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Rewa Rice Fiji Ltd v Prasad [2022] FJCA 23; ABU084.2020 (31 January 2022)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE EMPLOYMENT RELATIONS COURT

CIVIL APPEAL NO. ABU 0084 of 2020
ERCA NO. 01 OF 2018

BETWEEN:

REWA RICE FIJI LIMITED

Appellant

AND:

KESHWAN PRASAD

Respondent

Coram : Almeida Guneratne, AP


Counsel : Mr I. Ralovo for the Appellant
Mr A. Sen for the Respondent

Date of Hearing : 26 January, 2022
Date of Ruling : 31 January, 2022

R U L I N G

[1] This is an application seeking enlargement of time to file Notice of Intention to appeal and to file Notice and Grounds of Appeal against the decision of the High Court dated 30^th April, 2020. By that decision the High Court dismissed the Appellant’s appeal against the decision of the Employment Relations Tribunal (ERT) which had refused to set aside the Judgment of the Chief Tribunal.

[2] There is no doubt that there have been lapses on the part of the appellant in prosecuting this appeal.

[3] However, even if I am to excuse the length and the reasons for the delay there is the prejudice factor. In that regard that factor stands in favour of the Respondent.

[4] Nevertheless, going on authoritative precedents (eg. NLTB v. Khan CBV 0002 of 2013, 15 March 2013). I am obliged to look as to whether there are merits in the Appeal as per the Grounds 1(a) to (c) and 2 (a) to (d) in the Notice of Appeal filed on 25^th September, 2020.

The Crunch issue

[5] Although several matters have been urged in the said grounds the crunch issue is contained in paragraph 18 of the Affidavit in Support sworn by Benjamin Jaymesh Ram dated 25^th September, 2020 viz: That,

“The Appellant have never had its matter heard before the Court and have not ever put any evidence before the Court and therefore this matter has never been decided on merits.”

[6] The Appellant consequently argued that its right to be heard has been denied thus alleging there has been a breach of the principles of natural justice, to be specific, the principle audi alteram partem.

How does that principle operate in Court proceedings where two contesting parties are involved?

[7] There is no doubt that the right to be heard is a fundamental right and therefore a substantive right. But, that right must be asserted.

Substantive Law and Procedural Law

[8] To elaborate, the right to be heard may be there. But that right must be asserted through procedural rules decreed by the law. I re-iterate an inveterate proposition which I have laid down in some of my earlier Rulings that, procedural rules are the handmaid of the substantive law – conduit through which the substantive right must be vindicated.

Has the Appellant satisfied that procedural requirement?

[9] In my endeavour to answer that question I looked at the impugned Judgment of the High Court discerning as I did the principal features and reasoning contained therein without the need to repeat what I have stated in paragraph [1] of this Ruling as to the background of the proceedings.

Principal Features and Reasons contained in the Judgment of the High Court

[10] 1. “That, the substantive matter was heard in the absence of the employer although

the employer was represented on the day of the hearing by Counsel Mr Ratule.” (paragraph 1 of the High Court Judgment).

2. “4. The ERT found that it was evident from the records that the employer was well and truly aware of the hearing date being set in the matter and also had a counsel appearing on its behalf in court. It therefore could not complain about its non-appearance when it was evident from the record that the employer was represented on the day of the formal proof.

5. The ERT also found that there was no delay in making the application for setting aside and no defence on merits presented to the court. It therefore refused the application to set aside the judgment.”

[11] Her Ladyship recapped the contention before her at paragraph 6 of Her Ladyship’s judgment and reasoned thus:

“8. I must first say that I have perused the original file and it does not show that this matter was ever struck out for want of jurisdiction. I cannot fathom how this contention is made. I believe that when this issue was raised with the ERT in the setting aside application, the ERT could not find evidence of this from the records. That is why the ERT did not cover that aspect in the judgment.

9. I do not accept that the matter was ever struck out on the grounds of jurisdiction. There is no evidence of that.
10. Secondly, if the appellant was concerned about the jurisdiction issue, it should have raised it before the ERT during the hearing or the setting aside application and required a ruling on that. I find from the records that this is the first time that the matter of jurisdiction is raised in this Court.”
    

