Singh v Prasad [2002] FJSC 4; CBV0001.2002S (25 June 2002)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
CIVIL APPEAL NO. CBV0001 OF 2002S
(Court of Appeal Civil Appeal No. ABU0006/02s)

BETWEEN:

PREM SINGH
[Petitioner]

AND:

KRISHNA PRASAD
[First Respondent]

RUPENI NACEWA
[Second Respondent]

WALTER RIGAMOTO
[Third Respondent]

Coram: Rt. Hon. Sir Thomas Eichelbaum, Presiding Judge
Rt. Hon. Dame Sian Elias
Hon. Justice Bryan Beaumont

Hearing: 25 June, 2002, Suva

Counsel: Messrs. D. S. Naidu, R. Singh and S. Krishna for the Petitioner
Messrs V.M. Mishra and R. Prakash for the First Respondent
Mr. S. Banuve for the Second and Third Respondents

Date of Ruling: 25 June, 2002

TRANSCRIPT OF ORAL RULING
(PRELIMINARY POINTS)

Mr.Mishra on behalf of the first respondent has taken four preliminary points on which the judgment of the Court is as follows.

The first matter raised was that counsel for the petitioner, Mr Naidu, had sworn the affidavit verifying the petition seeking leave to appeal to this Court. In the remarks we are about to make we do not intend to place any gloss on the decisions of the Court of Appeal which deal with the question of the circumstances in which counsel in a case may make an affidavit. The Court is of the view however that while there is no absolute rule prohibiting counsel from making an affidavit, it is generally speaking not good practice to do so, if only for the reason that it encourages the taking of points of this kind. In the present case the affidavit verifying the petition essentially is a formality and we do not consider there is any merit in the point.

The second matter raised, distinct from the first, is that in any event the affidavit verifying the petition ought to be signed by the petitioner him or her self. There is no rule to that effect and we do not consider that is the law. The petition must be verified by a person who is in a position to attest to the facts, but beyond that there is no rule as to the person who must make the affidavit. This point therefore fails.

The third issue is that in the first respondent’s submission the petition is repetitive and not sufficiently succinct and in these respects is in breach of the rules governing the conduct of applications for leave to this Court. This objection in our view fails on the facts and has no substance or merit.

The final point is that the judgment against which it is sought to obtain leave to appeal is not a final judgment of the Court of Appeal in terms of section 122 of the Constitution. As to that point we can say now that in our view the appeal is not to be characterised as an interlocutory appeal. The question whether or not the judgment is a final judgment in terms of section 122 overlaps with one of the issues of substance taken on the application for leave to appeal and cannot be dealt with as a preliminary issue. Accordingly we reserve our judgment on the fourth point and it will become subsumed in the argument on that issue on the application for leave itself.

Rt. Hon. Sir Thomas Eichelbaum,
Presiding Judge of Supreme Court

Rt. Hon. Dame Sian Elias
Judge of Supreme Court

Hon. Justice Bryan Beaumont
Judge of Supreme Court

Solicitors:

Messrs. Patel and Sharma, Nadi for the Petitioner
Messrs. Mishra Prakash and Associates, Ba for the First Respondent
Office of the Attorney-General Chambers, Suva for the Second and Third Respondents