PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Fiji
You are here:  PacLII >> Databases >> Supreme Court of Fiji >> 2019 >> [2019] FJSC 7

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Land Transport Authority v Begg [2019] FJSC 7; CBV0004.2018 (26 April 2019)

IN THE SUPREME COURT OF FIJI
[CIVIL APPELLATE JURISDICTION]


CIVIL PETITION No: CBV 0004 of 2018
[On Appeal from Court of Appeal No: ABU 0054 of 2017]


BETWEEN:


LAND TRANSPORT AUTHORITY
Petitioner


AND:


SAHID BEGG
Respondent


Coram: Hon. Mr. Justice Anthony Gates, Judge of the Supreme Court
Hon. Mr. Justice Priyasath Dep, Judge of the Supreme Court
Hon. Mr. Justice Frank Stock, Judge of the Supreme Court


Counsel: Mr. S. Nandan for the Petitioner

Mr. K. Singh with Mr. P. Nawaikula for the Respondent


Date of Hearing: 10 April 2019


Date of Judgment: 26 April 2019


JUDGMENT


Gates, J


  1. I have read in draft the Judgment of Dep J. I am in agreement with His Lordship’s reasoning

that this petition must be refused and with the orders proposed.


Dep, J


  1. The Plaintiff who was the owner of a Caterpillar Bulldozer bearing registration No.FD351 entered into an agreement with Manos Jeet to sell the vehicle and the possession of the vehicle was handed over to the said Manos Jeet. As Manos Jeet defaulted in making payments, Plaintiff repossessed the vehicle. Plaintiff found that Manos Jeet without his consent and knowledge had fraudulently transferred the vehicle in his name. It was revealed that Manos Jeet had obtained a loan from a financial institute and the vehicle was subject to a bill of sale. As the borrower (Manos Jeet) defaulted in making payments the vehicle was auctioned and it was purchased by a third party.
  2. The Plaintiff instituted action against two Defendants. Ist Defendant (Elina Ledua) is a Customer Service officer of the Land Transport Authority. The 2nd Defendant is the Land Transport Authority, a statutory Authority established under section 6 of the Land Transport Act of 1998.
  3. The Plaintiff alleged that the 1st Defendant without verifying Part 3 of the Application for Transfer of Ownership of Vehicle Form (P2) transferred the ownership of the vehicle to Manos Jeet. Manos Jeet who became the owner of the vehicle obtained a loan from a financial institution and subjected the vehicle to a bill of sale.
  4. The Plaintiff alleged that the 1st Defendant failed to exercise due care and acted negligently and as a result he suffered damages in a sum of $ 130,000. The 1st defendant had acted in the course of her duties and within the scope of her employment and therefore 2nd Defendant is vicariously liable for the act of the 1st Defendant. [It was admitted that the 1st Defendant was an employee of the 2nd Defendant during the relevant period.]
  5. The 1st Defendant admitted that due to an oversight on her part, she failed to verify Part 3 of the Application for Transfer of Ownership of Motor Vehicle Form (P2). It is a requirement that the signature of the owner of the vehicle has to be attested by a Justice of Peace or certified by a person holding a Driver’s Licence. In this instance, the signature of the Plaintiff transferring the vehicle was certified by Ajay Chand a person holding a driver’s license. In the Application the details of Ajay Chand were incorrectly stated.
  6. In his evidence, the Plaintiff denied his signature on the said Application for Transfer of Ownership of Motor Vehicle Form. The 1st Defendant admitted that if she had verified the details on the Application form and the details on the data system, it would have revealed that the details regarding Ajay Chand given on the application form did not correspond with the information contained in the data base.
  7. The High Court Judge in his Judgment dated 7th April 2017 held that the relationship between the 1st defendant and the 2nd defendant was that of an employer and employee. The negligent act was committed by the 1st Defendant during the course of her employment as Customer Service Officer of the 2nd defendant. The 2nd Defendant was held to be vicariously liable for the actions and or omissions of the 1st Defendant.
  8. The High Court in its Final Orders stated that the Defendants breached duty of care to the Plaintiff. The Plaintiff was granted damages in a sum of $ 130,000 from 1st and 2nd Defendants who are jointly or severally liable. The Defendants were ordered to pay interest on $130,000 at the rate of 3% from the 10th of July 2015 to 7th April 2017. The costs of the action was summarily assessed at $2500.
  9. The Defendants though unsatisfied with the Judgment of the High Court, failed to appeal within the prescribed period of 42 days. The application for enlargement of time was filed on 26th May 2017 which is 7 days after the lapse of the appealable period. The Application for enlargement of time was taken up for hearing on 5 February 2018 and by its ruling dated 27 April 2018 the Court of Appeal rejected the Application.
  10. The Court of Appeal cited with approval the Supreme Court case in NLTB (now ITLTB) –v- Khan and Another (CBV 2 of 2013; 15 March 2013) where the principles upon which an enlargement of time be granted were considered. It held that:

