IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action HBC No. 67 of 2014

BETWEEN:

WALI MOHAMMED of 120 Sukanaivalu Road, Lautoka, Painter with Lateef & Company, Ravouvou Street.
PLAINTIFF/APPLICANT

AND:

MOHAMMED SHAMSHER AZAAD KHAN of 82 Rossli Drive, Hinchinbrook 2168 NWS Australia through his Lawful Attorney, Mohammed Yas of 32 Capricorn Green Valley 2168 NSW, Australia, Property Owner.
DEFENDANT/RESPONDENT

Counsel: Mrs J Naidu for applicant
 Mr V Prasad for respondent
Date of Hearing: 28 July 2015 
Dare of Ruling: 02 October 2015

RULING

Introduction
[01] This is an inter partes summons seeking leave to appeal a decision of the learned Master dated 5th June 2015 ('the Application').

[02] On 19 June 2015 the plaintiff/applicant (hereinafter may be sometimes referred to as 'the applicant') filed the application seeking the following orders inter alia:

a)	AN ORDER that leave be granted to appeal the decision of the Master dated 5 June 2015.

b)	ALTERNATIVELY, AN ORDER that time to file an application for leave to appeal the Master's decision of 5th June 2015 be enlarged if such decision is interlocutory.

c)	AN ORDER thatthe execution of the Master's decision dated 5th June 2015 be stayed pending appeal.

[03] This application is made pursuant to Order 59 rule 8, 9 & 10 of the High Court Rules 1988, as amended ('the HCR) and upon inherent jurisdiction of the court. It should be noted that rule 11 of Order 59 is omitted. It appears that the applicant does not rely on rule 11.

Grounds of appeal
[04] The application is supported by an affidavit sworn by Wali Mohammed, the applicant. The supporting affidavit annexes proposed grounds of appeal. They are as follows:

1.	That the Master erred in law and in fact in striking out the plaintiff's writ of summons and statement of claim on grounds of no reasonable cause of action when the plaintiff's cause of action namely fraudulent misrepresentation, unjust enrichment and constructive trust raises triable issues and cause of action with some chance of success.

2.	That the Master erred in law and in fact in finding that the plaintiff's two cause of actions are flawed as they contravenes section 59 (d) of the Indemnity, Guarantee and Bailment Act (Cap 232) without considering that such section does not apply to equitable interest such as false misrepresentation, unjust enrichment, constructive trust and resulting trust as sought by the plaintiff as part of his relief claim.

3.	That the Master erred in law and in fact in not finding that the word 'interest' in section 59 (d) of the Indemnity, Guarantee and Bailment Act (Cap 232) is confined to disposition of legal interest in the land and not to claim of equitable interest as sought by the plaintiff such as false misrepresentation, unjust enrichment, constructive trust and resulting trust.

4.	That the Master erred in law and in fact in finding that the plaintiff's cause of action are flawed as contrary to in section 59 (d) of the Indemnity, Guarantee and Bailment Act (Cap 232) without considering that such section does not apply to and does not affect the equitable claim of the plaintiff.

5.	That the Master erred in law and in fact in striking out the plaintiff's claim without considering that plaintiff's in constructive does not fall within the ambit of section 59 (d) of the Indemnity, Guarantee and Bailment Act (Cap 232).

6.	That the appellant reserved the right to amend and add further grounds of appeals.
 
[05] The defendant/respondent (hereinafter may be sometimes referred to as 'the respondent') oppose the application on the legal ground. He did not file any affidavit, for he is relying on legal ground.

[06] At hearing, both parties orally argued the matter. Only the respondent tendered written submission. But the applicant did not. The applicant sought time to file his written submission. I accordingly granted 14 days to the applicant and 7 days thereafter to the respondent to file submission in reply. The matter was adjourned to 8 September 2015 for ruling. That day when the matter came on for ruling counsel for the applicant made an application seeking leave of the court to file their written submission in 7 days. Since there was no objection by the respondent I allowed that submission to be filed and gave 7 days to the respondent to file his submission in reply. I reserved my ruling for 2 October 2015. He applicant filed his written submission on 15 September and the respondent filed his reply submission on 22 September 2015.

Background
[07]In 2014 the plaintiff, Wali Mohammed (applicant in these proceedings) took out a writ against the defendant Mohammed Shamsher Azaad Khan (respondent in these proceedings) claiming declaration that the defendant hold the property on constructive trust for the plaintiff and for declaration that the defendant hold the deposit of $15,000.00 and $30,000.00 paid by the plaintiff for the defendant in HFC loan account and improvements thereof in proportionate to the value of the property in resulting trust to the plaintiff. The statement of claim alleged that on 22 March 1988 the defendant agreed to sell the property (Native Land) to the plaintiff for certain consideration. The defendant filed striking out application. The Master of the High Court on 5 June 2015 struck out the claim as it failed to disclose a reasonable cause of action against the defendant and ordered the plaintiff to pay costs of $1000.00. The plaintiff now seeks leave of the court to appeal the decision of the Master out of time.

