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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 184 of 2014
BETWEEN:
DEO CONSTRUCTION DEVELOPMENT COMPANY LIMITED a duly incorporated company having its registered office at 11 Kennedy Street, Martintar, Nadi
PLAINTIFF/RESPONDENT
AND :
DENARAU CORPORATION LIMITED a company duly incorporated under the laws of Fiji and having its registered office at Level 10, FNPF Place, 343 Victoria Parade,
Suva in the Republic of Fiji
DEFENDANT/APPLICANT
Counsel : Ms B Narayan for applicant
: Mr A K Narayan for respondent
Date of Hearing : 02 September 2015
Date of Decision : 26 January 2016
DECISION
Introduction
[01] This is a summons by the applicant filed 17 March 2015 for Leave to Appeal the judgment of this court (my judgment) delivered on 24 February 2015 ('the application). In that judgment the court ordered:
[a] Enter judgment in favour of the plaintiff.
[b] Grant orders in terms of prayers 1, 2, 3 & 5 of the originating summons filed by the plaintiff on 11 November 2014.
[c] The plaintiff is entitled to costs to be assessed on the solicitor/client indemnity basis.
[02] The application is supported with an affidavit sworn by Rupeni Fonmanu on 17 March 2015.
[03] The application does not specify the Rules or Orders of the High Court Rules ('HCR') which it is made under.
[03] The respondent opted not to file any opposing affidavit.
[04] At hearing both parties agreed to file written submissions. Accordingly the court granted 14 days to the applicant to file and serve its written submissions and 14 days for the respondent to file their response and to applicant to file a reply in 7 days thereafter. The parties have complied with that direction. Both counsel filed helpful written submissions and cited a number of authorities. I am grateful to them for their assistance.
Background
[05] Deo Construction Development Company Limited (the respondent in these proceeding) initiated proceedings by way of originating summons against Denarau Corporation Limited (the applicant in these proceedings) seeking the following orders and declarations:
1. A declaration that the Defendant's refusal to grant development permission or consent and the withholding thereof to construct a residence on Certificate of Title 35924 being Lot 6 on Deposited Plan 9135 situate on Denarau Island on the grounds that a shareholder of the Plaintiff, Deo Family Trust, owes levies for its own properties to the Defendant is unreasonable, unjustified, without any legal basis and wrong in law.
2. An order that the Defendant forthwith issue the development consent to the Plaintiff submitted on 8th April 2014.
3. The Defendant do pay damages to the Plaintiff to be assessed.
4. Such other declarations and orders as this Honourable Court may deem just and expedient including injunctive reliefs to restrain the Defendant from interfering with the Plaintiff's use and enjoyment of its property covered by Certificate of Title Number 35924.
5. The Defendant pay the costs of this application and proceedings on a Solicitor/Client full indemnity basis.
[06] The court after hearing evidence adduced through affidavits determined liability and gave judgment against the applicant as sought in prayer 1, 2, 3 &5 of the originating summons and ordered assessment of damages to take place at a later stage.
[07] The applicant now seeks leave to appeal that judgment.
Determination
[08] The applicant seeks leave to appeal the judgment delivered on 24 February 2015. In that judgment the court determined the liability and gave judgment against the applicant in an action initiated by way of originating summons by the respondent.
[09] The application fails to indicate which rule it is made under. However, it is seen that leave is sought on the basis that the judgment is an interlocutory judgment.
[10] At the outset, what the court must determine is whether the judgment delivered on 24 February 2015 is a final judgment or an interlocutory judgment.
[11] It is well-settled that a final judgment may be appealed as of right and that an appeal from an interlocutory decision requires leave of the court.
[12] The impugned judgment was not a judgment delivered in a summary proceeding. Usually, an application for order for summary judgment under O. 14, HCR is filed in a substantive cause after defendant filing acknowledgement of writ of summons. A summary judgment may be appealed on the basis that it is an interlocutory judgment.
[13] The application fails to state which rules it is made under. However, it is seen that the application is filed pursuant to O.59, r. 11 of HCR, as amended which provides:
11. Any application for leave to appeal an interlocutory order or judgment shall be made by summons with the supporting affidavit, filed and served within 14 days of the delivery of the orderor judgment.' (Emphasis added).