“In order to ensure that the discretion is exercised in a principled manner the Court will consider (a) the length of the delay, (b) the reasons for the delay, (c) whether there is a ground of merit justifying the appellate court’s consideration or, where there has been substantial delay, nonetheless is there a ground that will probably succeed and (d) if time is enlarged, will the respondent be unfairly prejudiced. The discretion should be exercised in a manner that re-inforces the importance of compliance with the rules of court and the need to bring finality to litigation” (see McCaig –v- Abhi Manu CBV 2 of 2012; 24 April 2013).


  1. The Court of Appeal held that though the length of delay is relatively short, the explanation given was unsatisfactory and unconvincing. The explanation given by the Appellant was that the Appellant was awaiting the confirmation of the professional indemnity insurance assessment from the insurance broker. This explanation was not accepted.
  2. The Court of Appeal thereafter proceeded to consider whether there are sufficient merits in the following grounds of appeal raised by the appellant for its consideration.
    1. The learned Judge erred in law in not exercising his discretion to join the person who had transferred the Bulldozer as the 1st Defendant considering that the third party (Manos Jeet) was the one who fraudulently transferred the vehicle;

(a) That the person had fraudulently transferred the bulldozer bearing registration number FD 351;

(b) That there were actions by Manos Jeet to justify that he should be joined in the court proceedings.

  1. The learned Judge erred in law and in fact in not considering the statutory obligations of the Authority under the Land Transport Act 1998;

3. The Learned Judge erred in law and in fact in failing to question the authenticity of the valuation report of the said machine that was tendered to by the Respondent /Plaintiff as it would also have been the duty of the Court to confirm this.


  1. The Court of Appeal after considering the oral submissions made by the Counsel representing the parties and the written submissions tendered by the parties came to the following conclusions.
  2. By its order dated 27 April 2018, the Court of Appeal refused the Application for enlargement of time. The Appellant was ordered to pay cost to the Respondent in a sum $1,800.00 within 21 days of the Ruling.
  3. Being dissatisfied with the Ruling of the Court of Appeal, the Petitioner invoked the jurisdiction of the Supreme Court by filing a Petition of Appeal dated 4 June 2018 seeking leave.
  4. When seeking leave, the Petitioner should satisfy the Supreme Court that ground/grounds raised by the Petitioner falls within one or more limbs of Section 7(3) of the Supreme Court Act 1998 which states as follows:

“3) In relation to a civil matter (including a matter involving a constitutional question), the Supreme Court must not grant leave to appeal unless the case raises-


(a) a far-reaching question of law;

(b) a matter of great general or public importance;

(c) a matter that is otherwise of substantial general interest to the administration of civil justice”


  1. When this Application was taken up for hearing, the Learned Counsel for the Petitioner submitted that he will be pursuing only one ground of appeal raised in the Petition and that is in relation to the failure of the Judge to use his discretion to add a necessary party to the action. The same ground was raised under 7 (3) (a) and 7 (3) (c) of the Supreme Court Act 1998.
  2. According to paragraph 20 (a) (1) of the Petition of Appeal dated 4 June 2018 this ground was raised under section 7 (3) (a) of the Supreme Court Act of 1998 as a ground raising a far reaching question of law. It was formulated in the following manner:

“Whether Judges of the Court of Appeal can use their discretion on matters relating to the joining of necessary parties to the proceedings to ensure a fair administration of justice”.


