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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI
AT SUVA
CIVIL APPEAL NO: CBV 0008 of 2014
(On appeal from the Judgment of the Court of Appeal in ABU 32 of 2010]
BETWEEN:
CHANDAR SEN
Appellant
AND:
MOHAMMED SAMSUDEAN SAHU KHAN
Respondent
Coram : Hon. Justice Sathyaa Hettige, Justice of the Supreme Court
Hon. Justice William Calanchini, Justice of the Supreme Court
Hon. Justice Almeida Guneratne, Justice of the Supreme Court
Counsel : Ms. S. Nayacalevu and Ms. L. Vaurasi for the Petitioner
Mr. M. A. Khan for the Respondent
Dates of Hearing : 9 and 17 April, 2015
Date of Judgment : 23 April, 2015
JUDGMENT
Justice Sathyaa Hettige
[1] I agree with the reasoning and conclusions of the judgment of Almeida Guneratne J.
Justice William Calanchini
[2] I agree with the reasoning and the conclusions of Guneratne J.
Justice Almeida Guneratne
[3] When this appeal was taken up for hearing on 9 April 2015, two matters arose which required us to make preliminary rulings in respect of the same.
[4] While Counsel for the Appellant moved for an adjournment of the hearing, Counsel for the Respondent, in addition to objecting to the said application for an adjournment moved that, the appeal be rejected and/or dismissed in limine on the basis that, the written submissions which were required to be filed in terms of the relevant court rules had not been filed by the Appellant within the stipulated time under those rules.
Preliminary Ruling
Re: The Application for an Adjournment
[5] The present appeal had been filed on 8 July, 2014 and subsequently on 24 February 2015 the matter had been listed for hearing on 9 April 2015.
[6] By an affidavit dated 2 April, 2015 (received at the Registry on 8 April, 2015) the Appellant has moved that the said date of hearing be vacated.
Reasons urged in the Affidavit Seeking an Adjournment
[7] (i) That, his Counsel in the High Court and the Court of Appeal, Mr. Mishra, had advised him to get another Counsel as he has been specifically mentioned by the Court of Appeal in its judgment.
(ii) That, the Lautoka branch of Mr. Mishra's law firm has given notice of closure and this is one of the few remaining cases they are finalizing.
(iii) That, he has engaged Mr. Nand to conduct his case but on 27 March, 2015 Mr. Nand has written a letter stating his inability to conduct his case since he is due to migrate to another country.
(iv) That, due to lack of time, he has not been able to find another solicitor.
(v) That, he has been very ill recently.
[8] In re: (i), the Appellant does not state as to when Mr. Mishra had advised him to get another counsel. Reason (ii) is equally unconvincing.
[9] In so far as reason (iii) is concerned, it is difficult to comprehend why Mr. Nand had to wait till 27 March, 2015 to inform the Petitioner that he would be migrating. Equally unconvincing is his lament that he has taken ill recently referred to in reason (v). For those reasons we were not inclined to accept reason (iv) as well.
[10] Indeed, procrastination is not only the thief of time but it can also lead to adverse consequences in litigation. The law does not and ought not to take notice of those who sleep over their rights.
[11] Thus, we were not inclined to grant an adjournment initially.
[12] However, having noted that, written submissions have been tendered on behalf of the Appellant, though as late as 2 April, 2015 and appreciating Appellant's counsel's submission that, should an adjournment be refused she would then make her best efforts to argue the case on behalf of her client on the limited papers she was in possession of, having taken a brief adjournment to deliberate on the matter, we decided to grant a short adjournment requiring the Respondent's Counsel to tender written submissions by the 14th April, 2015 (to which Mr. M. A. Khan for the Respondent graciously agreed) at which point we informed both parties that the matter would stand adjourned for hearing on the 17th April, 2015 and that, no further adjournments would be granted for whatever reason.
[13] In making that preliminary ruling in question in granting an adjournment, we think that, we have implied in our said ruling, what factors that would weigh with this Court, being the highest Court of the land, in showing leniency and adopting a liberal approach to parties to litigation who may be found to be lax in prosecuting their causes.