In re: the employee’s claim of unfair dismissal and compensation

[12] Her Ladyship held thus:

“14. The ERT can hear claims up to $40,000.00 Neither the Form ER1 nor the terms of reference mentions or seeks compensation beyond $40,000.00. In that regard the claim is not beyond the jurisdiction of the ERT. The ERT could proceed to hear the claim as per the terms of reference.

15. I now turn to the next issue which is the notice of hearing not being sent to the employer. The allegation is false as identified by the ERT. The notice was emailed to the counsel for the employer on the same addresses the previous notices were sent and acknowledged by the employer.
16. To add to that, the employer was represented by Mr Ratule on the day but he did not take part in the hearing. The reasons are not noted but could obviously have been that he was not well instructed to carry out the hearing.”
    

Conclusion reached by the High Court

[13] Her Ladyship concluded thus:

“18. I do not find that the employer was not aware of the hearing date and that in failing to take part in the proceedings, it has only itself to blame. No reasons have been forwarded why the employer took such a stance and therefore I cannot consider whether its absence from the proceedings was valid and should be excused.”

Determination

[14] That is a strong finding and I sitting as a Single Judge of a second tier Appellate Court am certainly not inclined to interfere with the same, if not for any other reason, in as much as I could not find any error in the High Court Judgment, misdirection or non-direction particularly where Her Ladyship had gone through the original records and come to strong findings of fact.

Some Concluding Remarks

[15] Before concluding, I cannot resist the temptation to recall that proverbial query viz: “could one pardon the child who killed his parents and sought clemency on the ground that he is now rendered an orphan?”

[16] Regrettably, could the Appellant who had been lax (his lawyers included) be excused in the factual cum legal context that has been recounted above? I do not think so. (vide: in that regard Her Ladyship’s observation at paragraph 16 of her Judgment).

[17] The facts and circumstances in the present case stand distinguished from the situation that appealed to the Supreme Court in Fiji Industries Limited v. National Union of Factory and Commercial Workers CBV 008 of 2016, 27 October 2017 which I, (writing as a Single Judge), in Jone Batinika v. iTaukei Land Trust Board, ABU 007 of 2020, 14 August, 2020 referred to at page 7 of my Ruling in that case).

[18] I say so for the reason that in the Fiji Industries case (supra), the issue was whether a mistake on the part of lawyers could have been visited upon a party litigant (the Supreme Court view as opposed to the view I had expressed in the Court of Appeal).

[19] In the Jone Batinika case, (supra) my approach as a Single Judge of the Court of Appeal was when I felt whether the Supreme Court view ought to be extended to a situation where there had been a breakdown of communication between a party litigant concerned and the lawyers, a matter I left open for the Full Court of the Court of Appeal to determine.

[20] In contrast, in the instant case, the Appellant was represented at the impugned proceedings in question. The Appellant had been put on notice via email as to the relevant date when the case was being called (which the Appellant now seeks to put in issue on the basis that, that was not proper notice when the Appellant was put on call.

A brief reflection on the history of a party being put on “Call” or “Notice”

[21] The past history of all developed judicial systems reveal that the said requirement of being put on “call or notice” originated with “personal notice”. Then had come the concept of “substituted notice” (“ordinary postal service” and then “registered postal service” followed by “fiscal service”). Given the present advancement in information technology and electronic communication all that had come to be replaced by the medium of “e or g-mail” (a practice entrenched in the procedural jurisprudence of the Republic of Fiji).

[22] This is a matter I take judicial notice of for which reason I reject the Appellant’s said contention on the alleged improper notice or call.

Re : the provisions of Order 55 Rules 3 and 4 of the High Court Act and Order 37 of the Magistrate’s Court Rules

[23] Having perused the said Rules (though addressed by the Appellant) I could not find anything in those provisions that could have aided the Appellant in this application.

[24] Accordingly, I proceed to make my Ruling and Orders in this matter as follows:

Orders of Court

1. The Application of “the Appellant” is refused and/or dismissed.
   
2. The “Appellant” is ordered to pay to the Respondent a sum of $3,000.00 within 21 days of notice of this Ruling which shall be in addition to the costs ordered by the High Court in its Judgment.
   

Almeida Guneratne
ACTING PRESIDENT, COURT OF APPEAL