The Law
[08]Order 59, rules 8,9,10& 11 of the HCR are relevant to this application.

Appeal from Master's decision (O.59, r.8)
'8.-(1) An appeal shall lie from a final order or judgment of the Master to a single judge of the High Court.'

Time for appealing (O.59, r.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 delivery of an order or judgment;

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

Extension of time (O.59, r.10)
'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 expiration of that period.

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

Application for leave to appeal (O.59, r.11)

11. Any application for leave to appeal an interlocutory order or judgment shall be madeby summons with the supporting affidavit, filed and served within 14 days of the delivery of the order or judgment.' (Emphasis added).

Determination
[09] The applicant (plaintiff) applies to Court for leave to appeal the decision of the Learned Master delivered on 5 June 2015 where he struck out the claim as it discloses noreasonable cause of action against the defendant (respondent). The learned Master made that striking out order pursuant to Order 18 rule 18 of the HCR.

Order made striking out a pleading interlocutory or final
[10] The leave application is made on the basis that the learned Master's order striking out the claim is a final order.

[11] Counsel for the respondent put forth argument that the learned Master's order made under O.18, r.18 is an interlocutory order. He cited the case authority of Goundar v Minister for Health[2008] FJCA 40; ABU0075.2006S (9 July 2008).

[12] In Goundar's case (supra) is relevant to the current application. In that case Fiji Court of Appeal under paras 37 & 38 said:

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.	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 to that ruling order or declaration. The following are examples of interlocutory applications:

1.	an application to stay proceedings;
2.	an application to strike out a pleading;
3.	an application for an extension of time in which to commence proceedings;
4.	an application for leave to appeal;
5.	the refusal of an application to set aside a default judgment;
6.	an application for leave to apply for judicial review.' (Emphasis added).

[13] Generally, an application to strike out pleading is made within the proceedings. Hence order that is to be made on that application is obviously an interlocutory order.

[14] Undoubtedly, the learned Master's order delivered on 5 June 2015 striking out the claim is an interlocutory order. As such, leave is necessary to appeal that order to a judge of the High Court as per HCR O.59, r.11.

[15] According to O.59, r.11, an application for leave to appeal the interlocutory order of the Master must be filed and served within 14 days of the delivery of the order.

[16] The applicant filed on 19 June 2015, being the last day for filing and serving, his application for leave to appeal by way of an Inter Partes Summons supported with the affidavit. The same was served on the city agents of the respondent's solicitors on 14 July 2015, 25 days after the 14 days allowed for filing and serving.Although the applicant filed the application within the prescribed time, he failed to serve it on the respondent within the time.

[17] In this regard, counsel for respondent submitted that the application for leave to appeal must be dismissed as the same was not served within 14 days as required by rule 11. He referred to a case authority of One Hundred Sands Ltd v TeArawa Ltd [2015] FJHC 487; HBC112.2014 (30 June 2015).

[18] In One Hundred Sands Ltd' case (supra) a similar situation arose where Alfred, J in dismissing the Defendant's application for leave to appeal which was filed on the 14th day however not served within the 14 days as required by the rule held:

 "…
16. The nub of the matter is whether it is fatal to the Defendant that its Summons was not served within the 14 days specified in Order 59 rule 11of the Rules.

17. Here I will refer to the decision of the Privy Council in: Ratnam vs. Cumarasamy and Another [1964] 3 All E.R. at page 935;

Lord Guest in giving the opinion of the Board to the Head of Malaysia said, inter alia:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material which the court can exercise its discretion. The law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation. The only material before the Court of Appeal was the affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to lodged, and that his reason for this delay was that he hoped for a compromise. Their lordships are satisfied that the Court of Appeal were entitled to take the view that this did not constitute material on which they could exercise their discretion in favour of the appellant. In these circumstances, their lordships find it impossible to say that the discretion of the Court of Appeal was exercised on any wrong principle."

[19] Mr Prasad, counsel for the respondent also submits that under Order 59 rule 10, the Court can only enlarge time for filing and serving of notice of appeal or cross-appeal and not any application for leave to appeal. He cited Panache Investment Ltd v NewIndia Assurance [2015] FJHC 523; HBC56.2014 (17 July 2015) where it was held that the instant application cannot be considered as a valid application since it is filed without giving due regard to the law stipulated under Order 59 Rule 11 of the HCR.