Re: The Respondent's Application to Reject and/or Dismiss the Appeal on the Basis of non-Compliance with the rules of this Court to file written submissions within the time stipulated by the said rules – the ruling thereon
[14] Mr. M. A. Khan, who appeared for the Respondent urged strongly that, the appeal be dismissed in limine on the ground that, the Appellant had defaulted in as much as he had failed to comply with the requirement to file written submissions on the date directed by Court namely, 18 March 2015 whereas the petitioner has tendered his written submissions only on the 2nd of April.
The Requirement to File Written Submissions
[15] The requirement to file written submissions is contained in Rule 36 of the Supreme Court Rules which provides that:
"36.-(1) An appellant or petitioner must file a statement of written submissions 42 days before the date appointed for the hearing of the appeal or petition, and must serve a copy of the statement on the respondent within 7 days of filing it.
(2) The respondent must file in the Supreme Court registry 21 days before the hearing of the appeal or petition, a statement of written submissions.
(3) A statement of written submissions must set out succinctly and clearly the issues giving rise to the appeal or petition and the argument in support of any such issues, with supporting authorities.
(4) A statement of written submissions must not exceed 25 pages of typewritten or printed foolscap with one and a half lines spacing between the lines."
[16] A plain reading of the Rule shows that, the sole consequence of an Appellant failing to file written submissions within the stipulated time directed by Court is not dismissal of an application.
[17] Consequently the Court, as the final Court, retains an inherent jurisdiction to exercise discretion in the matter and adopt a procedure that would meet the ends of justice.
[18] Time and again this Court as well as the Court of Appeal has expressed the view that Courts are not mere academies of law but are Courts of Justice.
[19] In other words, the shoulders of a Superior Court should be and indeed are broad enough in adopting an approach in order to meet the ends of justice.
[20] Accordingly we reject the Respondent's Counsel's application to reject and/or dismiss the appeal solely on the ground that, the appellant has failed to file written submissions on the stipulated date fixed by Court.
Purpose of Filing Written Submissions
[21] After all, there is the other additional factor as regards the requirement to file written submissions which is designed to assist Court to arrive at a final determination in the matter.
[22] An appeal being a Constitutional right, even without the assistance of any written submissions, the Court would be obliged to make a determination on the merits.
[23] Accordingly, we hold that, the appeal is not liable to be rejected and/or dismissed solely on the ground that, the appellant has failed to comply with the stipulated time limit.
[24] We now proceed to deal with the Appellant's case for special leave to appeal against the judgment of the Court of Appeal and the substantive appeal to have the said judgment set aside.
The Grounds of Appeal
[25] Those grounds are contained at paragraphs 39 to 41 of the Petition of Appeal dated 8 July, 2015 which we reproduce as follows:
"The Petition raises far reaching questions of law pertaining to:-
The Petition raises matters of great general or public importance pertaining to:-
The Petition raises matters that is otherwise of substantial general interest to the administration of civil justice pertaining to:-
The applicability of Order 49 Rule 3 of the High Court Rules when an appeal is lodged to the Court of Appeal and whether a judgment debtor is an affected party in appeal proceedings.
Background to the Appeal and Relevant Facts
[26] This is an application for special leave to appeal in the first instance and to have the judgment of the Court of Appeal dated 29 May, 2014 set aside where it allowed an appeal by the 3rd Appellant-Respondent (sometimes hereinafter referred to as the 3rd Garnishee) and set aside a garnishee order made against him by the High Court of Lautoka in a sum of $202,864.44 jointly and severally with two other garnishees. (sometimes hereinafter referred to as the mortgagees).
[27] The Respondent (the 3rd garnishee) was a practising solicitor against whom the said garnishee order had been made which was in satisfaction of a judgment the petitioner had obtained against three joint mortgagors in a sum of $277,400.00. There was a primary mortgage followed by a secondary mortgage as well. The Respondent was the solicitor for both mortgagees (1st and 2nd garnishees).
