Singh v Prasad [2002] FJSC 5; CBV0001.2002S (27 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: 27 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: 27 June, 2002

TRANSCRIPT OF ORAL RULING

Mr Mishra has submitted the petition ought to be dismissed for technical reasons. This is the ruling of the Court on that application. The objection is based on rule 15(4) of the Court of Appeal Rules which provides that in addition to being filed in the Court of Appeal, a Notice of Appeal shall be served upon the Chief Registrar of the High Court. There is no proof the Notice of Appeal was so served and we proceed on the assumption it was not.

Mr. Mishra submits that for various reasons this is the earliest opportunity there has been to raise this issue. Bearing in mind this case in its various aspects has been before the Court of Appeal before the President of this Court on an application for stay of execution, and now for 2 days before this Court, there is some difficulty with this proposition. Be that as it may the essential point is that the omission, if such it was, has not resulted in any prejudice to the first respondent, a point Mr Mishra accepts. By virtue of Rule 46 of the Supreme Court Rules the Court of Appeal Rules apply with necessary modifications to the practice and procedures of this Court. Rule 64 of the Court of Appeal Rules provides that non-compliance on the part of an appellant with rules shall not prevent the further prosecution of the appeal if the Court considers the non- compliance was not wilful and the same may be waived or remedied by amendment or otherwise. We have no reason to think the non-compliance in this case was wilful. Accordingly we propose to waive the non-compliance. It is unnecessary to give any consequential directions and we deal with Mr Mishra’s objection accordingly.

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