IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBM 9 of 2011L

BETWEEN:

JAMES PETERS
Applicant

AND:

SEASHELL @MOMI LTD
Respondent

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr S Maharaj (Applicant)
Ms V Patel (Respondent)

Solicitors: Suresh Maharaj & Assocs (Applicant)
Vasantika Patel (Respondent)

Dates of Hearing: 13 February 2012
Date of Judgment: 15 February 2012

INTRODUCTION

[1]	On 8 April 2009, the learned Magistrate in Nadi ruled that he had no jurisdiction to hear the applicant's claim. The applicant then lodged an appeal against that ruling on 6 May 2009 within the time limited by the Magistrate Court Rules. The appeal eventually came before the Master who gave directions for the filing of affidavits and submissions on several occasions. On 24 March 2010, the applicant having not filed his submissions as directed, the Master struck out the appeal and awarded costs of $500 to the respondent.

[2]	The applicant now applies for enlargement of time to appeal the Master's order of 24 March 2010.

[3]	The respondent also filed an application for security for costs.

[4]	Both applications were heard on 13 February 2012 after which I reserved judgment to be delivered on notice. This is my judgment.

THE CASE HISTORY

[5]	The relevant case history is as follows. The applicant's Writ of Summons was filed in the Nadi Magistrates Court on 29 November 2006. The trial commenced on 28 June 2007 before His Worship Mr S M Shah and the applicant gave his evidence and was cross examined and re-examined. The hearing continued on 30 July 2007 and 2 August 2007 and 5 December 2007 and at the close of evidence the learned Magistrate gave directions for the filing of written submissions with judgment to be delivered on notice. That judgment was not delivered by the time the matter came before His Worship Mr M N Sahu Khan on 8 October 2008, so the learned Magistrate ordered a hearing de novo. That hearing took place on 24 and 26 February 2009. After the plaintiff gave his evidence, the learned Magistrate gave directions for counsel to file written submissions on jurisdiction. On 8 April 2009, Mr Sahu Khan delivered his ruling on jurisdiction in which he held that the Magistrates Court did not have jurisdiction to hear the applicant's case. I note that the question of jurisdiction was raised in both the hearings before their Worships Mr Shah and Mr Sahu Khan.

[6]	The applicant filed his appeal against this ruling on 6 May 2009 in HBA 15 of 2009L. The appeal eventually came before the Master on 24 March 2010 who struck it out with costs to the respondent of $500 on the basis that the applicant had not filed his submissions as directed. Although it appears from the file notes that both parties appeared by counsel, no hearing on the merits was conducted by the Master and no reasons were given by him for striking the appeal out other than the fact that 14 days earlier, he had ordered that unless the applicant filed his submissions within 14 days his appeal would be struck out – what is commonly referred to as an "unless" order.

[7]	On 10 May 2010, the applicant filed a summons in HBA 15/2009L to have the Master's orders of 24 March 2010 set aside and his appeal re-instated. That summons was first called on 26 May 2010 before the Master who gave directions for the filing of affidavits. The affidavits were eventually filed and on 7 October 2010 the summons came before one of the Judges. The learned Judge was informed that the parties were negotiating settlement so the application was further adjourned on several more occasions for that purpose. The parties could not agree. On 4 July 2011, according to the Judge's file note, Mr Maharaj submitted that the Master's order had to be appealed so he would have to file an application to enlarge time to appeal the order. On that basis, the learned Judge dismissed the application for re-instatement.

[8]	The application to enlarge time to appeal as foreshadowed by counsel was filed on 12 August 2011 as a miscellaneous action, hence this action HBM 9 of 2011L.

[9]	The respondent also filed on 30 September 2011 a summons for security for costs pursuant to O 23 rr 1(a) and (2) of the High Court Rules 1988.

[10]	Both applications were heard on 13 February 2012.

THE BACKGROUND FACTS

[11]	The applicant entered into an agreement with the previous owner of the Seashell Cove Resort on 28 October 2002. The agreement stated that the applicant would lease from the owner accommodation known as "Bure 2A" for "365 days per year with a minimum of four years beginning November 1st 2002 and is automatically renewed thereafter annually. The cost of this lease is $US10,000 for the first year and $F12,500 each year thereafter, payable on November first of each year". It further stated that the agreement "will be renewed after four years providing both parties agree to any change in lease payments".

[12]	The resort was later sold to Karigarin Ltd in April 2005 which later changed its name to Seashell Cove Limited. The applicant was in occupation of Bure 2A at the time of the change of ownership and it appears that his presence was known to the new owners. He tried to negotiate a continuation of his lease with the new owners but was unsuccessful. On 27 October 2006, their solicitors gave notice to the applicant to vacate the Bure on 31 October 2006. It was this notice that sparked the issue of the Magistrates Court action.

[13]	His Writ of Summons sought several injunctive orders which were effectively to enable him to regain possession of Bure 2A as well as orders for damages and compensation for breach of the lease agreement limited to the then jurisdiction of the Magistrates Court of $15,000.

RE-INSTATE OR APPEAL?