[14] If the application for leave is made on the basis that the judgment is an interlocutory judgment, the application ought to have been filed and served within 14 days of the delivery of the judgment as required by rule 11. The court delivered the judgment on 24 February 2015. The application for leave is filed on 17 March 2015. The applicant has filed the application some 22 days, which is outside the stipulated period for such application, after the delivery of the judgment.
Judgment is interlocutory or final
[15] Two different approaches had been taken by the courts to decide whether a judgment or an order is final interlocutory or final. The fist is called 'application approach' while the second is called 'order approach'.
[16] In Fiji, application approach is the proper approach to be taken to decide whether any particular order or ruling is interlocutory or final, see Suresh Charan v Shah (1995) 41 FLR 65, 67. Fiji Court of Appeal adopted White v Brunton (1984) QB 570; [1984] 2 All E R 606.
[17] The 'application approach' looks at the application rather than the order actually made. An order is treated as final only if the entire cause or matter would be finally determined whichever way the court decided the application
[18] Again, the Fiji Court of Appeal in the case of Goundar v Minister for Health [2008] FJCA 40; ABU0075.2006S (9 July 2008) settled this uncertainty. Where the Full Court of Appeal, per Byrne, Powell and Khan JJA, at para 37 & 38 stated:
'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:
[19] In Goundar (supra) also, the Fiji Court of Appeal followed White v Brunton for the proposition that:
'... where split trial is held then at the conclusion of each part of the trial the order of the Court determining the issue in respect of which that split trial was held is a final order.' (Emphasis provided)
[20] Scott, J in the case of FAI Insurance (Fiji) Limited v Rajendra Prasad Brothers Limited [2004] AUB 32/04 Decision 12 August 2004 adopted the above dictum and held that:
'where split trial is held then at the conclusion of each part of the trial the order of the Court determining the issue in respect of which that part of the split trial was held is a final order, thus there was no formal order was a mere irregularity as the court proceeded on the basis that the trial was split.'(Emphasis provided)
[21] Subject to O. 33, rr. 4 (2) and (5), the High Court Rules ('HCR') the court may order for split trial. O.33 r.4 (2) reads:
'In any such action different questions or issues may be ordered to be tried at different places or different modes of trial and one or more questions or issues may be ordered to be tried before the others'
[22] In FAI Insurances (supra) M D Scott, J sitting as single judge of the Court of Appeal said at pages 3 and 4 that:
'In some action there is only one substantive issue before the Court (claims for ancillary relief for the purposes of discussion be disregarded). Thus, for example, in an action for declaratory relief there may be no other claim but for a declaration.
During the course of determining such a claim the court may make a number of interlocutory orders. It may sit in different stages, adjourning after each stage before reaching the point where the final order is delivered, either granting or refusing the declaratory relief. The grant or refusal will clearly be final.
In an action in contract, or an action in tort, on the other hand, it is usual for both liability and the damages said to flow from that liability to be substantively in issue. In Fiji the more usual practice is for liability to be determined first, and, if found to exist then, if the matter is not settled, the court will address the question of damages.
The method of dealing with the two substantive issues separately is what referred to as holding a split trial. A split trial is clearly quite different in principle from a trial of one or more issues which happened to proceed in separate stages.' (Emphasis provided)
Conclusion
[23] The judgment against which leave is sought to appeal was delivered in an action initiated by originating summons. The substantive issue that was to be decided by the court in the action was whether the plaintiff/respondent was entitled to declaratory relief against the defendant/applicant. The court granted the declaration sought by the plaintiff with damage (ancillary relief) to be assessed. There was no split trial as contended by the applicant. There were no two substantive issues in the action. The question of split trial therefore did not arise. Even if split trial were held then at the conclusion of each part of the trial the order of the Court determining the issue in respect of which that split trial was held is a final order. The court delivered the judgment after hearing evidence through affidavit and granted declaratory relief. The decision determines (subject to any possible appeal or detailed assessment of damage) the entire proceedings. In my view a decision on liability is a final decision. Therefore, the judgment delivered on 24 February 2015 is a final judgment. The leave application is therefore misconceived one. I accordingly dismiss the leave application with costs of $750.00 which is summarily assessed.
Final Outcome
[24] The final outcome of this decision is that:
...............................................
M H Mohamed Ajmeer
JUDGE
At Lautoka
26 January 2016
Solicitors:
Messrs Lateef & Lateef, Barrister & Solicitors for applicant
Messrs A K Lawyers, Barristers &Solicitors for respondent
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