Nath v Bhan [1979] FJSC 65; Civil Appeal 13 of 1977 (8 June 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction

Civil Appeal No. 13 of 1977

BETWEEN

RAM NATH s/o Bhari
(Appellant

AND

CHANDAR BHAN s/o Khem Karan
Respondent

G.P. Shankar, Council for the Appellant
Mr. S.D. Shau Khan, Council for the Respondent

JUDGMENT

This was an appeal against the judgment of the Magistrate in Ba given on 10/8/77. On that day the magistrate heard the sole evidence of the respondent (then plaintiff) who was then cross-examined by counsel for the Appellant (then defendant). The appellant was not present, the Magistrate refused counsel's request for an adjournment; and in the absence of any defence gave judgment for the plaintiff (now respondent).

The appellant sent a letter to the Magistrate dated 7/9/77 asking for a retrial, claiming that he had been misled by his counsel's clerk as to the date of hearing. This letter was later put in the form of an affidavit as the basis for an appeal against the decision in the Magistrate's Court.

There is no supporting affidavit from his counsel or his clerk substantiating his claim that he had been misled as to the date of the hearing. The record of the proceedings in the Magistrate's Court is quite clear. There were a number of appearances before the court by counsel for both parties. Defendant was always represented and on 11/5/77 before both counsel the case was set down for hearing on 10/8/77. On 10/8/77 there was no application for further adjournment until after the close of the plaintiff's case, when counsel for the appellant said the appellant had been present at court that morning and sought an adjournment because presumably the appellant was no longer present. Not surprisingly, particularly since he was busy, the magistrate declined an adjournment and in the absence of any defence gave for the then plaintiff.

The plaintiff's claim was for an order of possession against the appellant of a home site forming part of Crown Land, 4/1/1648 - 1497 known as Farm No. 1497 and lot 56, of which the plaintiff held title under a Crown lease, the appellant having been given notice to vacate.

The defence denied the plaintiff's title to the land in question and put him to strict proof of it.

At the hearing before the Magistrate the plaintiff did prove his title to the land in question – namely Crown land, 4/1/1648 - 1497 known as Farm No. 1497 and lot 56 C.T. 7822 and the appellant was ordered to vacate it.

In his grounds of appeal the appellant does not refer to the then plaintiff’s proof of his little to land in question and the only relevant ground that he offers is that he believes that the land he occupies is beyond the plaintiff’s boundaries. Well if that is so then he won’t be affected by the judgement since that specifically orders him to vacate Crown land 4/1/1648 - 1497 known as Farm No. 1497 and lot 56 C.T. 7822, but in so far as he is occupying any of this land he should vacate it.

Appellant’s counsel has referred me to the case of Hayman v. Rowlands (1957) 1 A.E.R. 321 but that case was quite different and there were good grounds shown why the judge who tried the case at first instance should not have given the judgment he did give. In this case, not only has the appellant failed to give a convincing reason for his non-appearance at the trials, but he has also failed to show any good or reasonable grounds for defending the action.

The appeal is therefore dismissed with costs.

(G.O.L. Dyke) (sgd)
JUDGE

LAUTOKA,
8th day of June, 1979

Messrs. G.P. Shankar & Co. for the Appellant
Messrs. Sahu Khan & Sahu Khan for the Respondent

Date of Hearing 1st day of June, 1979