[14]	There appears to be much confusion as to whether the striking out or dismissal of an action pursuant to an "unless" order where no hearing on the merits took place should be appealed or whether it should be the subject of an application to re-instate before the Master or Judge that made the order. Recently, several decisions of this Court were delivered on the question: Westmall Ltd v CUL (Fiji) Ltd [2010] FJHC 448; HBC175.2001L (6 October 2010); Nakesu v Lakoiniusiladi [2012] FJHC 828; HBC113.2009 (27 January 2012); Samat v Qelelai [2012] FJHC 844; HBC201.2002L (30 January 2012); Gulf Seafood (Fiji) Ltd v Native Land Trust Board [2012] FJHC 853; HBA28.2011 (2 February 2012); NBF Asset Management Bank v Krishna [2012] FJHC 835; HBC129.1999L (2 February 2012). The consensus is that the proper procedure is an application to re-instate rather than an appeal.

[15]	That being the case, the applicant's current application to enlarge time to appeal is misconceived. But, having regard to the fact that his counsel had filed and later withdrew an application to re-instate, on a misapprehension of the proper procedure, I would deal with his current application as if it were an application to re-instate rather than an application to enlarge time to appeal.

[16]	Further, it is common ground that the initial appeal was filed in time. So in that sense the respondent could not be said to be disadvantaged or prejudiced if the appeal were to be re-instated.

SHOULD THE APPEAL BE RE-INSTATED?

[17]	The appeal should be re-instated if the Master was justified in dismissing it, albeit summarily. In other words, is the appeal a clear case in which the Court should exercise its power to summarily dismiss? In the present case, the question of delay does not arise, so the principles set out in Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) are of little assistance.

[18]	What is relevant and, in my view, decisive, are the prospects of the applicant succeeding on his appeal against the learned Magistrate's ruling that the Magistrates Court had no jurisdiction. To re-instate the appeal when it had no prospects of success, would be prejudicial to the respondent.

[19]	On the other hand, the applicant's claim based on breach of contract is not statute barred yet, the cause of action having arisen sometime in October 2006 when the notice to vacate was given. So even if I do not re-instate the appeal, the applicant is free to file his claim in this Court and would not be prejudiced in that respect.

IS THE APPEAL HOPELESS?

[20]	His Worship Mr Sahu Khan held that s 2(1)(b)(i) of the Magistrates' Courts (Civil Jurisdiction) Decree 1988 limited his jurisdiction to claims between landlords and tenants for possession of land where the annual rental did not exceed $2,000. In this case, the annual rent was $US10,000 later changed to $FJ12,500. His Worship further held that a subsequent amendment in 2007 by s 2 of the Magistrates' Courts Act (Amendment) Promulgation 2007 which extended the jurisdiction to annual rental not exceeding $50,000 did not operate retrospectively to assist the applicant.

[21]	This is the substantive point on appeal. Was the learned Magistrate correct?

[22]	Section 2(1)(b)(i) of the Magistrates' Courts (Civil Jurisdiction) Decree 1988, which replaced s 16 of the Magistrates' Courts Act [Cap 14], provides that a resident Magistrate shall have and exercise jurisdiction in civil causes:

in all suits between landlords and tenants for possession of any land (including any building or part thereof) claimed under any agreement or refused to be delivered up, where the annual value or annual rent does not or did not exceed two thousand dollars;

[23]	Mr Maharaj rightly conceded that his client's claim is for renewal of the lease of the Bure. That then makes the claim one between landlord and tenant for possession of land within the meaning of s 2(1)(b)(i). The annual rental here is more than $2,000 so the claim fell outside the jurisdiction of the Magistrates Court. Further, it is clear from the provisions of the 2007 Promulgation that the extended jurisdiction does not operate retrospectively.

[24]	I therefore agree with the ruling of the learned Magistrate and would not allow the appeal if it was heard by me.

[25]	Mr Maharaj also submitted that I should order that the Magistrates Court action be transferred to this Court for hearing. I do not think that is an option that is open to me or appropriate, because it is not provided for in the Magistrates Court Act or the High Court Act and I have grave doubts that I could do that under this Court's supervisory jurisdiction under s 6(3) of the Administration of Justice Decree 2009.

CONCLUSIONS

[26]	The appropriate application should have been an application to re-instate rather than an application to enlarge time to appeal.

[27]	In either case, I have come to the conclusion that the application (whether to re-instate or to enlarge time to appeal) should be refused because the appeal has no prospects of succeeding.

[28]	In the circumstances, it is not necessary for me to decide the respondent's application for security for costs.

COSTS

[29]	Having regard to the misapprehension of the proper procedure by the parties and the Court I think the Master's order for costs made on 24 March 2010, which remains unsatisfied, should be set aside and, for the same reasons, no costs should be ordered for the hearing of these two applications.

ORDERS

[30]	I therefore order as follows:

(a)	The appellant's application for enlargement of time to appeal is dismissed.

(b)	The Master's order for costs made on 24 March 2010 is set aside.

Sosefo Inoke
Judge