Native Land Trust Board v Khan [2013] FJSC 1; CBV0002.2013 (15 March 2013)

SUPREME COURT OF FIJI
Civil Appeal

CBV0002.2013 [On appeal from Court of Appeal No. ABU0005 of 2010]
[On appeal from the High Court, No. HBC 34.2005L]

NLTB

V

Ahmed Khan and Anor.

27th February, 15th March 2013

Gates, President

RULING

Mr C. Tuberi for the Petitioner
Mr A. Narayan for the Respondents

[1] The petitioner seeks enlargement of time within which to lodge a petition for Special Leave. The notice of motion was filed on 13th February 2013. The decision of the Court of Appeal which is sought to be impugned was delivered on 28th September 2012. The 42 days period within which the lodging of the petition was to have been made under the Rules [Rule 6 Supreme Court Rules 1998] expired therefore on 9th November 2012. When the motion was filed, the petition was out of time by 96 days, that is over 3 months.

[2] The question of jurisdiction of the Supreme Court in such an application has been dealt with in Eddie McCaig v Abhi Manu (unreported) CBV0002.12, 27th August 2012. That matter is presently on appeal to the Full Court. However it is unlikely that the observations in paras [5]-[10] of the ruling will be unsettled.

Principles to be applied

[3] In applications of this kind appellate courts consider five factors to ensure a principled approach to the exercise of a judicial discretion. Those factors are:

(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?

Reason for the failure

[4] The application was supported by the affidavit of Inoke Lutumailagi filed with the notice of motion. Mr Lutumailagi, himself a lawyer employed by the petitioner, stated that a Senior Legal Officer from the Head Office in Suva Mrs Macedru had conducted the case in the Court of Appeal. The decision was handed down on 28th September 2012. The deponent said that Mrs Macedru had resigned on 22nd October 2012. That was not strictly accurate for Mrs Macedru had given in her letter of resignation on 24th September 2012.

[5] The deponent exhibited a letter from the Manager Human Resources of the petitioner dated 26th September 2012 accepting Mrs Macedru's resignation. Mrs Macedru resigned 4 days before the Court of Appeal had delivered its judgment.

[6] The deponent had incorrectly referred to the exhibiting of "a copy of the resignation letter" ie: the one written by Mrs Macedru, not the one accepting the resignation of Mrs Macedru written by the Manager Human Resources, which was the letter actually tendered in evidence. "The resignation letter" was a misdescription. Care must be exercised in naming or describing a document. This was not a mere inaccuracy. What was said in the affidavit was incorrect.

[7] The Manager Human Resources' letter stated "We would also appreciate a handover brief from you on the outstanding work that needs attention." It is not known whether such a handover brief was ever compiled or handed to the General Manager or anyone else responsible for litigation work in the petitioner's Head Office. No affidavit was filed by the departing Senior Legal Officer at Head Office to say what she had done on the file after her resignation had been tendered.

[8] The deponent went on to state [para 4]:

"I was promoted to Senior Legal Officer on 1st October 2012 when Mrs Macedru tendered her resignation and I am responsible for the administration of the petitioner litigation files thereafter." [Emphasis added].

[9] So on the deponent's own evidence, the deponent took over the case from Mrs Macedru from 1st October 2012. Mrs Macedru's notice came to an end on 22nd October 2012 according to the petitioner's letter accepting the resignation.

[10] Potentially both incoming and outgoing counsel could have played a part in briefing a senior officer of the petitioner on what needed to be done if there were to be an appeal or what had already been prepared by way of a further appeal. The affidavit fails to state what had happened in this regard, and in particular, why a petition was not lodged at that time.

[11] On 26th November 2012 the Respondents' solicitors wrote a "without prejudice" letter to the petitioner. This was 17 days after the time permitted for the petitioner to appeal had passed. Not surprisingly the Respondents in their affidavit in opposition have not exhibited such a letter. It is not relevant to this application.

[12] In such circumstances, where a potential petitioner is contemplating an attempt at settlement, a petition nonetheless should be lodged and an appeal initiated within time. Settlement talks could proceed parallel to the interlocutory steps of the appeal. If having exhausted settlement talks, the petitioner only then files its petition, the fact of settlement talks having been considered, or engaged in, would not found a proper reason for enlargement of time.

[13] The deponent went on to explain that the file came to his attention on 3rd January 2013 when he received instructions from the petitioner's Manager North Western Region, Mr Masi. Those instructions were to draft a response to the Respondents' solicitor's letter of 26th November 2012. The deponent said he prepared the required response.

[14] He said of that letter and his action "this is my initial involvement in the case and it was the first action taken on the file after Mrs Macedru's resignation." Nothing is said of any decision by the petitioner then or earlier to take the Court of Appeal's decision on appeal. Nor does he say whether he tendered any advice with regard to appeal or appeal time limits. Nor is anything said of what system was being maintained in the Legal Department to note and mark appeal time limits, whether on the computer or whiteboard or in any other way.

