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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI
[CIVIL APPELLATE JURISDICTION]
Civil Petition No. CBV0009 of 2017
[From Civil Appeal No. ABU0047
of 2014 and High Court of Fiji Action No. HBC 107 of 2009; HBC 380 of 2004]
BETWEEN:
ATUNAISA LACABUKA RASOKI
Petitioner
AND:
ATTORNEY-GENERAL OF FIJI
1st Respondent
AND:
NATIVE LANDS COMMISSION
2nd Respondent
AND:
SALESI TEMO
3rd Respondent
AND:
iTAUKEI LAND TRUST BOARD
4th Respondent
Coram : Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Justice Buwaneka Aluwihare, Judge of the Supreme Court
Hon. Mr. Justice Priyasath Gerard Dep, Judge of the Supreme Court
Counsel : The Petitioner in Person
: Ms. S.Taukei for the 1st Respondent
: 2nd & 3rd Respondents absent and unrepresented
: Ms. L.Komaitai for the 4th Respondent
Date of Hearing : 26 April 2022
Date of Judgment : 29 April 2022
JUDGMENT
Marsoof, J:
[1] By his timely petition accompanied by affidavit dated 14th August 2017, the Petitioner has sought special leave to appeal against the Ruling of a single judge of the Court of Appeal (Chandra RJA) dated 1st August 2017 by which the Petitioner was refused enlargement of time for leave to appeal from a judgment of the High Court of Fiji.
Reasons for refusing Enlargement of Time
[2] The reasons set forth in the Ruling of the single Judge of the Court of Appeal[1] for refusing enlargement of time were that the petition and affidavit of the Petitioner did not identify with certainty the judgment of the High Court against which he sought enlargement of time for leave to appeal (paragraphs 10 and 11 of the said Ruling) and that the Petitioner has failed to provide any material that may be relevant to the factors that are usually taken into account in granting enlargement of time (paragraph 16 and 17 of the Ruling.
[3] It is noteworthy that in refusing enlargement of time, the single judge of the Court of Appeal has observed in his Ruling[2] as follows:
[18] It is necessary in invoking the discretionary power of the Court in seeking enlargement of time to set out precisely the basis of the application and the grounds which satisfy that the appeal is likely to succeed.
[19] The Appellant has failed to set out his application with clarity. It is vague and is prolix. Furthermore, it is incomprehensive as to what the Appellant is seeking to achieve in his application.
[4] It is against this Ruling of the single Judge of the Court of Appeal that the Petitioner is now seeking leave to appeal from this Court. Before considering the petition on its merits, it is necessary to deal with certain more fundamental difficulties that may prevent this Court from entertaining the Petitioner’s petition to this Court seeking leave to appeal.
Constitutional Issues
[5] The exclusive jurisdiction of the Supreme Court of Fiji to hear and determine appeals from all final judgments of the Court of Appeal is derived from section 98(3)(b) of the Constitution of the Republic of Fiji, 2013. Section 98(3) provides that (a) the Supreme Court is the final appellate court in Fiji (b) which has exclusive jurisdiction, subject to such requirements as prescribed by written law, to hear and determine appeals from all final judgments of the Court of Appeal; and (c) has original jurisdiction to hear and determine constitutional questions referred under section 91(5) of the Constitution.
[6] The question that arises is whether a Ruling refusing enlargement of time made by a single Judge of the Court of Appeal is a “final judgment” within the meaning of section 98(3)(b) of the Constitution of Fiji.
[7] In this context, it is relevant to note that while the corresponding provision in section 100(1) of the Fiji Constitution of 1970[3], restricted appeals from decisions of the Court of Appeal to Her Majesty in Council as of right to “final decisions” of the Court of Appeal, section 122(1) of the Fiji Constitution of 1997[4] provided that “the Supreme Court has exclusive jurisdiction, subject to such requirements as the Parliament prescribes, to hear and determine appeals from all final judgments of the Court of Appeal.” The language used in section 98(3(b) of the Fiji Constitution of 2013 is strikingly similar.
