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Bisai v Native Land Trust Board [2012] FJHC 1338; HBA40.2011 (21 September 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBA 40 OF 2011

BETWEEN:

BONE BISAI,
a Villager of Yavusa Vuniwai, Labasa.
PLAINTIFF

AND:

NATIVE LAND TRUST BOARD,
a body corporate constituted under the Native Land Trust Act, Cap 134.
1ST DEFENDANT/RESPONDENT

AND:

MACUATA PROVINCIAL COUNCIL,
a corporate body established under the Fijian Affairs Act, Cap 120.
2ND DEFENDANT/RESPONDENT

BEFORE : JUSTICE C. KOTIGALAGE

COUNSELS : MR S FA for the Plaintiff/Appellant
MS KOMAITAI for the 1st Defendant/Respondent

Date of Hearing : 28th August, 2012
Date of Order : 21st September, 2012

ORDER

1. Notice of Appeal filed on 14th December, 2011 against the Decision of the Master, Mr Amaratunga on the 18th November, 2011 to be set aside and case to be reinstated to the cause list.
   
2. Affidavit of service filed on 10th June 2012 stating a true copy of the Notice of Appeal was served on 15th December 2011 on the 1st Defendant/Respondent.
   
3. Summons seeking Leave to Appeal against the Decision of the Master was filed on 11th April, 2012.
   
4. As stated in the summons "seeking leave to appeal on interlocutory order of the Master".
   
5. When the case was taken up before me for hearing on 25th day of July 2012, Counsel for the Appellant made an application to amend the word "Interlocutory Order of the Master" to read as "Final Order of the Master".
   
6. The counsel who appeared for the Respondent objected for the application and this matter was taken up as a preliminary issue and I made Order on 25th July 2012 and allowed the application for amendment and the hearing was fixed for 23rd of August 2012.
   
7. The Notice of appeal was filed on 14th December 2011 and sought following orders:
   

"For an Order that the Decision of the Master, Mr Amaratunga on the 18th of November 2011 be set aside;

For an Order that this case be Reinstated to the cause list;

For an Order that the Costs of this Appeal be paid the Defendants/Respondents; and

For such other Orders as the High Court of Fiji deems just".

8. The summons was filed on 11th April 2012 and sought the following orders:
   

For an Order that the time within which a Notice of Appeal is to be filed be extended to allow the Plaintiff/Appellant to lodge an appeal against the Decision of the Master, Mr Amaratunga delivered on the 18th of November, 2011;

For an Order that the Decision of the Master, Mr Amaratunga delivered on the 18th of November, 2011 be set aside;

For an Order that this case be Reinstated to the cause list;

For an Order that the Costs of this Appeal be paid by the Defendants/Respondents; and

For such other Orders as the High Court of Fiji deems just.

9. The said application was made pursuant to Order 59 Rule 10(1) (2) Order 59 Rule 8(1); Order 59 (12); Order 2 Rule 1(1) and Order 3 Rule 4(1), pursuant to the inherent jurisdiction of this court. The summons was filed together with the affidavit in support dated 28th March 2012.
   

Issues to be decided

10. This court has to decide on the following issues:
    
    • (a) As to whether the delay in filing summons seeking time within which a Notice of Appeal to be filed be extended to allow the Plaintiff Appellant to lodge an appeal against the decision of the Master, Mr Amaratunga is justified?
      
    • (b) If the said issue (a) is answered in affirmative, the time period for Lodgement of the Appeal shall be extended;
      
    • (c) If the said issue (a) is answered in negative Master, Mr Amaratunga's decision shall stand and the Plaintiff Appellant's application fails.
      
11. Plaintiff Appellant in pursuant to Order 59 Rule 17(2) of the High Court Rules had to file and serve a summons returnable date before a Judge within 21 days of the filing of the Notice of Appeal.
    
12. The Notice of Appeal was filed on 14th December, 2011 and served on the 1st Defendant, on 15th December 2011. Affidavit of service filed on 10th January 2012.
    