[15] Present counsel for the petitioner commenced as Manager Legal for the petitioner on 3rd January 2013. Mr Tuberi would clearly need some time in order to acquaint himself with all pending matters and specially those matters on appeal. Nothing is said in the affidavit of the quantity of litigation files handled or of how many were on appeal in the Court of Appeal or Supreme Court.

[16] The Manager North Western Region wrote a letter to the Respondents' solicitors on 3rd January 2013. In it Mr Masi referred to instructions from the petitioner's General Manager seeking a personal meeting with Mr Narayan. He requested the Respondents' solicitors not to take any further action on the matter until that meeting could take place. He did not mention the petitioner's intentions with regard to further appeal. By 3rd January 2013 it can be concluded that not only Mr Lutumailagi, but also the General Manager were fully aware of their position with regard to this file.

[17] Mr Masi's letter asking "to give us time to consider your offer", and "that you take no further action on this matter" seem to be addressing the issue of enforcement of the fruits of appellate success in the Court of Appeal. Nothing is said of proceeding further on appeal whilst considering a settlement offer.

[18] Quite properly the incoming Manager Legal gave a summary of the case to date to the General Manager and briefed him on the appellate decision. That internal memorandum is dated 18th January 2013. The case was coming up before the Master for assessment of damages. Again nothing is said of any proposed appeal to the Supreme Court.

[19] Mr Narayan wrote two letters, 18th January 2013 and 22nd January 2013 giving dates and times of his availability in Suva to discuss the settlement.

[20] Whether or not there was in existence an efficient system of reporting the progress of cases to senior decision makers and of noting appeal expiry dates in the petitioner's Legal Unit is not clear. Nothing has been placed before me as to when the decision was taken to proceed with a further appeal to this court. On the evidence supplied it appears to have been a very late decision, in which case inefficiencies in the Legal Unit might not have had any bearing on the failure to make timely lodgment of the petition.

[21] It is more likely that there was a misunderstanding in believing that time would not run "by consent". Whilst solicitors may agree that the successful party will hold off on enforcement of the judgment, this is very different from agreeing that time limits on appeal could also be frozen by agreement. Time limits for appeal arise from a statutory framework providing for appeal within certain limits. They are not modifiable by consent of the parties. The potential petitioner must bring him or herself within the rules in order to initiate a valid appeal.

[22] Having allowed the appeal period to lapse, the would be petitioner has to seek the indulgence of the court to exercise a discretionary relief to permit a late appeal: Gatti v Shoosmith [1939] 3 All ER 916.

[23] The cause of the lateness in lodging the petition has not been adequately or fully explained. One is left with the conclusion as I have already stated that it was thought the appeal could be held off whilst settlement talks took place. However the ball had already been dropped by the non-lodgment of the petition prior to 9th November 2012. Settlement talks came up subsequently.

[24] It is necessary in order to enliven the court's discretion in the applicant's favour that the would-be petitioner condescend to particulars in the supporting affidavit so as to explain the true reason for the lapse.

[25] In Minister of Tourism and Transport v Tower Insurance (Fiji) Ltd and 3 Others (unreported) Civil Appeal ABU0032.01 12th November 2001 Byrne J gave some guidance on what condescending to particulars might entail [pages 5-6]:

"Has there been a satisfactory explanation for this delay? In my judgment there has not. I consider the affidavit of Ajay Singh deficient in many relevant respects of which I consider some to be the following:

(1) The affidavit does not say who put the file away in the filing cabinet.

(2) Nothing is said of what became of the Memorandum and the Ruling.

(3) Nothing is said about whether the Solicitor-General's office has a system of maintaining diary notes.

(4) Nothing is said about who is responsible for maintaining records. If there is any such person no explanation is given as to how and why the practice was overlooked in this case.

(5) Nothing is said as to how the oversight or misunderstanding was brought to the attention of Ajay Singh.

(6) What prompted him to make enquiries with the Registry only on the 8th of June 2001? Why had he not previously made such an enquiry?"

[26] I find the reasons advanced in the instant case inadequate, and the delay has not been satisfactorily explained.

Length of delay

[27] The delay here is over 3 months. In Ahilya Sharma & Anor. v Mahendra Pratap Singh (unreported) Civil Appeal ABU0027.03S, 11th November 2004 the Court of Appeal when considering an application for enlargement of time within which to file an application for leave to appeal to the Supreme Court said (pp7-8):

"An intending appellant to the Supreme Court who is faced with an adverse judgment of this court must act with promptitude."

[28] In Ahilya Sharma, the court considered 40 days "a significant period of delay", and refused to extend time. The lateness was only 11 days in Avery v No. 2 Public Service Appeal Board and Others [1975] 2 NZLR 86, yet when considering the whole history of the matter, leave was refused. The appeal was 47 days late in Latchmi v Moti [1964] 10 Fiji LR 138 at p.147B, and leave was rejected.