[28] Although the original appeal in the Court of Appeal was filed by all three garnishees, the 1st and the 2nd discontinued their appeals and only the 3rd garnishee's (solicitor's) appeal remained to be determined.
[29] The present Appellant is the person who bought the Mortgaged property which had been put for sale.
[30] The three mortgagors were named as plaintiffs in the garnishee proceedings but were not made parties in the Court of Appeal.
[31] The Appellant (4th defendant – judgment-creditor) in the High Court withdrew the garnishee proceedings against the 4th garnishee, the solicitor for the plaintiffs. (the Judgment debtors).
The High Court Judgment
[32] The salient features of the High Court Judgment may be noted as follows at this point.
Findings of the Court
[33] The learned High Court Judge found that:
"(i) In terms of Section 81 of the Property Law Act (Cap. 130), all three garnishees were statutorily obliged to pay to the Mortgagors (the plaintiffs) any surplus if any, after the payments envisaged in that section.
(ii) There was a surplus of $202,861.44 due to the plaintiffs (Mortgagors).
(iii) The Appellant (4th defendant – judgment creditor) had moved for order absolute to be made against the 1st and 2nd garnishees and not against the 3rd garnishee.
(iv) The 3rd garnishee's clerk's affidavits admitted the sale proceeds in respect of the mortgaged property had been received into the trust account of the 3rd garnishee (Solicitor).
(v) The 3rd garnishee failed to prove that there was no surplus $202,861.44 remained in his trust account (as Solicitor) of the Mortgagees at the time of service of the garnishee order nisi against him as being a fact within his own exclusive knowledge."
Conclusion Reached by Court
[34] The Court concluded that, the 3rd garnishee was liable for the surplus sum of $202,861.44 jointly and severally with the 1st and 2nd garnishees and accordingly the order nisi that had been entered initially was made absolute and executable against them.
The Judgment of the Court of Appeal
[35] The Court of Appeal set aside the judgment of the High Court for the reasons given by their Lordships which would be traversed in the ensuing passages of our judgment.
Does the Appellant's Case Reveal Grounds for the Granting of Special Leave to Appeal
[36] The tests and principles applicable for the granting of special leave to appeal have been formulated by modern jurisdictions
as well as this Court and are well settled. (See for example the Indian Supreme Court decisions in Chunilal Mehta v. Century Shipping & Manufacturing Co. Ltd. [1962] 1 AR (SC) 1314 and Subbarao v. Veeraju [1951] AIR Mad. 969; the Sri Lankan Supreme Court ruling in Colletes Ltd v. Bank of Ceylon [1982] 2 Sri Lanka LR514, and the judgments of this Court in Bulu v. Housing Authority [2005] 1 FJSC 1; Chand v. Fiji Times Ltd. [2011] FJSC 2 (8th April 2011) and Praveena's BP Service Station Limited v. Fiji Gas Ltd.; CBV 0018 of 2008 (26th April 2011).
(See also the judgment in South Sea Cruises Ltd. v. Samsul Mody CBV 0009 of 2014, scheduled to be delivered on 24 April, 2015.
[37] In the afore cited Indian Supreme Court decision in Chunilala Mehta (supra), Modholkar, J articulated thus:
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
[38] The said decision has been cited with approval by this Court consistently. (See for example Praveena B P Service Station Limited (supra) and Vishnu Deo Swarup v. Airport Land Development Company Limited (CBV 0004/15, 15 November 2014) and Jubilee Juice Distributors v. Jai Dhir Singh (CBV 0006/14, 14 November 2014).
[39] We proceed now to consider the submissions made by Counsel in that regard.
[40] Referring to the amount that was admittedly due on the Mortgage and the question whether there was a surplus and if so, whether that was paid as envisaged in Section 81 of the Property Law Act their Lordships noted that, the learned High Court Judge had held that, the garnishee order should be made absolute.