13. However, the summons seeking Leave to Appeal against the Decision of the Learned Master was filed on 11th April, 2011.
    
14. The Plaintiff Appellant states in the affidavit of Mr Semi Nakau why the Court should consider extension of time allowing the Plaintiff Appellant to lodge the appeal (paragraphs 16 to 20 of the affidavit):
    

"16. I am informed and verily believe that the requisite period for filing the Summons, taking into account the judicial holiday which started on the 12th of December 2011 and ended on the 16th of January 2012, expired on the 5th of February, 2012.

17. I am informed by Counsel for the Plaintiff/Appellant that owning to an oversight, the Summons was not filed.

18. On the 12th of March 2012, a period of 5 weeks after the period for filing the Summons had expired, Counsel for the Plaintiff/Appellant then tried to file the Summons but the same was not accepted by the High Court Registry. I annex herewith and mark as Annexure "SN10" a true copy of the Plaintiff/Appellant's Summons that their Counsel had tried to file at the High Court Registry. I also annex herewith and mark as Annexure "SN11" a true copy of the Plaintiff/Appellant's Counsel's letter to the High Court Registry dated the 14th of March 2012.

19. On the 16th of March, 2012, the High Court Registry sent a letter to the Plaintiff/Appellant's Counsel informing the same that the appeal had been deemed abandoned, I annex herewith and mark as Annexure "SN112" a true copy of the High Court Registry's letter dated the 16th of March 2012.

20. I am informed that the delay of 5 weeks delay is not inordinate and that the Plaintiff/Appellant should not be prejudiced from having their case brought before this Honourable Court".

15. The 1st Defendant/Respondent filed affidavit sworn by Mr Semi Senikuraciri in opposition on 30th May 2012 and replied the averments in the said paragraph 16 to 20 of the affidavit and stated:
    

"28. THAT I can neither confirm nor deny the contents of paragraph 16 of the said affidavit.

29. THAT I can neither confirm nor deny the contents of paragraph 16 of the said affidavit and put the Plaintiff to the strictest proof of the contents of paragraph 16 of the said affidavit.

30. THAT I can neither confirm nor deny the contents of paragraph 17 of the said affidavit and put the Plaintiff to the strictest proof of the contents of paragraph 17 of the said affidavit.

31. THAT I can neither confirm nor deny the contents of paragraph 18 of the said affidavit and put the Plaintiff to the strictest proof of the contents of paragraph 18 of the said affidavit.

32. I concur with the contents of paragraph 19 of the said affidavit".

16. The Plaintiff Appellant filed his Affidavit in Reply on 3rd July 2012.
    

Analysis of Submissions and Findings

17. The court has to firstly decide on the issue of delay and as to whether Plaintiff Appellant should be granted extension of time to lodge the Appeal.
    
18. Plaintiff Appellant in his written submissions stated:
    
    • (a) Notice of Appeal was filed on 14/12/2011 by the Plaintiff Appellant against the decision of the Master Mr Amaratunga dated 18th November 2011 and served on the First Defendant Respondent on 15th December 2011;
      
    • (b) Under Order 59 Rule 17(2) of the High Court Rules, the Plaintiff Appellant was to have filed and served a summons returnable before a Judge within 21 days of the filing of the Notice of Appeal;
      
    • (c) Plaintiff Appellant submitted to take into account the Judicial holiday which commenced on 12th December 2011 and ended on the 16th of January 2012 and submitted on 16 of January 2012 to be considered as the date for filing of summons to lodge the appeal;
      
    • (d) The 1st Defendant Respondent in its skeletal submissions filed on 10th August 2012, stated the Court Registry was opened during the Judicial Holidays;
      
    • (e) I agree with the submissions made by the 1st Defendant Respondent and I state that as a Practitioner of this Court, Plaintiff Appellant was well aware that during the Judicial Holidays, High Court Registry is opened and there would not have been any issue of filing the Appeal before 4th of January 2012 in terms of the High Court Rules interalia:
      
