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Banaban Elders and Landowners Association v Banaba Ltd [2016] FJHC 78; HBC55.2014 (9 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 55 of 2014

IN THE MATTER
an application under section 169 of Part XXIV of the Land Transfer Act, Cap. 131 for the order for immediate vacant possession.

BETWEEN:

BANABAN ELDERS AND LANDOWNERS ASSOCIATION
Established on the 8th day of September 2011 under the Industrial Association Act (Cap 95) situated at 8 – 10 Pratt Street, Suva.
APPELLANT

AND:

BANABA LIMITED
a limited liability company having its registered office at Suva in Fiji.
RESPONDENT

COUNSEL : Mr. W. Hiuare for the Appellant
Ms. N. Tikoisuva for the Respondent

Date of Hearing : 4 December 2015
Date of Ruling : 9 February 2016

RULING

Introduction and Background

[1] This is an application made by the Appellant in terms of the provisions of Order 59 Rule 10(1) of the High Court Rules 1988, for leave to appeal out of time.

[2] The application for leave to appeal out of time is against a ruling made by the Acting Master of the High Court on 25 August 2015.

[3] The original application was filed by the Respondent, Banaba Limited (the original Plaintiff in this matter). This was by way of a Summons for Ejectment, which was filed on 24 February 2014, under section 169 of Part XXIV of the Land Transfer Act (Chapter 131), seeking an order against the Appellant (the original Defendant in this matter) for the immediate vacant possession of the property situated at Shop 3, Banaba House, Pratt Street, Suva.

[4] The case was taken up for hearing before the Acting Master of the High Court, on 25 May 2015, where both parties were represented by counsel.

[5] On 25 August 2015 the Acting Master of the High Court made order that the Appellant give vacant possession of the of the property situated at Shop 3, Banaba House, Pratt Street, Suva, to the Respondent. The Appellant was ordered to deliver vacant possession in one month's time on or before the 25 September 2015. A summarily assessed cost in the sum of $500 was also ordered against the Appellant.

[6] This is the order against which the Appellant is now seeking leave to appeal out of time.

[7] As stipulated in Order 59 Rule 10(2) of the High Court Rules 1988, the application has been made by way of an inter-parte summons, which is supported by an affidavit filed by Tekoti Rotan, Vice President of the Banaban Elders and Landowners Association. The said inter-parte summons and affidavit in support was filed in court on 27 October 2015.

[8] When this matter was called before me for the first time, on 9 November 2015, an application was made by the Counsel for the Appellant to file an amended affidavit in support. Court permitted this application.

[9] Accordingly an amended affidavit in support was filed, on 18 November 2015, by the said Tekoti Rotan, Vice President of the Banaban Elders and Landowners Association.

[10] The Appellant has also filed, on 10 November 2015, Notice and Grounds of Appeal, together with a Summons in terms of Order 59 Rule 17(2) of the High Court Rules 1988 and also a Motion for Stay of proceedings until the final determination of the matter.

[11] An affidavit in response has been filed on 2 December 2015, by Tearikaeto Taremon, Property Manager, of the Respondent Company.

[12] This matter was taken up for hearing before me on 4 December 2015. Both counsel for Appellant and Respondent were heard. The parties also filed detailed written submissions, which I have had the benefit of perusing.

The Amended Affidavit filed by Tekoti Rotan

[13] The main issues that have been raised by the Appellant are found in the amended affidavit in support filed by Tekoti Rotan. They can be summarised as follows:

1. That due to the financial difficulties faced by the Appellant they could not deposit the requisite funds into their Solicitors Trust Account in order for their appeal to be lodged within time.

2. Since the Respondent held their shares to the property there is no prejudicial effect to them.

3. Since this was a dispute between Banaban against Banaban, the Master of the High Court gave opportunities for the parties to settle the matter in the Banaban way. However, it was the Respondent who refused to resolve this matter according to custom and tradition.

4. That the Appellant offered and requested for a three years Tenancy Agreement. However, the Respondent has refused to accept it.

5. The fact that the Respondent filed this action for evicting the elders is disrespectful.

6. There are serious matters stated in the Notice and Grounds of Appeal which needs adjudication.

7. Reference is also made to a writ of summons filed in Civil Action No 255 of 2015. It is said that in terms of this writ of summons three causes of action, which are matters disputed, have been pleaded which are to be tried in open Court.

