly.
    
18. Hence, I find that the delay is inordinate on the part of the 1^st and 2^nd Appellants.
    

In Conclusion

19. There is no notice of Appeal filed and this court has no Appeal on foot.
    
20. Therefore, there is no opportunity for the 1^st and 2^nd Appellants to seek the “Extension of time” if the Appeal is already deemed abandoned in terms of Order 59 Rule 17 of the High Court Rules 1988.
    
21. Likewise, the second Inter-Parte Summons filed subsequently on 25^th February 2022 and has nexus with the Initial Inter-Parte Summons filed seeking Amendment to add their Grounds of Appeal and adduce further evidence dated 07^th January 2022 accordingly fails.
    

Costs

22. Both applications proceeded to full hearing.
    
23. It is only fair and appropriate that this Court accordingly grants a Summarily Assessed Costs against the 1^st and 2^nd Appellants at the total sum of $750.
    

ORDERS

(I) The 1^st and 2^nd Appellants Inter-Parte Summons filed on 07^th January 2022 and subsequently on 25^th February 2022 are accordingly dismissed.

(II) The 1^st and 2^nd Appellants to pay the Respondent a total sum of $750 as Summarily Assessed Cost.

Dated at Suva this 03^rd day of March , 2023.

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

Vishwa Datt Sharma

JUDGE

CC: RAIKANIKODA & ASSOCIATES, SUVA
MESSRS SHEKINpAH LAW, SUVA