      • (i) It is observed even the Notice of Appeal was filed by the Plaintiff Appellant on 14th December 2011 after the Judicial Holidays commenced. This contradicts the position of the Plaintiff's counsel;
        
      • (ii) It was stated in the affidavit in support sworn by Semi Nakau, paragraph 14:
        

"14. I am also informed by the Plaintiff/Appellant that the Notice of Appeal was served at the Office of the Counsel's First Defendant Respondent on the 15th of December 2011. I annex herewith and mark as Annexure "SN9" a true copy of the Plaintiff/Appellant's Affidavit of Service confirming the same";

(iii) It is observed by this Court on page 3 of SN9 the Rubber Stamp of the High Court of Fiji clearly indicates the Affidavit of Service was filed on 10th January 2012. I concede the Plaintiff Appellant deliberately suppressed and striking the date of filing the affidavit of service in paragraph 14 to convince the court that the counsel was unaware that documents could be filed during Judicial Holidays. I further concede this amounts to misleading of the court on the issue of delay;

(iv) On this issue law is very clear as set out in Order 2 Rule 2 of the High Court Rules:

"Order 2 Rule 2 – Where an act is required to be done within a specified period after or from a specified date, the period begins immediately after that date".

(f) In above circumstances, the submissions made by the counsel for the Plaintiff Appellants (ie. Not to take into account the Judicial Holidays when arriving at 21 days from Notice of Appeal, the summons before a Judge) is unacceptable. In fact, it is further conceded that the submissions made by the counsel without disclosing the fact that the Affidavit of Service was filed on 10th January 2012 (during Judicial holidays) was to mislead the Court and such non disclosure amounts to abuse of the process of the Court and does not warrant Plaintiff to obtain reliefs on the issue of delay;

(g) I observe that the Plaintiff Appellant indicated that 12th of March 2012 was "5 weeks after the period of filing the summons had expired". As I conceded earlier, I am not taking into account the period of Judicial Holidays to be waived. Then it's not five weeks from 14th December 2011, it is 87 days or after 12 weeks and 3 days. The Plaintiff Appellant's counsel making his claim of 5 weeks merely based on his assumption that the court had concluded not to take into account the Judicial Holidays which was not so.

(h) Plaintiff Appellant further submitted that owing to an oversight the summons were not filed. As I myself concluded in Giesberecht vs Croos [2012] FJHC 1219 "merely stating that it was an oversight won't justify the delay". Such situation should be substantiated. I also wish to quote His Lordship Chief Justice Gate's Ruling in the case of Eddie McCaig vs Abhi Manu Civil Appeal No. DBV002.12 (on Appeal from the Court of Appeal No. ABU 0050 of 2005) decided on 27th July 2012:

"............if that were the case there would be no point in having any rules to regulate the Supreme Court Procedure. The obtaining of the Grant of Enlargement is not a mere administrative step" (emphasis mine)

(i) In the said Ruling, His Lordship Chief Justice further states (in para 9):

"(9) But it must be remembered that whilst in a compelling case, the Court may more easily be convinced of a need for intervention in a Criminal case with less regard for the prejudice caused to the state as Respondent; the position is different in a civil case. In such cases, when exercising Civil Jurisdiction, the Appellate Courts have tendered to be less lenient; than when considering the position of an Accused person who lodges a late appeal. In civil appeals, the court has to be more even-handed and consider equally the rights and interest of the Respondent with those of the Applicant. (Latchmi & Anor vs Moti & Others [1964] 10 Fiji LR 138 at 145 as per Marshall J.A.". (emphasis mine)

(j) For the above reasons, I concede that Plaintiff Appellant's contention of "oversight" fails. The Plaintiff Appellant as a practitioner in this Court was well aware of the rules and should have realised such rules are there for implementation by the court for good reasons to administer the justice. The responsibility of justifying cast entirely on the party who claims such relief;

