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Sharma v Wati [2017] FJCA 132; ABU41.2012 (14 September 2017)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU 41 OF 2012

(High Court No. HBC 441 of 1999)

BETWEEN:

SUSHIL PRASAD SHARMA
Appellant
(Original Third Defendant)

AND:

1. MAYA WATI

BIMLA WATI

SUBHAS CHAND RAMRAKHA

AMAR RAMRAKHA

HARISH CHAND RAMRAKHA

First Respondents

(Original Plaintiffs)

2. REGISTRAR OF TITLES

Second Respondent

(Original Fourth Defendant)

3. ATTORNEY-GENERAL OF FIJI

Third Respondent

(Original Third Defendant)

4. JASODA, CHANDAR BHAN SINGH and

VIJAY BHAN SINGH (as Executors and Trustees

of Estate of Balram Singh)

Fourth Respondents
(Original Second Plaintiffs)

(Pursuant to Court Order of 5^th January 2015)

Coram : Calanchini P

Almeida Guneratne JA

Seneviratne JA

Counsel : Mr. E. Narayan for the Appellant

Ms. V. Maharaj for the 1^st Respondent

Ms. T. Baravilala and Ms. L. Raikatalau for the 2^nd and 3^rd Respondents

Mr. I. Samad for the 4^th Respondent

Date of Hearing : 16 August 2017
Date of Judgment : 14 September 2017

J U D G M E N T

Calanchini, P

[1] I agree that the appeal should be dismissed on the basis stated by Guneratne JA that the appeal is academic and to consider it would serve no useful purpose.

Almeida Guneratne, JA

[2] This is an appeal against the interlocutory judgment dated 28^th May, 2012 of the High Court at Suva.

[3] The 1^st Respondents (the original plaintiffs) had sought an interim injunction to restrain the Appellant (the original 3^rd defendant) from selling a property (the subject-matter of the action).

[4] Pending inquiry the Appellant had entered into a Sale and Purchase Agreement with a third party dated 8^th September, 2011.

[5] After inquiry the High Court ordered that:

“Alternatively, in the event the property comprised in Certificate of Title number 19761, Lot 1 on Deposited Plan No. 1796 containing an area of 7 acres 2 roods and 9 perches situated in the District of Rewa is disposed of, the 3^rd defendant his servants and or agents be ordered to deposit the sale proceeds without any deduction in court forthwith until final determination of the matter.”

[6] This was in response to a prayer alternative to an order seeking the prevention of the sale of the property.

[7] This appeal is against that judgment.

Matters that transpired at the hearing

[8] At the outset of the hearing it transpired that:

(a) the trial in this matter had been concluded on 28^th July, 2015 and the final ruling together with an incidental ruling are pending;

(b) in the meantime, the third party referred to in paragraph [4] above having sought specific performance in a separate action of the sale and purchase agreement between the said third party and the present Appellant entered into a settlement, the terms of which on documents furnished to this Court, read as follows:-

“BY CONSENT the parties agree as follows:

1. That the Settlement of the Sale and Purchase Agreement dated 8^th September 2011 shall be effected within 30 days of the delivery by the Court of Appeal of its Judgment in Civil Appeal No. ABU 041 of 2012 and that an Order for Specific Performance be granted accordingly.
   
2. That the Defendant do continue to actively monitor and progress his Appeal (Civil Appeal No. ABU 041 of 2012) in the Court of Appeal.
   
3. That this action be withdrawn and discontinued on the aforesaid basis.
   
4. Each party to bear their own costs.”
   

(c) the said terms of settlement in that separate action had been entered on 28^th October, 2014; (vide: Civil Action No. 253 of 2012)

(d) subsequently, the said third party seeking by an inter partes originating summons an extension of a caveat that had been entered against the sale of the property in question, Court had made order on 28^th March, 2017 extending the same until judgment is delivered. (vide: Civil Action No. HBC 10 of 2017)

Re : the effect of the aforesaid events on the present Appeal

[9] The effect of the aforesaid events after the filing of the present appeal is that:-
(a) though in separate proceedings, the sale of the property in question is stayed;

(b) the alternative order made by the High Court in the present matter which has been appealed against is rendered superfluous and of no practical use, particularly, given the fact that, the property has not yet been sold.

[10] For the aforesaid reasons this Court sought the views of Counsel for the Appellant as to the practical use in pursuing the present appeal.

Response on the part of Counsel for the Appellant

[11] The learned Counsel for the Appellant while conceding that no practical purpose would be served in pursuing the appeal, submitted however that in the absence of instructions he was not inclined to withdraw the appeal but that he would abide by any order made by this Court.

Determination of Court with reasons therefor

[12] No doubt what the Appellant has sought to exercise in this appeal is his statutorily conferred right.

[13] However, the present appeal is concerned with private rights and there is no public interest involved. To hear the appeal and, even if this court were to ultimately hold in favour of the Appellant it would be useless and would of no practical advantage to any party. Indeed, the Court would be acting in vain to entertain and hear this appeal since it would be an academic or futile exercise. This Court is not an academy of law.

[14] In arriving at this determination this Court paid due regard to several precedents referred to in a decision of this Court in Rajendra Chaudhry v. Chief Registrar (Civil Appeal No. ABU 63 of 2012, 27^th February, 2015). This Court was also struck by the submission of Counsel for the Appellant that he was pursuing this appeal only because it has been pending since the year 2014.

Re : Non-Compliance with Section 16 of the Court of Appeal Act read with Rule 15(4)

[15] Although the notice of appeal had been filed in this appeal as required by the aforesaid provisions within the required time limit of 21 days, the Appellant was required to serve the same as required by Rule 15(4) read with Rule 16.

[16] The Respondents have not urged that matter in opposing this appeal.

[17] Although the Court was inclined to grant leave to proceed with the appeal, in view of the reasons stated earlier in this judgment the Court see no reason to interfere with the impugned judgment dated 28 May, 2012.

Conclusion

[18] For the aforesaid reasons this Court makes order dismissing this appeal.

Seneviratne, JA

[19] I agree with the reasons and findings of Guneratne JA.

Orders of Court

1. The Appeal is dismissed.
2. In all the circumstances of this case there shall be no order for costs.
   

Hon. Justice W. D. Calanchini

PRESIDENT, COURT OF APPEAL

Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL

Hon. Justice L. Seneviratne
JUSTICE OF APPEAL