IN THE HIGH COURT OF FIJI AT SUVA
CENTRAL DIVISION
CIVIL JURISDICTION

Civil Action No. HBC 64 of 2023

IN THE MATTER of the Land comprised of Certificate of Title No 10125, the property of Netan Singh aka Nitendra Singh, as the Administrator De Bonis aka Bir Singh lately of 267 Fletcher Road, Vatuwaqa, Suva, Plumber, Deceased, Intestate.

BETWEEN:	NETAN SINGH aka NITENDRA SINGH of Lot 5, Khalil Road, Lakena Irrigation Nausori, Handyman as the Administrator De Bonis Non of the Estate of DIP SINGH aka BIR SINGH lately of 267 Fletcher Road, Vatuwaqa, Suva, Plumber, Deceased, Intestate.
PLAINTIFF/RESPONDENT

AND:	RAMEN SINGH aka RAMENDRA SINGH of 267 Fletcher Road, Vatuwaqa, Suva, Retired.
DEFENDANT/APPELLANT

For the Plaintiff/Respondent	: Ms Devi N.
For the Defendant/Appellant	: Mr Kumar V.
Date of Hearing			   	: 25th June 2025
Before			     	: Waqainabete-Levaci S.L.T.T, Puisne Judge
Date of Judgement		    	: 9 October 2025

 J U D G E M E N T
(APPLICATION FOR LEAVE TO APPEAL OUT OF TIME)

PART A - BACKGROUND

1.	The Appellant/Defendant has filed Summons and Affidavit on 15 August 2024 seeking for Leave to Appeal out of Time of the decision of the Acting Master delivered on 3rd of June 2024. The Masters decision was as follows:

‘’37. Consequently the Court makes the following final orders:

a.	The Defendant is hereby ordered to deliver the immediate vacant possession of the property described in the summons filed on the 07/03/2023 and described fully in the Certificate of Title No 10125 and registered pursuant to the transmission of death on the 13/12/2021, to the Plaintiff, in order to facilitate the swift administration of the estate of the deceased, Dip Singh aka Bir Singh.

b.	Defendant shall in any event deliver the vacant possession as ordered above in order no. (a) above, in not less than 30 days from the date of this judgement;

c.	The Defendant is further ordered to pay a summarily assessed cost of $700.00 to the Plaintiff, within 30 days from today as costs of the action.’’

2.	The Respondent/Plaintiffs had filed their Affidavit in Opposition and the Appellant/ Defendant had responded accordingly.

PART B - AFFIDAVITS

3.	The Appellant/Defendant deposed his Affidavit in Support stating the Plaintiff/Respondent instituted a Vacant Possession application for the property located at 267 Fletcher Road legally described as Certificate of Title No 10125 (‘referred to as the property’) which he currently resides in together with his brother Atendra Singh.

4.	He alleges he is a beneficiary of the Estate of the owner, the late Dip Singh aka Bir Singh for which the Plaintiff/Respondent is the Administrator De Bonis-Non.

5.	He admitted he did not frequently pay bills or city rates towards the upkeep of the property and maintaining the property but he had spent his savings at certain times to make payments.

6.	He admitted in his Affidavit that he had represented himself and had exhausted his savings as well was sickly of old age and expended his monies to represent himself and was unaware of the right to Appeal until he approached Sunil Esquire, where he was informed of the steps to take. He argues that the delay since the judgment is not substantial and does not prejudice the Respondent/Plaintiff. He argues he had met the criteria to rebut the presumption of ownership as he had an interest on the property.

7.	The Respondent/Plaintiff relied upon their Affidavit filed deposing that he is the Administrator De-Bonis Non but that the Appellant/ Defendant and him are two of the 7 beneficiaries with the Appellant/Defendant holding 2/15 shares.

8.	The Respondent/Plaintiff opposes the application for leave for extension of time to appeal on the basis that there were city rates owing to the sum of $78, 327.18 for which the Appellant/Defendant has not contributed towards although he resides on the property.

9.	The Respondent/Plaintiff deposes that the Master was correct in his ruling as the Appellant/Defendant was properly represented by Counsel throughout the proceedings and was capable of obtaining legal advice as to leave.