[41] But, as the Court of Appeal, (as per Basnayake, JA) noted, the Respondent's (3rd garnishee's) position had been that, whatever sum that was due and owing to be paid to the Mortgagees had been paid to them on their instructions. (vide: p.43 of the Supreme Court Record)
[42] However, the High Court had held that,
"There is a statutory debt that arose in the solicitor's trust account in his custody in favour of the plaintiff's (Mortgagors) and there lies a burden not discharged as to the absence or whereabouts of the surplus of $202,861.44 which was lost in his solicitor's trust account under his control."
(pp. 21-22 of the HRC)
[43] Had the matter remained there, perhaps there would not have been any reason to disturb the learned Judge's finding which had been arrived at by him on an analysis of the evidence.
[44] However, the Court of Appeal set aside the judgment of the High Court on the sole ground that, the Petitioner had abandoned seeking relief against the 3rd garnishee respondent.
[45] The Court of Appeal adverted to the written submissions dated 10 June, 2010 filed on behalf of the Petitioner (respondent in the Court of Appeal) wherein it had been stated that he was seeking an order absolute only against the 1st and 2nd garnishees. (pp.543 – 544 and 548 of the RHC).
[46] The learned High Court Judge himself had noted that,
"The 4th defendant (that is, the petitioner in this appeal) in his written submissions dated 10th June, 2010 at the last paragraph moves for the order absolute to be made against the 1st and 2nd Garnishees. I note it does not move to make order nisi absolute against the 3rd Garnishee."
(page 20 of the Judgment of the High Court)
[47] Having noted thus, the learned High Court judge had proceeded to make order absolute against the 3rd garnishee (the Respondent to this appeal) as well on the reasoning that,
"At times a Court has to rise above the submissions of both counsel in its duty to ascertain the truth and achieve justice."
(at p.20, supra).
[48] In his written submissions dated 3 March, 2014 filed in the Court of Appeal, the present Appellant's counsel in an effort to get over this hurdle had submitted that, he only sought to terminate the proceedings against the 4th garnishee and not the 3rd, although conceding that, he had earlier not moved for the order nisi to be made absolute against the 3rd garnishee (Respondent) in the Court below.
[49] Learned Counsel for the Petitioner before us also stressed on this aspect and submitted that, it was a slip or a mistake on the part of Counsel when he had earlier not moved against the 3rd garnishee but had rectified it later.
[50] The importance of this issue cannot be slighted and we reproduce below what is stated in the said written submissions filed on 3rd May, 2014 in the Court of Appeal.
"Counsel's Submission
Earlier Not seeking order absolute against third and fourth garnishees.
Later No garnishee proceedings against the 4th garnishee (Mr. Lajendra Nilesh on such garnishee proceedings against Mr Nilesh Lajendra is terminated and Mr. Nilesh Lajendra is excused from this hearing. 1st, 2nd and 3rd garnishees are represented by Mr. H. A. Shah."
[51] Those later proceedings do not seem to have caught the attention of the Court of Appeal.
[52] However, comparing the two sets of proceedings, while the earlier is unequivocal, the latter cannot be regarded as being so.
[53] A second reference to the fourth garnishee appears to have been necessary because Mr. Nilesh Lajendra was appearing in person and therefore had to be excused from the hearing.
[54] As against that, Mr H.A. Shah was representing the 1st, 2nd and 3rd garnishees, the 3rd garnishee himself being a Solicitor.
[55] Furthermore, those latter proceedings do not show whether or not an order absolute was being sought against the 1st, 2nd and 3rd garnishees. Thus, the said proceedings are couched in equivocal terms whereas the earlier proceedings are unequivocal.
Principles Relevant to the Issue
[56] If there had been a slip or mistake on the part of counsel, he was obliged to promptly have the proceedings corrected. That was not done.
[57] As we reflected on earlier, (Paragraph 12 of the judgment) the learned High Court Judge himself noted that no order absolute had been sought against the Respondent (the said 3rd garnishee). (page 20 of the Judgment of the High Court).
Could a Court grant relief that is not sought? Or abandoned?
[58] To our mind, the matter boils down to the question whether a Court could grant relief that is not sought or abandoned.
