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Kaur v Housing Authority [1991] FJHC 49; Hbc0587d.88s (16 August 1991)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 587 OF 1988

Between:

BASANT KAUR
d/o Thakur Singh
Plaintiff

- and -

HOUSING AUTHORITY
Defendant

Mr. V. Parmanandam for the Plaintiff
Mr. H. Nagin for the Defendant

RULING

This is an application for an extension of time within which to file a notice of appeal to the Court of Appeal against the decision of Jayaratne J. delivered on the 14th of January 1991 in which he dismissed the plaintiff's claim and ordered immediate vacant possession to the defendant authority.

The Court's judgment was entered and sealed by solicitors for the defendant authority on the 24th of January 1991 and in terms of Rule 16 of the Court of Appeal Rules time for appeal began to run from that date and expired on or about the 7th day of March 1991.

Then on the 25th of March the registry issued a Notice of Appeal on behalf of the plaintiff and thereafter on the 12th of April the plaintiff sought a stay of execution. The present application was only filed a month later on the 15th of May with an affidavit sworn by a clerk in the plaintiff's solicitor's office deposing to the fact that the Notice of Appeal issued on the 20th of March had been lodged on the 11th of March.

I note at once that even without deciding the truth of that assertion the plaintiff's Notice of Appeal would in any event have been lodged out of time. Needless to say the "sequence" adopted by the plaintiff in filing her papers and applications after judgment was delivered, was quite irregular and ought not to have been entertained.

Be that as it may the defendant authority has filed an affidavit opposing the present application and deposing to the fact that: "The Plaintiff has already vacated the shop premises in question and the appeal would be an academic exercise."

At the hearing of the application counsel for the plaintiff (who did not appear at the trial) confirmed this latter fact and withdrew the application of the plaintiff seeking a stay of execution pending appeal.

In somewhat similar factual circumstance Lord Bridge said, in dismissing an appeal (without a hearing on its merits) before the House of Lords in Ainsbury v. Millington (1987) 1 WL 379, at p. 381:

"It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law where there is no dispute to be resolved."

I turn next to consider the plaintiff's present application and in particular learned counsel's submissions that the Notice of Appeal raises substantial issues of law and the absence of any prejudice to the defendant authority in granting the plaintiff leave to appeal out of time.

As to the first it is inappropriate for this court at this stage to seek to delve into the merits of the appeal other than to record that having read the judgment in question there is some support for the defendant authority's assertion in it's affidavit that:

"The judgment in this matter is basically on the credibility of witnesses and the plaintiff is therefore unlikely to succeed on appeal."

I make the additional observation that the grounds of appeal numbered 6 to 9 raises issues that were only obliquely referred to in the plaintiff's pleadings, evidence or written submissions before the trial judge.

In Kenneth John Hart v. Air Pacific Ltd. Civil Appeal No. 23 of 1983 the full court of the Fiji Court of Appeal in refusing leave to appeal out of time in that case approved of a statement of principle in the judgment of the New Zealand Court of Appeal in Avery v. Public Service Appeal Board (No.2) (1973) 2 NZLR 86 where Richmond J. said at p.91:

"When once an appellant allows the time for appealing to go by then his position suffers a radical change. Whereas previously he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal. "

and later in that same judgment the learned judge said at p.92 (when dealing with the question of delay):

"No doubt there may be many cases where this type of argument might prevail upon the Court to grant leave. Clearly however the Court is not restricted to such consideration. The rules do not provide that the Court may grant leave if satisfied that no material prejudice has been caused by the failure to appeal in time ... "

Learned Counsel for the defendant authority also referred to the case of Revici v. Prentice Hall Incorp and Others (1969) 1 ALL E.R. 772 in which it was held:

"(1) the rules of the court must be observed and it mattered not that the plaintiff has offered to pay the costs and that no injustice would be done to the other side; and

(2) if there was non compliance with the rules it must be explained; and prima facie if no excuse was offered no indulgence should be granted. "

In this latter regard the affidavit in support of the motion which surprisingly is provided by the plaintiff's solicitor's clerk baldly deposed that the defendant (sic) was overseas, but, as the defendant authority's affidavit correctly observed, her sons acted on her behalf throughout the proceedings and their failure in this material instance remains unexplained.

Having carefully considered the opposing affidavits and the submissions of learned counsels for the plaintiff and the defendant authority and mindful of the fundamental principles that guide the Court in the exercise of its discretion I do not consider that this is a proper case where justice requires that leave to appeal be granted and the application is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
16th August, 1991.

HBC0587D.88S