[8] While there is no definition of the phrase “final judgment” in the Constitution of 2013, decisions of this Court have considered the meaning of the said phrase under the current Constitution of Fiji as well as under its previous Constitutions. In Native Land Trust Board v Narava,[5] the Fiji Supreme Court discussing the ambit of section 122 of the Constitution of 1997 stressed that-
“The term “all final judgments” appears in section 122 of the Constitution and defines the jurisdiction of the Supreme Court in relation to appeals from the Court of Appeal. There is no discretion available under the Constitution to allow the Supreme Court to entertain applications for leave to appeal against decisions of the Court of Appeal which are not final. The construction of the term “all final judgments” in section 122 is not linked to a case management regime that will mitigate the injustice or inconvenience that might otherwise be worked by the fine distinctions developed under the existing case law. Having regard to its use as a constitutional term and its functions in defining the jurisdiction of the Supreme Court, the term “final judgment” may require a wider interpretation than that which has evolved under rules of court in various jurisdictions.”[6]
[9] It is also pertinent that this Court also observed[7] in the Native Land Trust Board case that-
“The word “final” qualifies the class “judgments of the Court of Appeal” and on that basis refers to the decisions upon proceedings in that Court. That could be construed as referring to the disposition of appeals whether they have been brought as of right from final judgments of the High Court or by leave from interlocutory judgments of that Court. The question would then arise what work is to be done by the word “final” in relation to the Court of Appeal on this construction. It would exclude from the jurisdiction of the Supreme Court a range of interlocutory decisions which may be made in the Court of Appeal including decisions granting of withholding leave to appeal, decisions extending or refusing extensions of time, decisions providing for the stay of execution or of proceedings under the judgment at first instance and decisions relating to security for costs and the grant or withholding of bail pending appeal in criminal cases. When reference is made to these matters it can be argued that there is a purpose to be served by the word “final” when used to refer to judgments of the Court of Appeal in relation to appellate proceedings.”(emphasis added)
[10] It appears that what this Court said in the above passage regarding “decisions extending or refusing extensions of time” is obiter dicta because the matter in relation to which the jurisdiction of the Court was traversed in that case was not one relating to extension or enlargement of time as in this case, and in any event it appears from the said judgment[8] that the broader constructional issues pertaining to the proper construction of section 122(1) were not fully argued before this Court.
[11] The question came up more directly in Ralumu v Commander, Republic of Fiji Military Forces[9] in which certain soldiers sought to challenge the validity of their detention in habeas corpus proceedings in the High Court, but upon relief being refused, they appealed to the Court of Appeal but failed to comply with the Rules of the Court of Appeal so that the appeal was deemed to be abandoned. They then sought from the Court of Appeal an extension of time within which to appeal, but upon that application being refused by a single judge of the Court Appeal, they sought special leave to appeal against that decision from the Supreme Court.
[12] This Court had the opportunity in Ralumu of revising the ambit of the words "final judgment of the Court of Appeal" which appears in section 122(1) of the 1997 Constitution, and after carefully examining the constitutional provisions and the decision of this Court in Native Land Trust Board v Narava and noting that the scope of the phraseology of “final judgment” was considered but not fully resolved by this Court in the Native Lands Trust Board case. In setting aside the decision of the Court of Appeal which refused the soldiers an extension of time within which to appeal and granting further time for them to file a Notice of Appeal in compliance with the Rules of the Court of Appeal, this Court observed[10] as follows-
“In our opinion the better view is that a final judgment of the Court of Appeal, for the purposes of section 122 of the Constitution, is any judgment of the Court of Appeal which finally disposes of a proceeding in that Court. It was conceded by the first respondent that refusal by a judge of the Court of Appeal of an extension of time to bring an appeal is a final judgment of the Court of Appeal for the purposes of section 122 of the Constitution and may be the subject of a petition for special leave provided that it meets the criteria for the grant of such leave. We are satisfied that the concession was a proper one and that what occurred in this case was in substance a final judgment.”