[59] The Court of Appeal answered that question in the negative. (per Basnayake, J.A. in paragraph 28 of the Court of Appeal Judgment and Amaratunga, J.A. at paragraph 39).
[60] In her effort to assail the Court of Appeal Judgment, learned counsel for the Appellant cited the case of Latchman v. Ajudhya Prasad (Vol:7, FLR 90) in support of her contention that, a court is entitled to grant relief even if it is not pursued by a party.
[61] That was a case where the trial judge had dismissed a claim and a counter-claim, holding that both parties were in paridelicto to an agreement the object of which was illegal and which stood unequivocally established on the evidence before court. Accordingly, although neither party had raised the question of illegality, the Court, suo moto, had taken into consideration the question of illegality.
[62] In the instant case, no question of in paridelicto arises. An agreement between the Appellant and the Respondent does not arise for consideration either. Even in regard to the evidence, the trial Judge rejected the affidavits of the Respondent's clerk, Prem Chand opting to rely on the affidavit of one Prasad tendered on behalf of the Appellant in regard to the disbursement of funds from the sale of the mortgaged property, said to be lying in the Respondent's trust account which he is supposed to have held on the 1st and 2nd garnishees' (Mortgagees) behalf.
[63] In that regard, the Court of Appeal adverted to the written submissions dated 10th June, 2010 filed on behalf of the Appellant (Respondent in the Court of Appeal) which were as follows; that,
"... ... neither the 3rd nor the 4th garnishees (4th garnishee was the solicitor for the plaintiffs / Judgment Debtors) have monies in their trust accounts. The 1st and the 2nd garnishees have not filed any affidavits in reply and the orders that we seek to be made absolute are against these two garnishees. These two garnishees who have taken all the monies under the mortgage and not paid out to the mortgagors are liable and we seek orders against them (para. 2.7 at pg 543 & 544 of the RHC).
We ask that an order absolute be made against the 1st and 2nd garnishees; that they jointly and/or severally pay the sum of $202,861.44 and costs to the 4th dependant (respondent in the Court of Appeal and the appellant before us)and there be judgement accordingly
(per Basnayake, J.A. at paragraph 22 of the Court of Appeal Judgment).
[64] Amaratunga, J.A. in his separate judgment noted that:
"In paragraph 2.7 of the written submissions filed by the Respondent in court below (p543 of the RHC) it stated:
Thus neither the Third nor the Fourth Garnishees have monies in their trust accounts. The First and Second Garnishees have not filed any Affidavit in Reply and the orders that we seek are absolute are against these two Garnishees. These two Garnishees who have taken all the monies under Mortgage and not paid out to the Mortgagors are liable and we seek orders against them.
In the submissions filed for the Respondent in this court at paragraph 41 in page 15 stated as follows:
41. The written submissions we had been given were dated 10th June, 2010 and the last affidavit of Prem Chand was not with us at that time. The hearing was on the 11th of June, 2010. That was only given the next day which is why in the written submissions we did not ask for an order that day against the Third Respondent (Sic). We were still waiting to see if the Trust Account details would show that payments were made out lawfully and as per Section 81 of the Property Act."
[65] His Lordship, Amaratunga, J.A. proceeded to observe thus:-
"There is no 3rd Respondent in this appeal and reference to that above, was presumably regarding the 3rd garnishee who is the 3rd Appellant in this action. This contention in the above mentioned paragraph in the written submission filed, on the eye of the hearing of these appeal, should be analyzed carefully. The Respondent admitted that he did not seek order absolute against 3rd garnishee on the day of the hearing (i.e. 11th June 2010). Hearing in court below concluded on the same day and matter was adjourned for judgment. There was no evidence to show that the said standpoint was altered by the Respondent in the court below before the pronouncement of the judgment.
If the counsel for the Respondent desired to change his position, as stated above, from the already informed position to court below in his opening oral submission to court on 11th June, 2010 and also further substantiated in his written submissions tendered to court below he had ample time to do it before pronouncement of judgment on 10th August, 2010, but strangely did not do so even after receipt of the second affidavit of 11th June, 2010 which he had mentioned as the reason for alleged change of mind, in this appeal.
