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Din v Khan [2023] FJCA 182; ABU0078.2014 (18 August 2023)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CIVIL APPEAL NO. ABU 0078 of 2014
[High Court Civil Action No. 40 of 2010]

BETWEEN:

SAIFUN DIN
Appellant

AND

1. ABDUL IRSHAD KHAN
2. AJESH VIKASH PRASAD
3. ATTORNEY GENERAL OF FIJI
4. DR. JAOJI VULIVECI
Respondents

Coram : Dr. Almeida Guneratne, P

Counsel: No appearance for the Appellant
Ms R Devi for the 1^st Respondent
No appearance for the 2^nd Respondent
Ms S. Kapoor for the 3^rd and 4^th Respondents

Date of Hearing: 1^st August, 2023
Date of Decision : 18^th August, 2023

DECISION

Brief background to the present application

[1] By judgment dated 30^th November, 2017, the Court of Appeal decreed as follows:

“Orders:

1. The appeal against the judgment of the High Court in so far as the Third and Fourth Respondents are concerned is dismissed with costs fixed at $2,500.00 to be paid by the Appellant to the said Respondents. This shall be in addition to the costs of $2,500 ordered by the High Court in favour of the third and 4^th Respondents.
   
2. The appeal against the judgment of the High Court in so far as the First Respondent (the plaintiff in the original action) is concerned is partly allowed to the extent that, the award of $54,600 for future loss of earnings is reduced to $43,680.
   
3. In consequence of Order 2 above, the Judgment entered in favour of the First Respondent by the High Court in the sum of $164,028.70 is altered to a sum of $153,108.70.
   
4. In addition to the costs of $3,000.00 awarded to the First Respondent in the Court below, the Appellant is ordered to pay $1,500.00 as costs of this Appeal to the First Respondent.”
   

[2] In appeal the Supreme Court by its judgment dated 31^st August, 2018 affirmed the judgment of the Court of Appeal.

“Orders of Court:

(1) Application for leave to appeal is refused and the application of the Petitioner is dismissed.

(2) The judgment of the Court of Appeal affirmed.

(3) The Petitioner is directed to pay costs in a sum of $2,500.00 to the 1^st Respondent in addition to the costs awarded in his favour in the lower courts.”

[3] Thereafter, the 1^st Respondent (successful plaintiff in all three Courts) filed a summons dated 30^th January, 2022 seeking an order for payment of interest on the damages due to him.

[4] The matter of the said summons having come-up before me on the 30^th January, 2023, the Court, finding that notice had not been served on the appellant, directed summons to be served on the appellant’s personal address.

[5] Consequently, upon a fresh summons being filed on 16^th March, 2023 in compliance with the order of Court made on the 30^th January, (as per the relevant Affidavits of Service filed of Record), the appellant being absent and unrepresented, on 1^st August, 2023 when the matter was taken for hearing, the 1^st Respondent moved that the Court make an order on the said re-filed summons filed on the 16^th March, 2023.

The Terms of the Re-filed summons (dated 16^th March, 2023)

“THAT the Appellant/2^nd Defendant be ordered to pay interest on General Damages and Costs from the date of Judgment of the High Court of Fiji (HC) to realization as per the Judgment of the Fiji Court of Appeal dated the 30^th day of November, 2017.

THAT the Appellant/2^nd Defendant be ordered to pay the sum of $53,316.42 (Fifty – Three Thousand Three Hundred and Sixteen Dollars and Forty – Two Cents) which sum was short paid as interest payable on General Damages and Costs as per the Judgment.

THAT the Appellant/2^nd Defendant does pay the cost of this application as ordered by the Honourable Court.

THAT any other relief this Honourable Court deems just and expedient.

The 1^st Respondent/Plaintiff intends to read and rely upon the grounds contained in the Affidavit in Support of ABDUL IRSHAD KHAN of Korowiri, Labasa, Unemployed sworn and filed herein.

This application is made pursuant to Section 17 and 20 of the Court of Appeal Act[1949].”

Determination

[6] Although, initially I had some doubt as to whether a single judge could make the orders sought in the 1^st Respondent’s said re-filed summons or whether the matter needed to be fixed before the full Court, I was convinced that, a single judge has jurisdiction to make the orders so sought in pursuance of Section 20(1)(k) of the Court of Appeal Act (the Act) as the matter being “incidental” to the Appeal or even “ancillary” thereto.

[7] Having given my mind to the submissions made by the 1^st Respondent and the terms of his re-filed summons where Section 20 of the Act has been expressly referred to, I was able to resolve whatever doubt.

[8] In that regard I also derived guidance from the thinking in the High Court ruling in Silimaibau & Another v. Minister of Sugar Industry & 2 Others [2004] HBC 155/01L, 5^th March, 2004 per Gates, J which I adopt for this Court.

[9] Accordingly, I proceed to make my orders as follows.

Orders:

1. Orders sought in terms of the 1^st Respondent’s (present applicant’s) re-filed summons filed on 16^th March, 2023 (dated 28^th April, 2023) are allowed.
   
2. The Registrar is directed to send notice to the appellant of this decision both to his solicitors that appear on Record and to his personal address.
   

Hon. Justice Almeida Guneratne
PRESIDENT, COURT OF APPEAL