Hussein v National Bank of Fiji [2003] FJSC 12; CBV0003.2002S (23 October 2003)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
CIVIL APPEAL NO. CBV0003 OF 2002S
(Fiji Court of Appeal Civil Action No. ABU0066 of 1998S)

BETWEEN:

ABDUL KADEER KUDDUS HUSSEIN
Petitioner

AND:

NATIONAL BANK OF FIJI
Respondent

Coram: Hon Justice Robert French – Judge of Supreme Court
Hon Justice Kenneth Handley – Judge of Supreme Court
Hon Justice Mark Weinberg – Judge of Supreme Court

Hearing: Thursday, 23rd October 2003, Suva

Counsel: Mr. A.K. Singh for the Petitioner
Mr. S. Parshotam for the Respondent

Date of Judgment: Thursday, 23rd October 2003

JUDGMENT OF THE COURT

This is an application for special leave to appeal from the decision of the Court of Appeal of 22/11/01 in an action for possession brought by the bank as mortgagee against its mortgagor, the petitioner. The jurisdiction of this Court to grant special leave to appeal from the decision of the Court of Appeal in a civil matter is defined by s.7 of the Supreme Court Act 1998. This Court must not grant special leave unless the case raises a far reaching question of law, a matter of great general or public importance, or a matter that is otherwise of substantial general interest to the administration of justice. (Section 7(3)).

An application by the petitioner to the Court of Appeal under s.121(2)(a) of the Constitution for leave to appeal from the decision of 22/11/01 was refused on 26/2/02.

The petitioner set out in his petition 10 grounds which were said to support the grant of special leave. Many raised questions of fact which are not grounds for special leave. Those grounds which did raise questions of law were without substance. The petitioner complains that the Court of Appeal wrongly refused him a longer adjournment. Their reasons for judgment show that they fully considered this application. Their decision was a discretionary one in a matter of practice and procedure which could rarely, if ever, attract the grant of special leave from this Court. In this case no basis for the grant of special leave on this ground has been shown. Litigants in Fiji do not have a constitutional right to an adjournment. While mortgagees and their solicitors should comply with Order 88 dealing with mortgage actions, Order 2 provides in Rule 1 (1) that non-compliance with the rules does not nullify the proceedings. In any event the grounds based on Order 88 seem to be directed to the proceedings before Fatiaki J. (as he then was) and not the proceedings before Scott J. which are the proceedings at first instance which are now relevant. Other grounds relate to alleged failures by the bank to exercise its rights under other securities, but it is established law that a creditor owes no duty to a surety to exercise its powers under its securities. See China and South Seas Bank Ltd. v. Tan [1989] UKPC 38; [1990] 1 AC 536. The remaining grounds do not call for special mention.

In these circumstances the petition must be dismissed with costs.

Hon Justice Robert French
Judge of Supreme Court

Hon Justice Kenneth Handley
Judge of Supreme Court

Hon Justice Mark Weinberg
Judge of Supreme Court

Solicitors:

A.K. Singh Law, Nausori for the Petitioner
Messrs. Parshotam and Company, Suva for the Respondent