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Khan v Ali [2014] FJHC 738; HBC21.2013 (14 October 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 21 of 2013

BETWEEN:

MOHAMMED WAHID KHAN
APPELLANT/PLAINTIFF

AND:

MOHAMMED YASAD ALI
RESPONDENT/DEFENDANT

BEFORE : Hon. Justice Kamal Kumar

COUNSEL : Mr A Sen for the Appellant/Plaintiff

Mr A Ram and Mr K Ratule for the Respondent/Defendant

Date of Hearing : 8 July 2014
Date of Ruling : 14 October 2014

RULING
(Appeal – Application to Strike Out Claim)

1.0 Introduction

1.1 On 22 May 2014, Appellant (Plaintiff) filed Notice and Grounds of Appeal against the decision of Master delivered on 9 May 2014.

1.2 The Grounds of Appeal are stated as follows:-

“1. The Master erred in law in dismissing the plaintiff’s claim when it was properly filed within time entitling the plaintiff to prosecute the same.

2. The Master erred in law in taking into consideration irrelevant matters and failed to take into consideration relevant principles of law when arriving to his decision.”

1.3 The Notice of Appeal was called on 29 May 2014 before the Master and adjourned to 8 July 2014 for hearing. The parties were directed to prepare submissions prior to hearing.

1.4 On 8 July 2014, parties made Oral Submissions in addition to Submissions filed in Court and the Appeal was adjourned for Ruling on Notice.

2.0 Background Facts

2.1 On or about 7 October 2008, the Appellant was allegedly assaulted by the Respondent as a result of which Appellant allegedly received injuries.

2.2 The Respondent was charged for Assault Occasioning Actual Bodily Harm in relation to the said incident and was convicted of the said offence.

2.3 On or about 2 May 2012, Appellant issued Writ of Summons out of Magistrate Court claiming damages for alleged injuries which action was struck out due to non-appearance of Appellant or his Counsel.

2.4 On 20 June 2013, Appellant filed Writ of Summons in this action claiming damages for alleged injuries suffered by him as a result of incident mentioned at paragraph 2.1 of this Ruling.

2.5 On 30 June 2013, Respondent by his Solicitors filed Acknowledgment of Service indicating his intention to contest the proceedings.

2.6 On 7 August 2013, Respondent filed Statement of Defence.

2.7 On 16 October 2013, Appellant filed Reply to Defence.

2.8 On 22 November 2013, Plaintiff filed Summons for Direction which was returnable on 17 January 2014.

2.9 On 17 January 2014, no Order was made on the Summons for Directions and this matter was adjourned for Respondent to file Application to determine preliminary issue as to whether Appellant’s claim is statute barred.

2.10 On 29 January 2014, Respondent filed Notice of Motion supported by Respondent’s Affidavit sworn on 28 January 2014, seeking following Orders:-

“1. That the section 4 of the Limitations Act defence be decided first as a preliminary issue.

2. That the matter be struck out as being statute barred.

3. That the Defendant be awarded costs on an indemnity basis.”

2.11 On 3 February 2014, Appellant filed Affidavit in Opposition sworn on 31 January 2014.

2.12 On 14 February 2014, Respondent filed his Affidavit in Reply sworn on 13 February 2014.

2.13 Both parties filed Submissions on the preliminary issue in respect to the prayers sought in the Notice of Motion and this matter was adjourned for Ruling on Notice.

2.14 On 9 May 2014, the Learned Master delivered his Ruling whereby he struck out the action for being statute barred with no Order as to costs.

2.15 The Appellant appeals against this decision.

3.0 Preliminary Issue

3.1 At the close of Submissions I enquired with the Counsel as to whether leave to Appeal Masters Orders was granted by Master or a Judge.

3.2 It was then revealed that no leave was granted and hearing date for the substantive Appeal was fixed for 8 July 2014, before a Judge.

3.3 Counsel for the Respondent then raised the issue of leave and Counsel for the Appellant moved that the leave to Appeal be determined together with the substantive appeal.

3.4 Before I deal with issue of leave I would address Respondent’s submission in respect to fling of this action by Appellant when Appellant’s action arising out of same facts was struck out by Magistrates Court due to non-appearance of the Appellant or his Counsel (Paragraph 4 Page 2 of Respondent’s submission).

3.5 It should be noted that when an action is struck for non-appearance of the Plaintiff, the Plaintiff can either file an Application to re-instate the action or file fresh action.

3.6 Since Appellant’s action in Magistrates Court was struck out due to non-appearance there was nothing stopping him from filing this proceedings.

3.7 Since the action has not been determined by the Magistrate on its merits there was no judgment to appeal against.

3.8 The time for appealing will depend on whether the decision by Learned Master is interlocutory or final.

3.9 The Full Court of Fiji Court of Appeal in Woodstock Homes (Fiji) Ltd v. Rajesh [2008] FJCA 104 in dealing with appeal from decision to dismiss application to set aside default judgment considered the issue as to when a judgment is interlocutory.