The Affidavit in response filed by Tearikaeto Taremon

[14] The Respondent addressed the above issues as follows:

1. The reasons given by the Appellant are not satisfactory for the grant of leave to appeal out of time.

2. The Appellant was represented in these proceedings and ought to have been fully aware of the expiration of the time period for the appeal.

3. The financial difficulties raised by the Appellant is not consistent with their conduct in the Courts as subsequent to the Orders of the Master of the High Court, the Appellant filed Writ of Summons along with a Notice of Motion and Affidavit for Stay and a Notice of Motion and Affidavit for Injunction (in Civil Action No 255 of 2015), which equates to approximately $230 in filing fees alone.

4. The Respondent has no legal obligation to pay any shares to the Appellant as the shares are held by the Rabi Council of Leaders as they hold the majority shares.

5. The Respondent's agreement with the Appellant was by virtue of a Tenancy Agreement and not in the Banaban way, as alluded to by the Appellant. It is also not clear to the Respondent as to what is meant by the Banaban way, which the Appellant is referring to.

6. The Respondent does not wish to continue to keep the Appellant as Tenants in light of the history of non-payment of Rents.

Legal Provisions and Analysis

[15] Order 59 Rule 8(1) of the High Court Rules 1988 provides as follows:

An appeal shall lie from a final order or judgment of the Master to a single judge of the High Court.

[16] The time period within which such an appeal should be made is stipulated in Order 59 Rule 9(1) of the Rules as follows:

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) ........

[17] Order 59 Rule 10(1) of the Rules states:

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.

[18] Therefore, it is clear that the granting of leave to appeal out of time is clearly a discretionary power of this Court.

[19] In the case of George Niumataiwalu v. Ian Patrick Ng and Dale Ng [2012] Fiji High Court Civil Action No. HBC 131/2008 (7 December 2012), His Lordship Justice Brito-Mutunayagam referred to a very pertinent passage of the Privy Council decision of Ratnam v. Cumaraswamy (1964) 3 All ER 933 at page 955:

"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 on which the court can exercise its discretion. If 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".

[20] In the case of Ist Deo Maharaj v. Burns Philp (South Sea) Co. Limited Civil Appeal No. ABU 51/1994, it was held that the factors that needs to be taken into consideration when dealing with applications for leave to appeal out of time are the following.

(i) Length of delay;
(ii) Reason for delay;
(iii) Chance of appeal succeeding if time for appeal is extended, and
(iv) Degree of prejudice to the Respondent if application is granted.

[21] It has now been well established that these are the factors (which are indeed non exhaustive) that Court needs to take into consideration when dealing with such applications.

[22] This position has been further affirmed by His Lordship Justice Kamal Kumar in the case of Atunaisa Lacabuka Rasoki v. The Attorney-General of Fiji or States or Governor; Lands Minister or Chief Surveyor or Registrar; Native Reserve Commission, Native Lands Trust Board, Fiji Museum; and Salesi Temo [2014] Fiji High Court Civil Action No. HBC 107/2009 (24 June 2014); and by His Lordship Mohamed Ajmeer in the case of Wali Mohammed v. Mohammed Shamsher Azaad Khan [2015] Fiji High Court Civil Action No. HBC 67/2014 (2 October 2015).

[23] In the case of Imraz Iqbal Ali trading as Infocus Arts v Dominion Insurance Limited and Fiji Development Bank [2011] Fiji High Court Civil Action No. HBC 132/2007 (31 October 2011), His Lordship Justice Pradeep Hettiarachchi has elaborated on the factors to be considered in an application for leave to appeal out of time. In doing so he makes reference to the case of Safari Lodge Fiji Ltd v. Rosedale Ltd Fiji High Court Civil Action No. 319/1999, where it was held that the factors to be considered in an application for leave to appeal out of time are the following:

(i) Whether an applicant formed a bona fide intention to seek leave to appeal and conveyed that intention to the opposition party within the prescribed time;
(ii) Whether counsel moved diligently;
(iii) Whether a proper explanation for the delay has been offered;
(iv) The extent of the delay;
(v) Whether granting or denying the extension of time will prejudice one or other of the parties; and,
(vi) The merits of the application for leave to appeal.