[13] The question has since been revisited at least twice by this Court in Penioni Tubuli v State[11] and Silosi Volivale v State.[12] In Penioni Tubuli it is pertinent that this Court considered its jurisdiction to deal with an appeal arising from a dismissal of an application for leave to appeal filed out of time in terms of section 35(2) of the Court of Appeal Act No. 2 of 1949, and observed[13] as follows:-
“The appellate jurisdiction conferred on the Supreme Court by the Constitution is a jurisdiction to hear and determine appeals from "all final judgments of the Court of Appeal". A decision by the Court of Appeal to dismiss an appeal under s 35(2) is, for all practical purposes, a final decision of that Court. In our opinion, it also falls within the class of final judgment of the Court of Appeal contemplated by s 122(1). The constitutional concept of final judgment does not leave judgments of dismissal under s 35(2) unchallengeable by way of petition for special leave to appeal where one of the criteria for the grant of special leave in criminal cases set out in s 7 of the Supreme Court Act 1998 can be made out. The constitutional provision is to be interpreted broadly and not by reference to distinctions between interlocutory and final judgments relevant to rules governing civil procedure and informed by case management considerations. In our opinion, a decision under s 35(2) dismissing an application for leave to appeal out of time is a final judgment of the Court of Appeal for the purposes of s 122(1) of the Constitution.”(emphasis added)
[14] In Silosi Volivale v State,[14] where a single Judge of the Court of Appeal heard an application for leave to appeal out of time characterizing it as an application for enlargement of time to appeal against conviction and sentence and dismissed the said application under section 35(2) of the Court of Appeal Act, the Supreme Court entertained the application for leave to appeal on the basis that it was a “final judgment” of the Court of Appeal, and observed as follows:-
“In the case of Penioni (supra) the Supreme Court observed that a decision under section 35(2) of the Court of Appeal Act made by a single Judge dismissing a leave to appeal application, having considered the above constitutional provisions contemplated in section 98(4) of the Constitution is a final judgment of the Court of Appeal.”(emphasis added)
[15] It is therefore clear from the authorities discussed above that even a decision of a single judge of the Court of Appeal refusing to extend or enlarge time for filing an application for leave to appeal lodged out of time is a “final judgment” of the Court of Appeal for the purposes of section 98(3)(b) of the Constitution of the Republic of Fiji, 2013 since it has the effect of finally determining the rights of the parties concerning which appellate remedies have been exhausted or the time provided for appeal has expired.
[16] Another matter of importance is that section 98(4) of the current Constitution of Fiji provides that an appeal may not be brought to the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal. The Constitution does not lay down the criteria or procedure for granting leave to appeal from this Court and instead while the criteria governing the grant of leave to appeal are set out in section 7 of the Supreme Court Act No. 14 of 1998, the applicable procedure has been outlined in the Rules of Court. The currently applicable rules are contained in the Supreme Court Rules, 2016.
The Procedure for seeking Leave to Appeal
[17] In regard to the procedure, Rule 4 of the said Rules provides as follows:-
(1) An application to the Court for leave to appeal under section 98(4) of the Constitution must be by way of Petition.
(2) A Petition under paragraph (1) must-
(a) state succinctly and clearly all facts it may be necessary to state relating to the Petition;
(b) deal with the merits of the case only so far as is necessary to explain the grounds upon which leave to appeal is sought; and
(c) be signed by the Petitioner’s legal practitioner or by the party if the party appears in person
(3) A Petition must be supported by an affidavit verifying the allegations made in the Petition.
(4) For the purposes of this Rule, Forms 6 and 7 set out in Atkin’s Encyclopedia of Court forms (Second Edition) Volume 5 (1984 issue) at page 189 et sequentes must be used with any modifications or variations the circumstances of the particular case may require. These forms are set out in Schedule1.
[18] Rule 5 (a) of the said Supreme Court Rules also provides that such an application must “be lodged at the Court registry within 42 days of the date of the decision from which special leave to appeal is sought.” It is noteworthy that the said procedure and time limits are substantially the same as those prescribed in the Supreme Court Rules of 1998, which were applicable prior to 31st October 2016.
