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IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CIVIL APPEAL NO. HBA0014 OF 1999
BETWEEN:
:
SHANTA SHAREEL KRISHNA DAVIE
Appellant
AND:
PARMOD ACHARY
Rdent
Counsel: D. S for Apor Applicant H. Nagin for Respondent
Hearing: 14th May 1999
Decision: 14th May 1999
DECISION ON APPLICATION FOR LEAVE
TO APPEAL OUT OF TIME
This is an application for leave to appeal out of time from a decision of the Suva Magistrate’s Court to order the Applicant
to transfer her half undivided share in property (CT No. 17054) to the Respondent. The order was made pursuant to property settlement
in divorce proceedings on 30th March 1998. This application for enlargement of time was filed in the High Court on 30th April 1999. The Court directed that it be heard inter parties.
The application is made pursuant to Order XXXVII Rule 4 of the Magistrate’s Courts Rules. That Rule provides:
"On the appellant failing to file the grounds of appeal within the prescribed time, he shall be deemed to have abandoned the
appeal, unless the court below or the appellate court shall see fit to extend the time."
The Court in considering the application may have regard to the following matters; the length of the delay, the reasons for the delay,
the merits of the appeal (whether the appellant has an arguable case) and any prejudice to the Respondent. (The Official Receiver -v- Petrie Ltd. Civil Appeal No. ABU0049/97). (per Shephard J)
The affidavit filed in support of the application, by Shanta Shareel Krishna Davie states that a Divorce Petition was filed by the
Respondent in the Suva Magistrate’s Court on 29th September 1997. The Petition was not served on her personally. She received a faxed copy of the Petition from the co-Respondent and
sought the advice of her solicitors. She states that since she did not receive the Petition personally, she was advised by her solicitors
that she was not obliged to attend court. On 30th March 1998 a Decree Nisi was issued by the court. The court also ordered the transfer of the Applicant’s undivided half share
in CT 17054, a house at 20 Tagimoucia Place Laucala Beach Estate to the Respondent.
The Applicant states that she was not aware of this order and that she left for the United Kingdom on 20th June 1998. On her return to Fiji on 18th March 1999, she was told by the Respondent’s counsel, Mr Nagin of the existence of the court order. She was told to vacate 20
Tagimoucia Place immediately.
She now wishes to appeal against the order on the grounds that she was not served, that there was no hearing on the transfer of her
share in the property, that the court exceeded its jurisdiction in dealing with property which had a value in excess of its civil
jurisdiction, without the consent of both parties, that the Fiji National Provident Fund (the mortgagee) had not consented to the
transfer and that there was no consideration for the Transfer.
The appeal, if this application is allowed, will be heard more than a year after the decree was made absolute.
The Respondent has filed an affidavit in reply. He states that the Petition was served on Mr Davenesh Sharma, the Applicant’s
counsel, who accepted service. Furthermore, counsel appeared for the applicant on 17th November 1997, 29th January 1998 and 27th February 1999. Neither the applicant, nor her counsel appeared thereafter and on 30th March 1998 there was no appearance on the Applicant’s behalf and the court proceeded to order the transfer of her share to the
Respondent. He states that the Applicant was aware of the orders to be made because the Decree Nisi was granted while her counsel
was present.
In support of the application, Mr Sharma for the Applicant made both oral and written submissions. He submitted that the delay in
filing an appeal was not caused by the applicant because she had been unaware of the order that had been made. He submitted that
the appeal had merit in that, the learned Magistrate had made a default order without jurisdiction, without considering whether the
Applicant was entitled to any consideration for the transfer, and without taking into account the fact that the property was jointly
mortgaged in favour of the Fiji National Provident Fund. Mr Sharma submitted that in making this order, the learned Magistrate had
failed to exercise fairness to all parties.
In response, Mr Nagin for the Respondent, submitted that counsel for the Applicant had accepted service on her behalf and had represented
her in court on several occasions. Further, he argued that since the Applicant and her counsel had chosen not to appear to contest
the order, they could not now raise the issue. He submitted that the appeal had no prospect of success and that the Magistrate had
no duty to consider the Applicant’s interests in the property. The prejudice to the Respondent was the lack of certainty surrounding
the divorce proceedings if the appeal was entertained, and his inability to deal with the property in question.
The Delay:
The delay in this case is considerable. Furthermore, it appears that the reasons for the delay appear to turn on failure to effect
personal service, counsel’s failure to appear in court and to adequately advise the Applicant of the legal consequences of the
Divorce Petition. However the main cause of the delay was the Applicant’s absence from the country for one year.
Service of the petition was not effected on the Applicant personally. Personal service is required by Rule 13(1) of the Matrimonial
Causes (Magistrate’s Courts) Rules Cap. 51, unless the court is satisfied that it is not reasonably practicable to effect personal
service in which case the court may order service in some other way. (Rule 13(5)).
Merits of Appeal:
The effect of failure to effect personal service on the proceedings, is to give the applicant a ground of appeal that is certainly
arguable. Although Mr Nagin argued on behalf of the respondent, that personal service was satisfied when counsel appeared in court,
I am of the view that this matter should be fully ventilated at the hearing of the appeal proper. Furthermore, it is also arguable
that the terms of the property settlement ordered by the court was not "just and equitable in the circumstances of the case"
in terms of section 86 of the Matrimonial Causes Act Cap. 51.
The issue of jurisdiction of the Magistrate’s Court in matrimonial proceedings has been dealt with by Pathik J in Aisha Bi -v- Mohammed Fida Hussein 1995 41 FLR. This ground appears to have little merit.
Prejudice:
On the issue of prejudice to the Respondent, it appears from the affidavits filed that the mortgage repayments are from rental income
from the property. The Respondent will certainly be prejudiced by the loss of certainty created by an appeal. However the appeal
is not in relation to the decree itself, but in relation only to the ancillary property settlement. The Applicant in losing a half
share in a house valued at $250,000.00, has far more to lose if this application is refused.
Finally, Mr Nagin for the Respondent argued that under section 90 of the Matrimonial Causes Act Cap. 51, an appeal does not lie from a decree of dissolution of marriage after the decree has become absolute.
However this is an appeal not against a decree absolute, but against an order for the settlement of property. As such I am of the
view that an appeal does lie from such an order.
I have considered the considerable delay in this case, together with the reasons for delay, the merits of the case and the possible
prejudice to both parties. I note that the circumstances were partly due to the conduct of counsel.
In the Official Receiver -v- Petrie Ltd. (Supra), Shephard J. said in considering a similar application:-
"It is sometimes said that clients should not be visited by the sins of omission of their legal advisers. But the other side
of the coin is that parties affected by what those solicitors fail to do are not duly the clients whom they represent but the other
parties to the litigation."
However in all the circumstances, and in particular in the light of the arguable case for appeal presented by the Applicant, I allow
the application for leave to appeal out of time.
The order for the transfer of the Applicant’s shares in CT 17054 is stayed until the hearing of the appeal.
N Shameem
JUDGE
At Suva
17th May, 1999
Hba0014D.99S
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