10.	In response, the Appellant/Defendant had agreed, in his response to the originating Summons for vacant possession, to vacating the property provided Respondent/Plaintiff issues him his share as a beneficiary from the proceeds of the sale. The Respondent/Plaintiff has refused to do so. 

11.	The Appellant/Defendant argues that the Respondent/Plaintiff had failed to show he had the authority and consent to represent the other beneficiaries in evicting the Appellant/Defendant from the property. As Administrator De-Bonis Non for the Estate of Dip Singh aka Bir Singh, the Respondent/Plaintiff has not administered the Estate of the deceased but has proceeded to file eviction against the Appellant/Defendant.

12.	The Appellant/Defendant challenges the entitlement to shares in the property by Gambhir Singh and Raveena Devi, step-father and step sister as he understands he and his siblings on the true beneficiaries for the property after his father had passed and his mother, who was the Administrator, had passed as well.

LAW, SUBMISSIONS AND ANALYSIS

13.	The right to appeal from a Masters decision is provided for in Order 59 Rule (8), time for appealing is in Rule (9) and extension of time to appeal in Rule (10) of the High Court Rules. It prescribes as follows:

PART 11 – APPEAL FROM THE MASTER
Appeal from Master’s decision (o.59, r.8)
8.(1) An appeal shall lie from a final order or judgment of the Master to a single judge of the High court.
Extension of time (0. 59, r. 10)
 10. (1) An application to enlarge the time period for filing and serving a notice of appeal or cross-appeal may be made to the Master before the expiration of that period and to a single judge after the expiration of that period. 
(2) An application under paragraph (1) shall be made by way of an inter-parte summons supported by an affidavit

PRELIMINARY OBJECTIONS – PROCEDURAL DEFECT
14.	The Plaintiff/Respondent had raised two procedural objections.

15.	Firstly, they argued that the Defendant/Appellant had initiated the application for Leave to Appeal out of time by Summons and Affidavit which was wrong in form and defective. They argued that the appropriate form was by way of a Motion and Affidavit, referring to Order 32 of the High Court Rules.

16.	The Plaintiff/Respondent also contends that the Affidavit is not in accordance with Order 41 of the High Court Rules pertaining to its contents and indorsement.

17.	Order 59 (2) of the High Court Rules prescribes that an application for Extension of Time to seek Leave to Appeal should be made by way of an inter parte summons.

18.	Order 32 Rule (3) of the High Court Rules prescribes that an application for extension of any period of time may be served on the day in the summons or unless the Court orders and served not less than 2 clear days.

19.	The Court finds there is no error in the application for Extension of Time sort by the Defendant/Appellants.

20.	The Affidavit had appended the previous Affidavits relying upon the deposition in the Affidavits for the Appellant.

21.	These are not contested but to argue that they were not deposed at all and contrary to the requirements under the provisions of Orders 41.

22.	The Court finds that the Affidavit can append the Affidavits and refer to previous Affidavits as well. There is nothing contrary to relying upon them in raising their facts.

23.	It is correct there was no indorsement. However, this is not fatal to the merits of the matter, and an irregularity which does not render the Affidavit void.

PRINCIPLES OF LEAVE TO APPEAL

24.	In Siya -v- Neil [2023] FJHCFD 5; Family Appeal No 13 of 2022 (14 July 2023) Wati J referred to the following decisions to consider the appropriate principles to grant leave:

1.	This Court would like to highlight the often quoted and referred portion from the Privy Council decision in Ratnam v. Cumarasamy and Another [1964] 3 All E.R at page 935; (Lord Guest in giving the opinion of the Board to the Head of Malaysia):
“The rules of Court must, prima facie, be obeyed, and, in order to justify a Court in extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of the litigation.”
10. Extension of time to appeal is a request to the Court. The Court must be satisfied that there is an honest and acceptable explanation for the reasons for the delay. 40 days is a substantial period of time. Time limits are prescribed for a reason and the Court has discretion to extend those limits only for just and fair reasons. In Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA), 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 an indulgence by the Court. The onus rests on him to satisfy that in all the circumstances the justice of the case requires that he be given the opportunity to attack the judgment from which he wishes to appeal.”
Richmond J went on to emphasize that the discretion was wide and said (at P.92):
“In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant on the one hand for leave to be granted together with the effect which the granting of leave would have on the other persons involved.”