[19] While the Petitioner has lodged his petition and affidavit within the period of time stipulated in Rule 5(a) of the Supreme Court Rules, he has failed to set out in his petition succinctly and clearly all facts it may be necessary to state relating to the petition or to deal with the merits of the case only so far as is necessary to explain the grounds upon which leave to appeal is sought as contemplated by Rule 4(2)(a) and (b).
Analysis of the Factual and Legal Position
[20] The petition lodged by the Petitioner in this Court contains considerable irrelevant material but does not set out succinctly and clearly all relevant facts or deal clearly with the merits of the case. The petition is vague and prolix, and even does not disclose to this Court particulars of the judgment against which he was seeking leave to appeal in this Court.
[21] It is noteworthy that in paragraph 11 of the impugned Ruling of the single judge of the Court of Appeal, Chandra RJA has explained the difficulty he was placed in considering the grant of relief to the Petitioner. I quote below paragraph 11 of Chandra RJA’s Ruling:
“In the summons filed by the Appellant, it is not certain as to which judgment he is referring to. What has been sated is “Judgments delivered by Honourable Justice Kamal Kumar J on 24 June 2014”. As pointed out above, there are two judgments which have been delivered by Justice Kumar on 24 June 2014. Therefore, to start with there is an uncertainty as to which judgment the Appellant is referring to or whether he is referring to both.”
[22] At the hearing before this Court, the Petitioner who appeared in person addressed Court at length but was unable to explain how he was aggrieved by the aforesaid Ruling or provide information regarding the particular judgment against which he sought leave to appeal in the Court of Appeal.
[23] A petitioner invoking the appellate jurisdiction of this Court in a civil case has to satisfy this Court that the grounds of appeal urged by him in his petition meet the stringent threshold criteria laid down in section 7(3) of the Supreme Court Act, 1998. It is trite law that the Supreme Court will 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; or (c) a matter that is otherwise of substantial general interest to the administration of civil justice.” The Petitioner has failed to satisfy this Court that the grounds on which he seeks leave to appeal from this Court meet any of the threshold criteria set out in section 7(3) of the Supreme Court Act.
Conclusions
[24] For the foregoing reasons, leave to appeal is refused and the petition is dismissed with costs in a sum of Fiji $1000.00 to be payable equally to the 1st and 4th Respondents.
Aluwihare, J:
[25] I agree with the reasons and the judgment of Justice Marsoof.
Dep, J:
[26] I have read in draft the judgment of Marsoof J. and I agree with his reasons and conclusions.
The Orders of the Court are:
..................................................
Hon. Justice Saleem Marsoof
Judge of the Supreme Court
...................................................
Hon. Mr. Justice Buwaneka Aluwihare
Judge of the Supreme Court
...................................................
Hon. Mr. Justice Priyasath Gerard Dep
Judge of the Supreme Court
Solicitors:
Petitioner in Person
Attorney-General’s Chamber for the 1st Respondent.
The 2nd & 3rd Respondents were unrepresented.
iTaukei Land Trust Board for the 4th Respondent.
[1] The Ruling of Chandra RJA in Rasoki v Attorney General of Fiji et al [2017] FJCA 93; ABU47.2014 (1 August 2017).
[2] Ibid., paragraphs [18] and [19].
[3] See the Schedule to the Fiji Independence Order 1970 and Constitution of Fiji [Cap 1].
[4] See the Constitution (Amendment) Act 1997.
[5] Native Land Trust Board v Narawa [2004] FJSC 7; CBV0007.2002S (21 May 2004).
[6] Ibid, paragraph [34].
[7] Ibid, paragraph [35].
[8] Ibid, paragraph [38].
[9] Ralumu v Commander, Republic of Fiji Military Forces - Reasons for Judgment [2004] FJSC 11; CBV0008.2003S (10 September 2004).
[10] Ibid., paragraph [51].
[11] Tubuli v State [2008] FJSC 37; CAV0009.2006 (25 February 2008).
[12] Volivale v State [2015] FJSC 1; CAV0004.2014 (23 April 2015).
[13] Tubuli v State, supra note 11 at paragraph [17].
[14] Volivale v State, supra note 12.
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