  1. In paragraph 20 (c) (1) of the Petition of Appeal dated 4 June 2018 this ground was also raised under section 7 (3) (c) of the Supreme Court Act of 1998 as a question otherwise of substantial general interest to the administration of civil justice. This ground was formulated as follows:

“The discretion of the court to join or not to join a party as the rule provides and also that the paramount consideration is to have before the court all necessary parties. Manos Jeet was necessary party as he was the main person who had done the transfer of the said vehicle without a proper witness and to have him not joined as a party is of grave injustice to the Petitioner”.


  1. The Petitioner relied on Order 15 Rule 6 of the High Court Rules which states;

“(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application-


(b) order any of the following persons to be added as a party, namely –


(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter”.


  1. The question is whether or not Manos Jeet who submitted forged documents and got the vehicle transferred in his name should be added as a party to the action and his presence as a party was necessary to ensure that the cause or matter would be effectually and completely determined or adjudicated upon.
  2. The other question is whether there exist a question in relation to the remedy or relief sought and that his presence was necessary to determine between him and party or parties to the cause or matter.
  3. In other words whether his presence was required to effectively and completely determine or adjudicate the cause or matter or determine a question relating to relief or remedy between him and party/parties to the cause or matter.
  4. In the trial before the High Court, Detective Police Officer gave evidence and testified that he inquired into a complaint made by Sahid Begg (Plaintiff) against Manos Jeet for fraudulently transferring his vehicle in Manos Jeet’s name. He recorded the statements of the Plaintiff, 1st Defendant and an officer of the 2nd Defendant. In his evidence he stated that he could not arrest and prosecute Manos Jeet as he had already gone abroad.
  5. The Petitioner/Appellant who was the 2nd Defendant in the High Court did not aver in its statement of defence that the presence of Manos Jeet was necessary as a Defendant for effective and complete determination or adjudication of the case. In addition to that the 2nd Defendant in the course of the trial did not make an application to add Manos Jeet as a Defendant.
  6. In this Petition of Appeal this Court has to consider the facts of the case, nature of the action and the relief sought and decide whether or not Manos Jeet was a necessary party to the action.

  1. The action against the 1st Defendant is that she as a customer service officer of the 2nd Defendant failed to exercise due care and acted negligently when she registered the vehicle in the name of Manos Jeet. As the 1st Defendant acted in the course of and within the scope of employment, the 2nd Defendant was held to be vicariously liable. It is my view that according to the cause of action pleaded, there is no legal basis to add Manos Jeet as a Defendant to the action.
  2. The Petitioner/Appellant submitted that Manos Jeet is the person who committed the fraud and benefitted or enriched himself from the fraud. Therefore he should be added as a party. On the other hand it could be argued that irrespective of the conduct of Manos Jeet, if the 1st Defendant exercised due care and acted diligently the fraud could have been averted. The liability of the 1st and 2nd Defendants is distinct and independent of the liability of Manoj Jeet.
  3. It was submitted on behalf of the Petitioner that if Manos Jeet was added as a Defendant it could have an impact on apportionment of damages. As it is the 1st and the 2nd Defendants are jointly and severally liable to pay the total some of damages. If Manos Jeet was added as a Defendant damages could have been apportioned between the parties depending on the degree of culpability. Though this submission sounds equitable, this Court has to consider whether there is a legal basis to add Manos Jeet as a Defendant in relation to the cause of action pleaded.
  4. In this action all that the Plaintiff has to prove is that the 1st Defendant in the course of her duties acted in a negligent manner and caused damage to the Plaintiff and that the second Defendant as the employer is vicariously liable for the conduct of the 1st Defendant. The presence of Manos Jeet as a Defendant is not required for the effective and complete adjudication of the case.
  5. I am of the view that even if the Petitioner/Appellant made a formal application to add Manos Jeet at the trial in the High Court it is unlikely that the Petitioner would have succeeded in his Application. As there is no legal basis to add Manos Jeet as a Defendant there is no reason for the High Court to act on its own motion to add Manos Jeet as a Defendant.
  6. In any event it is not possible to procure the presence of Manos Jeet in court and be added as a party due to the reason that he has gone abroad and living beyond the jurisdiction of the Court and his whereabouts are not known.
  7. I agree with the observations made by the Court of Appeal that ordinarily it is not the function of the court to assist a party to identify who should or should not be joined as a party to litigation.