[20] The applicant has failed to comply with the mandatory requirement of Order 59, rule 11 of the HCR in that he failed to serve within 14 days his application for leave to appeal the interlocutory order of the learned Master delivered on 5 June 2015. Inherent jurisdiction of the court cannot be used to cure the mistake made by a party in complying with the mandatory rules of procedure. Order 2 of the HCR cannot also help to cure the application filed against the mandatory rule. I would therefore dismiss and struck out the application with costs which I summarily assess at $850.00.

Leave to appeal out of time
[21] The applicant in his application alternatively seeks an order that time to file an application for leave to appeal the Master's decision of 5th June 2015 be enlarged if such decision is interlocutory.

[22] Order 59, rule 10 provides that 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 expiration of that period.

[23] It will be noted that rule 10 empowers the court to enlarge the time period for filing and serving a notice of appeal or cross-appeal and not the time period for filing and serving the application for leave to appeal an interlocutory order.

[24] Even if one assumed that the court is empowered to enlarge the time period for filing and serving an application for leave to appeal the Master's interlocutory order, the application would fail for the reasons to be stated shortly.

Principles governing extension of time

[25]The governing principles for the granting of leave to appeal out of time are as follows:

(i) Length of delay;

(ii) Reason for the delay;

(iii) Chance of appeal  succeeding if time for appeal  is extended; and

(iv) Degree of Prejudice to  the Respondent if application is granted.

(See, Herbert Construction Company (Fiji) Ltd v Fiji National Provident Fund [2010] FJCA 3; Miscellaneous Case 020.2009 (3 February 2010),Kumar v Commissioner ofPolice, Fiji Court of Appeal Civil Appeal NO.ABU 0059 OF 2004 (10 March, 2006), Nair v Prakash [2013] FJCA 147; Misc. Action 10.2011 (30 October 2013) &Tora v Housing Authority [2002] FJCA 16; ABU0036.2002S (15 November 2002)).

Length of delay and reasons for delay

[26] The applicant was 25 days delay in serving the application for leave to appeal whereas he should have filed and served within 14 days after delivery of the interlocutory order on 5 June 2015.

[27] Twenty five (25) days delay in serving the application for leave to appeal an interlocutory order is quite too long. Applicant's affidavit in support fails to explain the long delay. To rectify this, the applicant by notice of motion filed 12 August 2015 and sought an order that leave be granted to file supplementary affidavit of Wali Mohammed (applicant) to show the reasons of delay. On 19 August 2015 I disallowed that application on the basis that it is improper to allow the applicant to file a supplementary affidavit to show the delay after the matter has been argued and set down for ruling. 

[28] The applicant was not successful in his attempt to file a supplementary affidavit to show reasons for the delay. This left with the applicant to rely on his original supporting affidavit which offers no explanation for the delay.

Grounds of appeal

[29] The proposed grounds of appeals largely based on section 59 (d) of the Indemnity, Guarantee and Bailment Act which so far as material provides that:

S.59- No action shall be brought-

(a) …

(b) …

(c) …

(d) upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them; or

(e) …

Unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged there or some other person thereunto by him lawfully authorized.

[30] The applicant's claim stems from an oral agreement allegedly entered with the respondent in 1988 for the sale of a native property. It appears to me the applicant alleges fraud and/or misrepresentation on the part of the respondent because to overcome the limitation period.

[31] As the land involved in the agreement to sell is the Native land section 12 of the Native Land Act ('the NLA') would apply to the dealing. Section 12 declares that any dealing with the native land or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the Board's (Native (iTaukei now) Land Trust Board) prior consent to be null and void.

[32] In the statement of claim the plaintiff does not state that the dealing was consented by the Board. Hence there is illegality in the alleged sale agreement the plaintiff relies on. 

[33] The applicant proposes to argue, if leave is granted, that section 59 (d) of the Indemnity, Guarantee and Bailment Act does not apply to and does not affect the equitable claim of the plaintiff. I am of opinion that the applicant cannot succeed in that argument, for the agreement allegedly entered orally between the parties is contaminated with illegality. So, the applicant cannot claim even an equitable relief (See Chalmers v Pardoe [1963] 3 All ER 552 and Singh v Sumintra [1970] 16 FLR 165 (13 November 1970).

Conclusion

[34] For all these reasons, I would dismiss and strike out the application for leave to appeal the interlocutory order of the learned Master dated 5 June 2015 and accordingly refuse leave to appeal. I would order the applicant to pay the respondent in the sum of $850.00 as costs which I summarily assess. The cost is to be paid within 21 days.

Final orders

I.	Application for leave to appeal is dismissed and struck out.

II.	Leave to appeal out of time is refused.

III.	The applicant will pay summarily assessed costs of $850.00 to the respondent within 21 days of the date of this ruling.

M H Mohamed Ajmeer
JUDGE

At Lautoka
2 October 2015