(k) It was also pleaded by the Plaintiff Appellant as stated in paragraph 14 of this Order (with reference to the para 18 of the Affidavit of Mr Semi Nakau that on 12th of March 2012) that the Plaintiff Appellant tried to file summons but not accepted by the High Court Registry and the Plaintiff Appellant's Solicitor's by letter dated 14th March 2012 (Annexure 11) requested the Registry to accept the documents. Plaintiff Appellant was informed by letter dated 16th March 2012 (Annexure 12) of the High Court Registry that the Plaintiff Appellant's appeal had been deemed abandoned;

19. The letter of 16th March 2012 states, it was pursuant to Order 59 Rule 17(2) and 17 states procedure for filing appeal:
    

"17 – (1) Appellant shall upon serving the Notice of Appeal on the party or parties to the appeal, file affidavit of service within 7 days of such service.

(2) The Appellant shall within 21 days of the filing of Notice of Appeal file and serve a summons returnable before a judge for directions and a date for the hearing of the Appeal.

(3) If this rule is not complied with, the appeal deemed to have been abandoned."

20. As I have already observed and concluded, Plaintiff Appellant had failed to file the affidavit of service within 7 days upon serving the notice of appeal on the 1st Defendant Respondent. Plaintiff Appellant not only failed to act in terms of Order 59 Rule 17(1), deliberately suppressed this issue until the Court made its own finding.
    
21. As stated by Hon. Justice Calanchini, in the case of A. Mitchell Gay and Allan C. Beall v. Resolution Trust Corporation and Others (2010), HBA 1/09s (apf HBC 458/93) stated that:
    

".......................Rule 17(3) rule that failure to follow Rule 17(1) and 17(2) leads to an automatic abandonment of an appeal is intended to operate as a deterrence. Appeal 11 days out of time; without application to enlarge time, or timely filing of summons for directions; and absent application for non-compliance with rules is deemed abandoned".

22. In the present case, it is evident that the Plaintiff Appellant had delayed in filing Affidavit of Service by 19 days which was to be filed on 22nd December 2012 and no material is available for consideration for the delay and the said delay is not addressed in the Affidavit of Support at all.
    
23. With regard to delay in pursuant to Order 59(2), I did addressed the issue previously in this Order and conceded that Plaintiff failed to substantiate the delay of 87 days.
    
24. In the circumstances, I hold with the decision of High Court Registry that the Plaintiff Appellant had abandoned the appeal and submissions by the counsel for the Plaintiff Appellant fails.
    
25. The oral submissions, written submissions and the case authorities submitted by the counsel for the Plaintiff Appellant mainly addressed to establish that Learned Master Mr Amaratunga's decision to be set aside which matter need not to be addressed in this case, as I have stated in para 10 of this Order.
    
26. Accordingly, as set out in the above paragraphs, the Plaintiff Appellant had failed to establish the reasons to justify the delay and decision to consider appeal being abandoned is justified.
    

Conclusion

27. I now make the following Orders:
    
    • (a) The Plaintiff Appellant had failed to justify the delay in filing summons seeking time within which a Notice of Appeal to be filed be extended to allow the Plaintiff Appellant to lodge an appeal against the decision of the Master and accordingly, the application is dismissed;
      
    • (b) I further declare and order that according to the findings, Plaintiff Appellant failed to file affidavit of service within 7 days from the date of service [Order 59 Rule 17(1)] and failed to lodge the appeal within 21 days from the date of filing the Notice of Appeal [Order 59 Rule 17(2)] of appeal and as such, Plaintiff Appellant did not comply with Order 59 Rule 17(1) and (2) and the appeal deemed to have been abandoned.
      

Having made the above Orders, I declare Master Mr Amaratunga's decision shall stand and further Order summarily assessed costs of $2000.00 should be paid by the Plaintiff Appellant to the 1st Defendant Respondent.

Delivered this 21st Day of September, 2012.

....................................
C. KOTIGALAGE
JUDGE