Conclusion


  1. In this case there is no legal or factual basis to add Manos Jeet as a Defendant. Therefore there is no need for the High Court to exercise its discretion on its own or on an application by a party to make an order to add Manos Jeet as a defendant under Order 15 Rule 6 (2) (b) of the High Court Rules 1988. There is no merit in the ground raised by the Petitioner to obtain leave.
  2. Therefore for reasons set out above, this Court rejects the ground of appeal raised under section 7 (3) (a) of the Supreme Court Act of 1998 as a ground raising a far reaching question of law and the same ground raised under section 7 (3) (c) of the Supreme Court Act of 1998 as a ground raising a question otherwise of substantial general interest to the administration of civil justice.

Stock, J

  1. I have had the advantage of reading in draft the judgment of Dep J and respectfully agree that there was no basis in this case which warranted the joinder under Order 15 rule 6 of the Rules of the High Court of the person known as Jeet, and with the reasons he provides for that conclusion. I wish only to add a few observations about Order 15 rule 6(2) (b) of the Rules of the High Court and also about the contention that it was for the judge to invoke it of his own motion.
  2. As Dep J has explained, Mr Begg, the respondent to this application, was the plaintiff in a High Court action. The defendants were a Ms Ledua and her employer, the petitioning Land Transport Authority (“the Authority”). The action was one in negligence by which Mr Begg asserted that Ms Ledua negligently processed an application for transfer of ownership of his bulldozer to one Manos Jeet. Two questions were raised by that claim: first, whether Ms Ledua was negligent and, second, if so, whether the Authority was vicariously liable to Mr Begg for that negligence. Judgment was given for Mr Begg against both parties.
  3. The Authority sought leave to appeal that judgment out of time. A single judge of the Court of Appeal[1] refused the extension of time. One of the factors he considered in arriving in that decision was whether there was apparent merit in any one or more of the proposed grounds of appeal and found there to be none. Accordingly, he refused the application. The petition contends that several suggested grounds of appeal warranted an extension of time but which the judge failed to recognise as meritorious. However, at the hearing of the application for leave, Mr Nandan, for the Authority, informed us that he pursued only one of those suggested grounds, namely, that the judge erroneously failed of his own motion to make an Order under Order 15 rule 6(2)(b) that Manos Jeet be joined as a party to the proceedings. The argument for the Authority, as I understand it, is that it was necessary or just to join Manos Jeet because Jeet allegedly caused the transfer to be effected by fraud and, if so, damages in Mr Begg’s favour could appropriately be apportioned.
  4. Order 15 rule 6 (2)(b), upon which this argument depends states as follows:

“Subject to the provisions of this Rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –


(a) ...
(b) Order any of the following persons to be added as a party, namely –
(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or
(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him or her and that party as well as between the parties to the cause or matter.”
  1. The correct approach to rule 6(2)(b)(i) was succinctly articulated – albeit in relation to a slightly differently worded rule where the difference is not material for present purposes[2] - by Devlin J (as he then was) in Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357 at 368-369:

“The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.

It is not I think disputed that “the cause or matter” is the action as it stands between the existing parties. ...

The intervener [who seeks to be joined] must be a party whose presence is necessary to enable all questions involved to be adjudicated upon and settled, but the question must be one which has to be addressed upon in the issue between the existing parties and not in any new issue raised by an intervener.” (Emphasis added).


The fact that that case concerned a party who desired to intervene whereas in the present case the suggested joinder would be of a reluctant party is irrelevant to the applicability of the principles established by that judgment.