According to the above submission filed before this court, the Respondent was not served with the second affidavit filed by Mr Prem Chand on the day of the hearing when hearing was concluded. Why did Mr V. Mishra consent to hearing in such a scenario? The logical conclusion is that he did not seek an order absolute against the 3rd garnishee at the hearing, irrespective of the unseen affidavit filed on the day of the hearing. At the hearing this fact was revealed and he was aware of this affidavit yet to be issued by registry at that time. The counsel admitted the receipt of the said affidavit on the following day of the hearing. If that affidavit filed on 11th June 2010, contained materials contained to what he had indicated to court, he should have immediately informed that fact to the court and should (Sic) have sought variation of his position against the 3rd garnishee ... ..."
[66] It is an inveterate principle that, an appellate court should be allow in interfering with a finding of fact unless it can be shown to be perverse or constitutes a misdirection.
[67] But, His Lordship, Justice Amaratunga's careful analysis (at paragraphs 41 to 44 of the Court of Appeal Judgment) as recapped above is demonstrative of the fact that, in the very least, the trial judge had overreached his function in holding that the 3rd garnishee (the Respondent to this appeal) was jointly and severally liable along with the 1st and 2nd garnishees in as much as "At times a court has to rise above the submissions of both counsel in its duty to ascertain the truth and achieve justice," although the present appellant on 10th June, 2010 in the written submissions filed on his behalf had moved for an order absolute only against the 1st and 2nd garnishees (the mortgagees), a fact, the learned High Court Judge himself had noted.
[68] Consequently, we return to the question which we earlier posed, that is, whether a court could grant relief that is not sought against a party.
[69] We have already distinguished the authority relied upon by the Appellant's counsel (viz: Latchman v. Ajudhya Prasad, 8 Supra).
[70] On the contrary, learned counsel for the Respondent cited two useful judicial decisions in that context.
[71] In Luke v. Clearly (2011 iii SASR134) the Supreme Court of South Australia has held that in regard to a point abandoned at trial, it would not be in the interests of justice to allow it to be raised on appeal. That case had held that:-
"(i) The threshold test to be met by a party seeking to raise an argument for the first time on appeal is high. An appeal court will only permit a party to do so in the most exceptional circumstances.
(ii) In the present appeal concerning whether a binding settlement agreement had been reached, the new point raised by the plaintiff turned on whether the settlement agreement amounted to the disposition of an interest in land, which was contested by the second defendant. The new point was not put at trial because of the deliberate decision by the plaintiff, on advice, not to pursue it. If the issue had not been expressly abandoned at trial, evidence might have been required to determine the nature of the interest in land asserted by the plaintiff and whether it was being disposed of pursuant to the settlement agreement. In the circumstances, it was neither expedient nor in the interests of justice for the court to entertain the point on appeal."
[72] In Whisprun Pty Ltd. v. Dixon (2003) ARL447 the High Court of Australia held that,
"It would be adverse to the due administration of justice if, on appeal, a party could raise a point that had not been raised at trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not raised at trial or might possibly have been met by rebutting evidence or cross-examination."
[73] Consequently, we venture to lay down as a proposition of law that, the Court will not grant relief which a party to litigation abandons or does not pursue whether by an oversight or mistake unless in exceptional circumstances such as an illegality in an agreement between the parties, apparent on the face of it or when the evidence unequivocally suggests otherwise.
[74] We are of the view that, that test is not satisfied in the instant case for which reason we see no basis to disturb the decision of the Court of Appeal on that question.
Should the mortgagors have been made parties to the appeal before the Court of Appeal? Were they necessary parties?
[75] The next principal point raised by the Appellant's counsel was that, the Mortgagors had not been made parties to the appeal before the Court of Appeal although they were parties in the garnishee proceedings and that failure being fatal, the Appeal ought to have been dismissed on that ground.