25.	Bearing in mind these principles the Court considered the submissions by the parties.

Inordinate delay

26.	The Appellant/Defendant seeks Leave for Extension of time to Appeal. This was  filed on 15 August 2024, after Acting Master had made his decision on 3 June 2024, this application is around 1 month and 12 days in excess of the requisite time.

27.	Despite the Applicant/Defendant arguing that he is sickly and had represented himself predominantly in the proceedings, the court records show that he was represented by Counsel throughout the proceedings. He therefore was capable of raising his legal arguments and was properly represented.

28.	There are delay in the proceedings. However delay is not the only dominant factor to determine whether or not to grant leave.
Reasons for Delay

29.	The Appellant/Defendant had argued that as a self-representing individual, he was unaware of court processes until he was later advised.  He was an old man and was not financially sound. If he had known the procedures, he would have made the application within requisite time.

30.	The Respondent/Plaintiff responded that these are not good enough reasons for his failure to file his application within time. He was aware of the procedures when he was previously represented. It was only after the Ruling was delivered that he sat on his laurels and failed to seek proper legal advise until the time for appealing had expired.

31.	Having considered these submissions, the Court finds that the Appellant/Defendant’s reasons do not hold weight and are flimsy. He was represented by Counsel, even during these proceedings.

32.	It was upon him to seek for further legal advise after the decision was made against him.  The Appellant/Defendant submitted that he was unable to secure legal counsel until after the appeal period..

33.	However, in line with the decision of Fiji Revenue and Customs Services -v- New India Assurance Company Limited CBV 0020/2018 Kumar J sitting as a single judge in court of Appeal in an application for Extension of Time to Appeal to the Supreme Court found that the Court of Appeal had refused to grant Extension of Time where the counsel could not be paid his legal fees.

34.	The Court finds that the reasons by the Defendant/Appellant is neglectful and not good reasons accepted by the Court.

Prospects of Success

35.	The Appellant/Defendant has argued that the decision of the Master was an error of law and fact as the Master had failed to consider that the Appellant/Defendant was a beneficiary to the property and hence had proven his interest.

36.	The ownership of the property and the handling of the affairs of the property by the Administrator De Bonis Non was a matter for the Courts to determine in a full trial or hearing and could not be determined in summary proceedings. 

37.	All the Defendant was required to do was to show tangible evidence which he had done so, which is not contested to by the Plaintiff/Respondent.

38.	The Master had considered the two forms of equitable interests in his ruling. He found that both was not established by the Affidavit he received. He found that the Defendant/Appellant had not established, at least by some form of evidence that he had a beneficial equitable interest in the property.

39.	The Court when considering these matters, finds that the Master made his decision from the evidences before him. He had concluded that the Defendant/Applicant had not challenged the appointment nor the manner in which the Administrator/Executor was administering the Estate. 

40.	Given that Order 169 is a summary proceedings, it was upon the Master to determine whether or not for the Appellant/Defendant to vacate the premises.

41.	The Court finds that the Master had the alternative decision of dismissing the application in order to allow the Appellant/Defendant to challenge the Executor/Administrator’s powers.

42.	The Court finds that the Master had exercised his powers appropriately. There are no prospects of success if the matter was to proceed to hearing of the Appeal. If the Appellant/Defendant has failed to prove in his Affidavit, it would be a harder task for the sitting trial judge to determine at trial.

Prejudice
43.	The Appellant/Plaintiff has not been able to properly handle the affairs of the Estate since the orders were issued for vacation of property. This has prejudiced the fruits of the Judgment.

Costs
44.	Costs awarded for $700 to the Respondent/Plaintiffs.

COURT ORDERS

45.	The Court Orders as follows:

(a)	That the Application for Leave for Extension of Time to Appeal is dismissed;

(b)	That costs be awarded to the Plaintiff/Respondent for $700.

……………….………………………………
Ms Senileba LTT Waqainabete-Levaci
Puisne Judge of the High Court of Fiji