  1. Applying that approach to the present case, the answer to the Authority’s argument with regard to rule 6(2) (b) (i) is that the joinder of Jeet was not necessary to determine the issues in dispute in the cause or matter before the trial judge. The cause or matter was Mr Begg’s claim in negligence as against Ms Ledua and the Authority. The claim against Ms Ledua depended on her execution of the transfer application – she was either negligent in processing the transfer application or she was not and Jeet’s presence for, or participation in, the trial was plainly not necessary to decide that issue. If she was negligent, the Authority’s liability was founded on principles of vicarious liability, an issue in respect of which Jeet’s role was irrelevant. It follows that even if the Authority had applied for joinder of Jeet under rule 6(2) (b) (i) – which it did not – it would not have been open to the judge to join Jeet pursuant to that rule.
  2. Jurisdiction under rule 6(2) (b) (ii) is wider than rule 6(2) (b) (i) in that it confers on the Court a discretion to permit joinder “where there exists a question or issue arising out of or relating to or connected with any relief or remedy which ... it would be just to determine as between him or her and that party as well as between the parties to the cause or matter.” It would not be sensible to attempt a delineation of the circumstances in which the power under rule 6(2) (b) (ii) might validly be exercised since the circumstances are variable but for present purposes it is relevant to note that rule 6(2) (b) (ii) is in similar terms to Order 16 rule (1) (c) which concerns third party notices. Order 16 rule 1 provides that:

“(1) Where in an action a defendant who has given notice of intention to defend –

-...

(c ) requires that any question or issue relating to or connected with the original subject matter of the action should be determined not only as between the plaintiff and the defendant but also as between either or both of them and a person not already a party to the actions;


then.. the defendant may issue a [third party notice] ....”


  1. What emerges from this is that Order 15 rule 6 (2)(b)(ii) is not appropriate as a vehicle for joinder, at the behest of a defendant, of a person he or she could have joined as a third party but chose not to. The rule tends, it would seem, to be commonly the machinery by which a non- party who is likely to be affected by an order made in the proceedings will seek to intervene[3]. In this case, one may safely assume that the non-party, Jeet, did not wish to become a defendant; such relief or remedy as was sought against the Authority did not impact upon Jeet; and joinder of Jeet would not have accorded with Mr. Begg’s wishes, since from his perspective such a move would be unnecessary to his claim and would serve merely to add costs. In these circumstances, it is not possible to see how an order under rule 6(2) (b) (ii) could have been warranted.
  2. Thus far, I have addressed the question whether upon an application by the Authority it would have been appropriate for the trial judge to join Jeet under rule 6(2) (b). But the complaint before the single judge, which is repeated before this Court, is particularly remarkable in light of the fact that no application for joinder was made. It will be a rare case in which the discretion given to a court of its own motion to join a person as a party falls seriously to be considered and, even then, the failure of a court to make an order for joinder would have to be shown to be manifestly in error before an appellate court will intervene. In the present case, the suggestion that the judge should have made such an order of his own motion is entirely devoid of merit. In short, Mr Begg chose to proceed against Ms Ledua and the Authority and not to proceed against Jeet. He was entitled to take that course. If the Authority was of the opinion that it was entitled on the facts to a contribution or indemnity from Jeet, it could have issued a third party notice. It chose not to do so. It further chose to make no application for joinder and had it done so, the application was destined to fail. The notion that, even so, the judge ought to have ordered joinder does not begin to get off the ground.
  3. Accordingly, I too would dismiss the application for leave to appeal.

The Orders of the Court are:


  1. Application for leave refused.
  2. Petitioner / Appellant to pay cost to the Respondent in a sum of $3,500.00 within 21 days of this judgment.


Hon. Mr. Justice Anthony Gates

Judge of the Supreme Court


Hon. Mr. Justice Priyasath Dep

Judge of the Supreme Court


Hon. Mr. Justice Frank Stock

Judge of the Supreme Court

[1] Calanchini P
[2] The relevant rule was Ord.16, r.11 of the Rules of the Supreme Court which read: “ ... The Court ... may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court ... to be just, order that ... the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added ... .”
[3] See the discussion of O15 (6) (2) (b) (ii) in the Supreme Court Practice 1999, Vol 1, 225-228.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJSC/2019/7.html