Fiji Law Reports

(2) n&#Th0; udg Jnt o Just Justadal vil A No. f 198ivered on the 3rd day of November, 1995 orderirdering thng the Appe Appellanellants tots to deli deliver vacant possession of the land they arepyingelelodi and the Jthe Judgmeudgment ofnt of the Court of Appeal delivered on the 28th day of February, 1997 dismissing the Appellants’ Appeal with costs to the Respondent be stayed pending the final determination of the Appellants’ Appeal to the Supreme Court.

The first questhat requ requires determination is whether a single judge has power to grant leave to appeal toSupreme Court. In&. In Fiji P Service Associaticiation v. The Registrar of Trade Unions & Anor – (Civpeal No. 31990)1990), (Judgment published 21 December 1992) I considered this very issue anue and came to the conclusion that a single judd no such power having regard to the provisions of Section 117(2) of the 1990 Constitution.tion. I held that the expression “in the opinion of the Court” must be construed to mean the full Court of Appeal. I came to this view notwithstanding the specific provisions of Section 12 of the Supreme Court Decree 1991 (Decree No. 47 of 1991) which read as follows:

0;12. < A einglgejud the court shat shall have power and jurisdiction:

(a)ⶌ < to deteraine pplication toon to the Court for leave to appeal in any any case under any provision of law;

Provided that any order,rder, direction or decision made or given in pursuance of this section may be varied, discharged or reversed by the Court when consistf three judges which may include the judge who made or gave gave the order, directions or decisions.”

I also hhat the constitnstitutional provision must prevail over any conflicting or inconsistent subsidiary legislation.

Mr.g, Co for the Appellppellants, has strongly submitted that I have taken too restrictive a ve a view of the constitutional provision. s cited N.Z., Australian and English cases in support of his argument and has urged that I at I deal with the leave to appeal application on the merits.

Public Se Associationon’s Case wherein I dealt with the matter in some detail. Even if I am in error on the question of jurisdiction it is not mandator a single judge to determine an application for leave if h if he is of the opinion that it is desirable that the application should be dealt with by the full Court, i.e. by a Court consisting of at least 3 judges. The facts, circumstances and issues involved in this case make it eminently desirable that the leave application should be dealt with by the full Court.

As a matter otorical inal interest the following provisions of the Supreme Court Appeal Rules (No. 2) 1988 made under Judicature Decree 1988 ough now repealed) are not without significance -

11 Every applicatiocatiocation for leave to appeal under section 19(2)(a) of the Judicature Decree shall be made to the Court of Appeal by notice of motion supported by an affidavit setting out easons why leave should be d be granted on the ground that the question involved in the appeal is one that, by reason of its great general or public importance or otherwise ought to be submitted to the Supreme Court.

I drrticular attentioentioention to the words “under the hand of the presiding judge” appearing in 11 (2) above.

What then is the fate of the stay application in the interim period? As I am not able to deal with the primary applicationinte interest of justice demands that I make an interim ord preserve the status quo in respect of the possession orderorder.

Consequently I make the following orders -
1. &ـ#160;#160; &#The applic forn for leaveleave to appeal is adjourned for hearing before the fullt at am onay 1997.

2. &160; &##160;ـ<< 160; The stayication is alis also adjourned to the same date and time for determination by the full Court.

3. ¦҈&< < Execution of tse poioer iser is stayed until 9.30 am 0 am on 21 May 1997.

4.  n&##10;& Applicants&#8ts&#8Couns delio the Court of Apof Appeal Registry 3 extra copies of his whis writteritten submissions together with 3 extra copies of his list of authorities, wit4 day>

;

5. #160;&#160  &##160;ـ C60; Costs osts of this application to be determined by the full Court.

(Applicatidjourned tned to the full Court.)