Swami v Wati [1997] FJSC 1; CBV0003D.1997S (29 August 1997)

Fiji Islands - Swami v Wati - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

IN CHAMBERS

CIVIL APPEAL NO. CBV0003 OF 1997
(Fiji Court of Appeal No. ABU0070 of 1995)

BETW/p>:

RAM SWAMY
ADI NARAYAN
APPELLANTS

AND:

PADMA WATI
RESPONDENT

Date of Delivery of Decision: 29 August 1997

Mr. C. B. Young for the Appellants
Mr. H. A. Shah for the Respondent

DECISION

Th

This is an application to file notice of appeal out of time.

On 3 November 1995, Sadal J gave judgment in favour of the respondent as the original plaintiff ordering the applicants to give immediate vacant possession of land occupied by them to the respondent. The land formed a small part of a much larger leasehold held by the respondent.

The applicants appealed to the Court of Appeal and, on 28 February 1997, it was dismissed. Prior to that, a stay of execution pending the appeal had been granted by the President sitting as a single judge. In his judgment he pointed out that the appellants had been living on the land since 1940 and had, in the meantime, made considerable improvements to the land including three dwellings "of a substantial and permanent nature".

Following the Court of Appeal decision, the applicants sought leave from the Court of Appeal to appeal to this Court. Although it is not on the documents before me, it is conceded by counsel for the respondent that the notice of motion was filed within the 42 day period required by Rule 5(4) and was accompanied by draft grounds of appeal.

The application was heard by the full Court of Appeal and it refused leave on 29 May 1997. Again the paper are not before me but, from that decision, it is clear leave was sought on two grounds; that it involves questions of general and public importance and also that it involves "a question respecting property or a right of the value of 20,000 dollars or upwards." The ground cites s.117(1)(b) of the Constitution which is in identical terms to s.8(1)(b) of the Supreme Court Decree.

The court dealt in some detail with the first ground and concluded the case does not involve matters of great general or public importance. It then passed to the second ground:

"The second ground upon which the Appellants rely for leave to appeal is based on s.117(1)(b). The affidavit of the second Appellant dated 5 March 1997 claims that the total value of these improvements are worth at least $100,000. However, the affidavit of the Respondent in reply dated 11 March 1997 claims that the Appellants value of $100,000 "¼ is a mere exaggeration". The Appellants have not put before the court any independent valuation to establish whether the matter in dispute is of a value of $20,000 or upwards nor whether it involves a claim to or a question respecting property or a right of the value of $20,000 or upwards. Whatever way the Appellant’s case is approached it appears that if they are entitled to some relief it would be in the nature of personal rights and could not be regarded as an interest in land. It is thus difficult to determine how any such rights should be valued. That however is not a matter for us though we record that if it should be of a value of $20,000 or upwards the Appellants do not need leave from this court of appeal.

In the course of his submissions Mr Young explained what he perceived as a dilemma viz. whether to apply to this Court for leave to appeal to the Supreme Court or in the alternative to appeal direct to the Supreme Court as of right based on the value of the property in dispute."

On 17 June 1997, the present application was filed, supported by affidavits and an independent valuation of the property occupied by the applicants. The total value placed on the land is 45,000 dollars and on the (now four) houses is 54,300 dollars. A plan put in evidence in the High Court was used by the valuer to identify the property.

Counsel for the applicants asks me to accept that valuation and to find, therefore, that there is an unfettered right to appeal under section 8(1)(b). If that is the case, he asks for leave to file out of time because he initially followed the wrong course and there has in any event been no unconscionable delay.

Mr Shah for the respondent, objects. He simply states the delay was the result of the applicants’ counsel’s mistake and he must, in effect, live with it. On the matter of the value, he points out he has had no time to challenge the valuation put in by the applicants. It would appear this is correct as, although the application was filed on 17 June, no date was allocated until 19 August and the papers not served until after that. However, he does not object to the manner of filing evidence of value so long as he has a proper opportunity to challenge it.

With the consent of counsel, therefore, I shall rule on the application to file notice of appeal out of time subject to the valuation being proved to be above the limit set in s.8(1)(b).

Three questions arise for consideration:-

How does the applicant prove value?

If the value is above the statutory minimum, is this a case covered by section 8(1)(b)?

Should the applicant have leave to file out of time in this case?

In many cases, the value of the matter in dispute or the property or the right has been a matter of evidence in earlier proceedings. In others, as in the present case, proof of the actual value was not relevant and so an appellant can point to nothing on the record to establish his right to appeal under section 8(1)(b). It would clearly be unjust if he was thereby prevented from proving the value. The procedure by which this may be done, however, does not appear to be covered by the Rules.

It seems to me the correct approach would be to file notice of appeal accompanied by affidavits as to value. In the event of dispute as to the value or as to whether it comes within the terms of section 8(1)(b), the respondent should seek leave to file affidavits in reply and then seek further directions from the court.

In the passage quoted above, the Court of Appeal questions whether the relief would be in the nature of personal rights and not an interest in land and refers to the difficulty of assessing the value of such rights.

This case involves the right of the applicants to continue to occupy land on which they have erected fixtures of very substantial value. As such, with respect, I would suggest it is a case that "involves, directly or indirectly, a question respecting property" and, if the valuation is correct, falls within the section.

Even if I am wrong on that, I am sure the value of the matter in dispute or of the right of the respondent to take possession of the land must be measured from the point of view of the applicants having to leave and give up their buildings. I have drawn support for that contention from the cases of Allan v Pratt [1888] UKLawRpAC 38; (1888) 13 App Cas 780, Lipshitz v Valero (1948) AC 1 and Meghji Lakhamshi v Furniture Workshop (1954) 1 All ER 273. An appellant only has to establish his entitlement under any one of the limbs of the section.

In deciding this question the court must consider the reasons for and the nature of the delay. I am satisfied the applicants showed a clear intention to appeal well within the period allowed by Rule 4(3) when they incorrectly included the question of the value in the application for leave and annexed draft grounds. I see no injustice in allowing them leave to file notice of appeal out of time.

In reaching a decision on this part of the application, the court should not consider the merits of the appeal as long as there are arguable grounds. There clearly are in this case and I should not consider the comments of the Court of Appeal on them.

The application to file notice of appeal out of time is allowed. Notice to be filed within 14 days.

Should the respondent dispute the value is sufficient for section 8(1)(b), he must file affidavits in reply within 28 days thereafter and fix a date to determine the issue.

With the consent of counsel for the respondent, the stay of execution will continue until the appeal or the determination of the value if that should be less than 20,000 dollars.

The applicants must pay the respondent’s costs of this application.

Mr. Justice Gordon Ward
Judge of the Supreme Court (Ex-Officio)

CBV0003D.97S