3.10 The Full Court made following comments:

"56. All judgments are either final or interlocutory though it is sometimes difficult to define the borderline with precision. When there is a matter of doubt leave should be sought. Generally the distinction is that a final judgment finally disposes of the proceedings or finally determines the rights of the parties.

57. In England the test whether an order is interlocutory or final depends on the nature of the application (White v Brunton (1984) QB 570).

58. In Suresh Chanran v Shan (1995) 41 FLR 65 the Fiji Court of Appeal held that for the orderly development of the law in Fiji it was generally helpful to follow the decisions of the English courts unless there were strong reasons or not doing so and accordingly adopted the "application approach".

59. However in Jetpatcher Works (Fiji) Ltd v The Permanent Secretary for Works & Energy & Ors [2004] Vol 1 Fiji CA 213, a differently constituted Court of Appeal declined to follow Suresh Charan, (supra) holding that the "order approach" should be followed.

60. Different results will follow. If the Suresh Charan v Shah (supra) and the "application approach" is followed then an order refusing leave to apply for judicial review is an interlocutory matter. If Jetpacker Works (Fiji) (supra) and the "order approach" is followed then whether such an order is interlocutory would depend on analysing the circumstances of the case."

3.11 Although the Full Court did not make a final determination as to which approach is to be applied by Fiji Courts it stated as follows:-

"61. Although, as stated above, these are not suitable proceedings to resolve the difference of approach, the prudent course for practitioners is to assume that where proceedings are commenced in the High Court in the Court's original jurisdiction and the matter proceeds to hearing and judgment and the judge proceeds to make final orders or declarations, the judgment and orders are not interlocutory.

62. Every other application to the High Court should be considered interlocutory and a litigant dissatisfied with the ruling or order or declaration of the Court needs leave to appeal that ruling, order or declaration."

3.12 The Full Court of Fiji Court of Appeal revisited this issue in Goundar v. Minister for Health [2008] FJCA 40; ABU0075.2006S (9 July 2008).

3.13 In Goundar's case Full court stated as follows:-

"35. It seems to this Court that the "application approach" is the correct approach for the reasons stated in Suresh Charan v Shah and for the additional reason for legal certainty.

36. As a matter of fundamental principle a court ought not overrule itself unless there are compelling grounds for doing so but this is what the Court in Jetpacker (supra) did. In overruling Jetpacker supra) the Court is restating the law as it was, but more importantly it is doing so to return legal certainty to the law of Fiji. This is especially important in 2008 where it has been some years since the Fiji Law Reports were published where decisions of this Court cannot always be readily accessed by practitioners. Practitioners and litigants need to know with certainty whether a decision is interlocutory and therefore whether an appeal from that decision needs leave.

37. This is the position. Where proceedings are commenced in the High Court in the Court's original jurisdiction and the matter proceeds to hearing and judgment and the judge proceeds to make final orders or declarations, the judgment and orders are not interlocutory."

38. For legal certainty and applying the principle of "stare decisis" the approach to be adopted here is the application approach.

3.14 Order 59 Rules 9, 10 and 11 of the High Court Rules provides:-

"9. An appeal from an order or judgment of the Master shall be filed and served within the following period-

(a) 21 days from the date of the delivery of an order or judgment;

or

(b) in the case of an interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.

10.-(1) An application to enlarge the time period for filing and serving a notice of appeal or cross-appeal may be made to the Master before the expiration of that period and to a single judge after the expiration of that period.

(2) An application under paragraph (1) shall be made by way of an inter-parte summons supported by an affidavit.

11. Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment."

3.15 In this instance Learned Master delivered his decision on 9 May 2014 and as such Appellant had to file Application for Leave to Appeal by 23 May 2014.

3.16 Instead of seeking Leave, Appellant filed Notice and Grounds of Appeal on 22 May 2014.

3.17 Since Leave to Appeal is a pre-condition for filing of Notice and Grounds of Appeal and no such leave has been granted this Court cannot deal with substantive appeal.

3.18 I have no alternative but to strike out Notice and Grounds of Appeal for want of leave.

3.19 The Appellant subject to advice from his legal advisors is at liberty to file Application for enlargement of time to seek leave and file Notice of Appeal and Grounds of Appeal.

3.20 Since the preliminary issue was raised by the Court at the close of parties submissions and not by Respondent when hearing date for the Appeal was assigned or the commencement of the hearing and Respondent or his Counsel was of the mistaken belief that no leave is required, I do not think that it is just to make an order for costs.

4.0 Conclusion

Accordingly, I make following Orders:-

(i) Notice of Appeal and Grounds of Appeal dated 19 May 2014 and filed on 22 May 2014 is struck out for want of leave.

(ii) Subject to advice from his legal advisor, Appellant is at liberty to file Application for extension of time to seek leave and file Notice of Appeal and Grounds of Appeal.

(iii) Each party bear their own costs.

...........................

K. Kumar

JUDGE

At Labasa

14 October 2014

Maqbool & Company for the Appellant/Plaintiff

Gibson & Company for the Respondent/Defendant