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Ram v Lata [2008] FJHC 282; HBM04.2006 (3 March 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. HBM 04 of 2006

BETWEEN

SHARNIL SHALESH RAM
s/o Madam
Appellant/applicant

AND

SANAY LATA
d/o Paltu
Respondent

Appearances: Bale Law for the appellant/applicant
Respondent in person

Date of Hearing: 03 March 2008
Date of Decision: 03 March 2008

RULING

[1] By motion dated 26 January 2006 the applicant sought an order "that leave be granted to appeal the decision of His Worship P. D. Samusamuvodre at Sigatoka Magistrate Court on 29 May 2005 regarding the said matter – Affiliation No. 04/2004". The motion was filed by the applicant’s solicitors at the time. In support of the application is an affidavit in support by the applicant. In summary he contends that:

i) he was ordered to pay maintenance without there being proof that he was the punitive father of the child born on 20 March 2004

ii) the complainant is his cousin and by virtue of Indian custom, the complainant and her family should have approached his family to get married

iii) the child was born on 20 March 2004 five months earlier than the date on which the complainant was married

iv) he had never had sexual intercourse with the complainant

v) that the Learned Magistrate erred in law in not allowing a DNA test on both him and the child to be carried out.

[2] The grounds of appeal relied on are:

a) "that the Learned Magistrate having refused the appellant/defendant right to make direction for the DNA test, by both, on myself and the illegitimate child, I understood that the decision made by His Worship Magistrate is inconsistent with the several common ruling regarding this matter and therefore void"

b) "that the Learned Magistrate was wrong on entering judgment against me because there was not sufficient evidence before the Learned Magistrate to demonstrate satisfactorily that I was the punitive father of the illegitimate child".

[3] The motion was struck out by Justice Connors on 3 March 2006. The record reflects that there was no appearance by either party on that day. A notice of change of solicitors was filed on 20 July 2007, almost nineteen months after the motion had been struck out. Also filed on that day was an application on behalf of the applicant to re-instate the motion earlier struck out. That is the application before me. I first dealt with this matter on 10 August 2007. The respondent had not been served. The returnable date on the re-instatement application was extended to 28 September 2007. On 28 September the respondent appeared and informed me that she was opposing the application. The matter was adjourned to afford her the opportunity to obtain legal advice. On the adjourned date, 2 November 2007, counsel for the applicant, Mr. Antonio Bale failed to appear. I was informed that he was "engaged in Suva". The matter was adjourned for hearing on 30 November 2007. On that day the hearing could not proceed because the file could not be located by the Registry. A new hearing date was assigned, 13 February 2008. On that day the hearing, again could not proceed because Mr. Bale, having sworn the affidavit in support of the application to re-instate, could not appear to argue the application. It was unethical for him to appear in a matter where he had sworn an affidavit and intended to rely on the contents of his affidavit in his argument to re-instate the application. I further adjourned the hearing to allow Mr. Bale to instruct a lawyer to argue the application on his behalf. The hearing was adjourned to this morning.

[4] The applicant appeared in person this morning. Mr. Bale by letter dated 28 February 2008 informed the ‘Officer in Charge’ of the Lautoka High Court that he no longer acts for Mr. Ram, the applicant. Suffice it to say that he remains solicitor on record unless leave has been granted that he cease to be the barrister and solicitor acting for Mr. Ram under the provisions of Order 67 Rule 6 of the High Court Rules. This morning Mr. Ram handed the Registry a letter dated 28 February 2008 containing submissions by one Mr. Eliki Gaunavou who calls himself a lawyer/ paralegal. Mr. Ram stated that he relies on the contents of that letter.

Consideration of application

[5] Mr. Bale’s affidavit in support states that he remembers service of a notice of adjourned hearing confirming the hearing date of the initial application on 3 March 2006. He said that at the time he was engaged in Suva and could not appear in the Lautoka High Court on the 3rd of March. He does not explain why it took him 14 months to file the application to re-instate the application for leave to appeal. The delay is inordinate, to say the least. What is also of concern is there is an absence of an explanation in the earlier application justifying the late filing of the leave to appeal application, which was filed some nine months after the Learned Magistrate’s decision. The delays in both applications have not been explained at all. It is incumbent upon applicants in applications of this nature to provide a satisfactory explanation as to delay. This has not been done at all. In the exercise of my discretion I have also considered the length of the delay which I have found to be excessive and also whether the proposed grounds of appeal raise arguable issues. Although I am not required to make an assessment of the merits of the appeal, if leave were granted, in this case the proposed grounds do not raise arguable issues. I’m required to take into account the likely prejudice to the respondent. Clearly the respondent has been and will be prejudiced by the inordinate delays in prosecuting both applications. Mr. Bale has completely failed to lay the necessary legal foundation for the application at hand. The motion dated 13 December 2006 and filed on 20 July 2007 is entirely without merit and is dismissed.

Order

Motion dated 13 December 2006 and filed 20 July 2007 dismissed.

Gwen Phillips
JUDGE

At Lautoka
03 March 2008