[29] But then in Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449 the delay was 6½ months. Though it was felt prejudice would occur to the Respondent, leave was granted. There had been considerable difficulty and delay in obtaining legal aid assistance for the appeal. In Gatti's case leave was given since there had been a very short delay, a few days only, and notice had already been given to the Respondents' solicitors.

[30] Every case turns on its own special facts, though the principles for approaching such applications remain the same and all must be weighed.

Whether a ground of merit justifying consideration

[31] The grounds sought to be raised in the petition before the Supreme Court are:

"i) That the Panel of Judges erred in law and in their findings at paragraph 24 of their Judgment that there has been a proper and effective service of the writ of summon;

ii) That the Panel of Judges erred in law and in fact in their interpretation and application of Section 22(1) and Section 24(1) of the iTaukei Land Trust Act, Cap 134; Order 10, Rule 1(2)(a) of the High Court Rules 1988; and section 2(6)(b) of the Interpretation Act, Cap. 7;

iii) That the Panel of Judges erred in law and in fact in not applying Order 10, Rule 1(3)(b) of the High Court Rules 1988 and not require the Respondent to file affidavit of service;

iv) That the Panel of Judges erred in law and in fact in finding that the High Court Judgment was regular

v) That the Panel of Judges erred in law and in fact in their findings by not holding the Land Owning Unit wrong and liable for intervening and obstructing the Applicant from issuing the lease to the Respondent."

[32] Ground (iv) depends on and is contained also within Ground (i). Ground (v) appears to be outside of the grounds raised before the Court of Appeal and is unlikely to succeed. Whether or not there was a viable case against the landowners is not relevant to the issue as to whether the petitioner as the Trustee representing the landowners in the leasing of their land was also liable to the Respondents.

[33] Ground (iii) is unlikely to succeed or to meet the threshold requirements for Special Leave.

[34] Grounds (i) and (ii) are arguable and could justify consideration by the court.

Is there a ground which is likely to succeed?

[35] Grounds (i) and (ii) are concerned with how service is to be effected on the petitioner. In the High Court, Inoke J had held that the default judgment obtained by the Respondents would not be set aside. There had been a failure by the petitioner to file an Acknowledgment of Service. A NLTB litigation clerk had explained the failure in her affidavit by saying that she was only aware of the writ "when I cleaned up a tray used by our former Senior Legal Officer who had resigned from our Lautoka office." Service had been effected on the petitioner's General Manager on 21st July 2006, and the discovery of the writ next by the litigation clerk was on 11th September 2006.

[36] By the governing statute for the petitioner all service is to be effected on the Secretary of the Board [section 22(1) of the Native Land Trust Act Cap 134]. Inoke J considered the issue of good and proper service and also whether the petitioner had a good defence on the merits. He found on both issues in favour of the Respondents.

[37] Having carefully considered the judgment of Inoke J and that of Suresh Chandra JA in the Court of Appeal, I find that the two grounds do not have "a real prospect of success." Both judgments set out what is standard law on setting aside applications and their conclusions are unremarkable, indeed inevitable.

[38] Even with the service issue, the reasoning of both judges is sufficiently sound to make it highly unlikely that the threshold criteria of section 7(3) would be met. Though of some significance to the petitioner and its users, it is not an issue of great general or public importance. It being clear that the General Manager of the petitioner was served, even if not the Secretary, there is little merit in such a narrow technical point. Access to the court and to justice for the petitioner was available in these circumstances.

If time enlarged, will the Respondents be prejudiced?

[39] The 2nd Respondent Mohammed Yusuf Khan, the son of the 1st Respondent filed an affidavit in reply. The litigation concerning their claim has taken some time. On 6th December 2004 prior to the expiry of their original farm lease, they applied to the petitioner for its renewal. Litigation commenced on 12th July 2006 with the issue of the writ. Judgment by default was entered on 21st September 2006, and the ruling dismissing the petitioner's application to set aside was delivered on 23rd September 2009.

[40] The Respondents argue that they have been deprived of the fruits of their litigation for a very long time. They have now lost their farm and the deponent said he was instead running a small canteen to provide for his family. If they succeed in the Supreme Court damages are still to be assessed by the Master.

[41] This is the second error within the petitioner's office affecting the case and its progress. Undoubtedly there will be prejudice overall to the Respondents' interests if the discretion is excercised in the petitioner's favour.

Conclusion

[42] Whilst I accept that there will be prejudice caused to the Respondents in granting indulgence to the petitioner, I find the petitioner has failed to establish the necessary foundations for granting that indulgence. This is a case where, taking all matters together it would be right to decline to enlarge time. I therefore decline the application and award costs to the Respondents summarily assessed at $1,500.

A.H.C.T. Gates
President

Solicitors for the Petitioner : Legal Department, iTLTB, Suva
Solicitors for the Respondents : Messrs A.K. Lawyers, Ba

Cd : www.judiciary.gov.fj