[76] Learned Counsel sought to derive support from Order 49(3) (1) (b) of the High Court Rules and particularly section 15(4) of the subsidiary legislation to the Court of Appeal (Cap: 12) of the Laws of Fiji and further relied on the authority of Roberts Petroleum Ltd. v. Bernard Henry Ltd [1982] 1 All ER685, a decision of the Court of Appeal of England.
[77] Central to Counsel's contention was the reference to the words "all parties to the proceedings in the Court below who are affected by the appeal" decreed in section 15(4) itself which Counsel relied on.
[78] Could the said Mortgagors be regarded as parties who could be regarded as affected parties in the appeal?
[79] The Mortgagors were the judgment debtors. The mortgaged property in question had been put on sale and from the proceeds derived from it were liable to be paid to the Appellant (the judgment-creditor) by the Mortgagees (1st and 2nd garnishees and/or the 3rd garnishee (the Respondent) who maintained a trust account on behalf and, as agent for the said Mortgagees as contemplated by sections 79 to section 81 of the Law of Property Act (Cap: 130) read with sections 5 to 7 of the Trust Accounts Act of 1996.
[80] But the question to be addressed is whether the said Mortgagors were to be regarded as "affected parties" in the appeal.
[81] The Mortgagors did not oppose the making of the garnishee order being made absolute.
[82] Moreover, the Solicitor who represented the mortgagors (Judgment-debtors) as the 4th garnishee withdrew from the proceedings and was discharged, the Appellant himself not seeking an order absolute against the said 4th garnishee.
[83] His Lordship, Justice Basnayake in the Court of Appeal reasoned thus:-
"The necessary parties are those who are directly affected by the appeal. Who (sic) are the parties directly affected? The garnishees are the parties against whom an order has been made. The garnishees are seeking to have the order absolute set aside. In the event the order is set aside who is affected? That is the respondent. The garnishee order has been issued on his application. The garnishee order was issued to recover any excess money left after settling the mortgage. The plaintiff never made a claim to any money as due to him even during the garnishee proceedings. If any money is left, that money would be paid to the respondent and not to the plaintiff"
(at paragraph 20 of the Court of Appeal Judgment).
[84] We are totally in agreement with the aforesaid reasoning and accordingly reject the contention of the Appellant's Counsel that the Mortgagors were necessary parties as being "affected parties" as contemplated in the said section 15(4).
Conclusion
[85] For the aforesaid reasons, we could find no error or any misdirection in fact or law in the Court of Appeal Judgment and were driven to the conclusion that, the Appellant has not raised viable grounds for special leave to appeal as contemplated in section 98 of the Constitution of Fiji read with section 7 (3) of the Supreme Court Act, No. 14 of 1988.
[86] We wish to state that, in arriving at that conclusion, we carefully examined the written submissions of both parties and matters of record as well as the oral submissions made on behalf of the Appellant and the Respondent.
In the Matter of Costs
[87] When this appeal was taken for hearing on 9 April, 2015, Counsel for the Respondent moved for costs of the day when we granted an adjournment for the reasons given in our Judgment.
[88] On that occasion we indicated to learned Counsel that, we would reserve that matter for an appropriate order in our final Judgment to which counsel agreed and accordingly we are of the view that, that is a matter we are obliged to consider in this final judgment although counsel did not pursue and/or re-assert his application for costs on the date when the appeal was heard on 17 April, 2015.
[89] Consequently, we proceed to make the following orders.
Orders of the Court
(a) Special leave to appeal is refused;
(b) The Appeal is dismissed;
(c) In addition to the costs ordered by the Court of Appeal in a sum of $5,000.00, the Appellant is hereby ordered to pay a sum of $5,000.00 as costs of this appeal and another $1,500.00 in the context of the adjournment granted to the Appellant on 9th April, 2015, thus, totaling a sum of $11,500.00 which total sum the Appellant is hereby ordered to pay within 21 days of the pronouncement of this judgment.
Hon. Justice Sathyaa Hettige
Justice of the Supreme Court
Hon. Justice William Calanchini
Justice of the Supreme Court
Hon. Justice Almeida Guneratne
Justice of the Supreme Court
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