[24] In the present application the Acting Master of the High Court made his Ruling on 25 August 2015. The period of appeal of 21 days lapsed on 15 September 2015. The application for leave to appeal out of time (the summons and affidavit in support) was filed in court only on the 27 October 2015, which was six weeks (42 days) after the due date for the filing of the appeal. It is the opinion of this Court that the extent of the delay in this case is unreasonable. It must be added that the Appellant has not formed a bona fide intention to seek leave to appeal in this matter within the prescribed time.

[25] The explanation offered by the Appellant for the delay is that due to the financial difficulties faced by them they could not deposit the requisite funds into their Solicitors Trust Account in order for their appeal to be lodged within time. It is the view of this Court that this is not a proper or reasonable explanation for this inordinate delay.

[26] Furthermore, the Respondent has correctly pointed out that the issue of financial difficulties raised by the Appellant is not consistent with their conduct in the Courts. It has been established that subsequent to the Orders of the Master of the High Court, the Appellant filed Civil Action No 255 of 2015, by way of Writ of Summons (along with a Notice of Motion and Affidavit for Stay and a Notice of Motion and Affidavit for Injunction), instead of diligently pursuing this appeal within the stipulated time period.

[27] In determining whether there is a chance of the appeal succeeding if the time for appeal is extended, Court has to necessarily examine the merits of the application for leave to appeal. For this purpose it is important to go through the Grounds of Appeal. Following are the Grounds of Appeal filed by the Appellant in this case.

1. THAT the Acting Master of the High Court erred in law and in fact in holding that the question to be decided was whether the Plaintiffs are entitled to possession. The Acting Master failed to consider that a section 169 application is a Summons to show cause by the Appellant as to why he should not give vacant possession of the property in question. The Acting Master failed to investigate serious matters when the Appellant raised the issue that the Respondent Company being the same Banaban people of Rabi Island and 699,998 shares of the Plaintiff Company is held by the Rabi Council of Leaders for the people of Rabi island and as such it would be a great injustice to invoke section 169 of the Land Transfer Act Cap 131 in evicting the Appellant Association who are shareholders and owners of the Respondent Company.
   
2. THAT the Acting Master of the High Court erred in law and in fact failing to properly direct himself on the provisions of section 172, Land Transfer Act Cap 131. The Appellant has deposed in his Affidavit in Opposition that their interest as landowners, shareholders and beneficiaries by virtue of the Banaban Settlement Act, which the Acting Master failed to investigate further and hold that the matters raised here are matter of complicated nature which cannot be summarily decided by a section 169 application.
   
3. THAT the Acting Master of the High Court erred in law and in fact failing to direct himself that now the Rabi Council of leaders is dissolved, who owns the said shares now, is it still the Appellant members or not which was not investigated by Master as serious issue.
   
4. THAT the Acting Master of the High Court erred in law and in fact in failing to investigate into the matter that the current Directors of the Respondent Company were originally appointed by the dissolved Rabi Council of Leaders and therefore they humbly honestly believe that the position of the current directors are now illegal, null and void. This is a complicated matter which was raised by the Appellant which the Acting Master failed to investigate and a section 169 application is not the appropriate action.
   
5. THAT the Acting Master erred in law and in fact in failing to consider that since Rabi Council of Leaders dissolved and not a party to this case however issues raised dealing with the interest of shareholders held by the said dissolved body, the Acting Master should have agreed that this is serious issue which cannot be heard under a section 169 application hence erred in law and fact to this effect.
   

[29] The counsel for the Appellant has placed heavy reliance in the case of Natsun Pacific Limited v. Suresh Hansji Minakshi Ben Fiji Court of Appeal Civil Appeal No. ABU 15/2005S (High Court Civil Action No. HBC 0184/2014S) (11 November 2005) (Scott, JA, Wood, JA, Ford, JA).

[30] I have carefully perused the Ruling made by the Acting Master of the High Court. I am of the view that he has correctly analysed all the issues in this case, including the proper interpretation of the relevant provisions of the Land Transfer Act (Chapter 131).

[31] Considering all the facts in this case, it is opinion of this Court that grave prejudice will be caused to the Respondent if the application for leave to appeal out of time is granted.

Conclusion

[32] For all the aforesaid reasons this Court is of the view that leave to appeal out of time should not be granted in this case. Accordingly the application for leave to appeal out of time is dismissed. I make no order for costs.

[33] Accordingly, I make the following Orders:

ORDERS

1. The application made by the Appellant for leave to appeal out of time is dismissed.
2. I make no order for costs.
   

Dated this 9th day of February 2016, at Suva.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI