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Narayan v Wati [2013] FJHC 406; HPP08.2006 (31 July 2013)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

HPP Action No. 08 of 2006

BETWEEN :

DINESHWAR NARAYAN,
(f/n Deo Narayan) of Lot 21 Kishore Bhindi Drive, Laucala Beach, Self Employed.
PLAINTIFF

AND:

PUSHPA WATI,
(f/n Durga Prasad) of Nepani, Nasinu, Retired Bank Officer as Sole Executrix and Trustee in the ESTATE OF SAVITA DEVI (f/n Adit Singh) of 322 Princess Road, Tamavua, Suva, Domestic Duties, Testate.
1ST DEFENDANT

THE REGISTRAR OF TITLES
having its registered office at Suvavou House, Suva in the Republic of Fiji Islands.
2ND DEFENDANT

BEFORE : Hon. Justice Kamal Kumar

COUNSEL : Mr R. Prakash for Plaintiff
Mr R. Singh for 1st Defendant
Mr R. Green and Ms K. Naliva for 2nd Defendant

DATE OF HEARING : 15 October 2012
DATE OF RULING : 31 July 2013

RULING

1.0 INTRODUCTION

1.1 On 12 October 2011 the Plaintiff filed Notice of Motion seeking an Order that "the time to file Grounds of Appeal to the Fiji Court of Appeal against the Interlocutory Decision by His Lordship Justice Hettiarachchi on 12 November 2010 be extended" on the grounds stated in the Affidavit of Ritesh Singh sworn on 11 October 2011.

1.2 No other Affidavits being filed the Application was listed for hearing on 15 October 2012.

2.0 APPLICATION FOR LEAVE TO APPEAL OUT OF TIME

2.1 Notice of Motion states date the Application for extension of time is made pursuant to Section 12(2)(a) of the Court of Appeal Act.

2.2 12 (2)(a) of Court of Appeal Act provide:-

"No appeal shall lie from an Order allowing an extension of time for appealing from a decision."

2.3 It is obvious that the Section 12(2)(a) does not deal with the Application for Leave to Appeal out of Time.

2.4 Rule 16 of Court of Appeal Rules provides:-

"16. Subject to the provisions of this rule, every notice of appeal shall be filed and served under paragraph (4) of rule 15 within the following period (calculated from the date on which the judgment or order of the Court below was signed, entered or otherwise perfected), that it to say-

(a) in the case of an appeal from an interlocutory order, 21 days;

(b) in any other case, 6 weeks."

2.5 The decision in respect to Interlocutory Order was made by his Lordship Justice Hettiarachchi (as then he was) on 12 November 2010.

2.6 On 11 May 2011 leave was granted by his Lordship to appeal the above decision to Fiji Court of Appeal.

2.7 Applicant not having filed the Notice of Appeal filed the present Application on 12 October 2011.

2.8 On 15 October 2012 when the Application for Leave to Appeal Out of Time was heard, Mr R. Singh, Counsel for the 1st Defendant informed the Court that his firm has been instructed by 1st Defendant to withdraw acting for her whereupon the Counsel for the Applicant/Plaintiff and 2nd Respondent/2nd Defendant made oral submission and submitted written submissions.

2.9 Ruling not having delivered by his Lordship Justice Hettiarachchi (as then he was) I caused this matter to be called on 12 July 2013 when the Counsel appearing for the Plaintiff and 1st Defendant confirmed that it is in order for me to deliver the Ruling on basis of file notes and Affidavit and Submissions filed.

2.10 It is surprising that the Counsel for all the parties from the time the Application was called until the date of hearing completely disregarded the Rule 27 of Court of Appeal Rules the very provision dealing with the Extension of Time to Appeal.

2.11 Rule 27 of Court of Appeal Rules provides as follows:-

"27. Without prejudice to the power of the Court of Appeal, under the Supreme Court Rules as applied to the Court of Appeal, to enlarge the time prescribed by any provision of these Rules, the period for filing and serving notice of appeal under rule 16 may be extended by the Court below upon application made before the expiration of that period."

2.12 Hence pursuant to this Rule this Court has no jurisdiction to extend the time if the time for appeal has expired.

2.13 It is not disputed that the time for filing Notice of Appeal had expired almost twenty months ago when the Application was filed in this matter.

2.14 It is apparent from the decision in Native Land Trust Board & Anor. v Subramani Civil Appeal No. ABU0001 of 2004S (18 March 2004) referred in Applicant's Submission where Application for Leave to Appeal was made to Fiji Court of Appeal when time for appeal had already expired.

2.15 For the reason stated above, I make following Orders:-

(i) Notice of Motion filed on 12 October 2011 is dismissed and struck out;

(ii) Each party is to bear their own costs of the Application.

KAMAL KUMAR
JUDGE

At Suva
31 July, 2013