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Latchman v Singh [2010] FJHC 544; HBM88.2009 (29 November 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBM 88 of 2009

BETWEEN:

LATCHMAN
Plaintiff

AND:

MADHWAN SINGH
Defendant

Counsel: Samad Law for the Plaintiff
Sunil Kumar ESQ for the Defendant.

Date of Interlocutory Judgment: 29th November, 2010

INTERLOCUTORY JUDGMENT

This is an application made by the defendant appellant seeking following orders:

1. That leave be granted to appeal out of time of the judgment of Mr. Eparama Rokoika of 2nd October 2008 which was read out in open court on the 11th December 2008 in Civil Case No 007 0f 2008.
   
2. That an order for a stay of the said judgment.
   

100. That an order for a stay of the Order made by Mr Chaitanya Lakshman dated 5th November 2009 on means test in judgment debtor summons.
     

4. That the cost of this application be in the cause.
   

In support of the motion the defendant filed an affidavit.

The facts of the affidavit can be summarised as follows:

The plaintiff had instituted an action against the defendant on 8.02.2009 which was heard by the Magistrate on 8.9.2008. The written submission was ordered to file on 2.09.2008.The defendant's solicitor delayed in filing written submission but obtained the consent of the plaintiff to file the submission. When the written submission was taken to the Magistrate's Court registry it was refused by the registry stating that the judgment had already been written by the magistrate. The Magistrate had delivered the judgment on 11.12.2008.

In response to the defendant's affidavit the plaintiff filed affidavit. In the affidavit the plaintiff states that the learned Magistrate's decision was made on evidence and submissions filed by the plaintiff's solicitor.

Having cited some authorities, the defendant's counsel laid great stress on the Magistrate's failure to consider the defendant's written submission and its impact on the learned Magistrate's decision. Further, the principles upon which leave to appeal application should be granted were also stressed by the defendant.

However, it is interesting to note that there is no evidence to show that the defendant had ever given the notice of intention to appeal in the magistrate court.

Before going into the merits of the Magistrate's decision, court has to first consider whether the defendant has advanced any cogent reason to justify his delay in filing the leave to appeal out of time application.

Appeals from the Magistrates Court to the High Court are governed by the Order xxxvii of the Magistrates Court Rules which provides:

The appellant shall within one month from the date of the decision appealed from, including the day of such date, file in the court below the grounds of his appeal, and shall cause a copy of such grounds of his appeal to be served on the respondent.

The decision in the Magistrate court was delivered on 11.12 2008. The grounds of appeal were filed by the defendant on 4th December 2009. That is almost one year after the judgment of the Magistrates Court. It is apparent that the defendant failed to file his grounds of appeal within one month from the date of the Magistrates Court judgment.

Therefore, the onus of satisfying the court of the need for enlargement of time is on the defendant appellant.

In A.G & Another v. Paul Praveen Sharma, Fiji Court of Appeal, Civil App: No. ABU00041/93S 17.05.1995, five factors were identified for consideration in applications of this nature. These factors were reiterated by Justice Gates (as he then was) in Locks Crain and Constructors Ltd v.Clutch Systems (Fiji) Ltd [2002]FJHC 06.

They were:

1. The reasons for the failure to comply,
2. The length of delay.
3. Is there a question which justifies serious consideration?
4. If there has been a substantial delay, do any of the grounds urged by the applicant have such merit that they would probably succeed?
5. The degree of prejudice to the respondent in enlarging time.
   

It could be observed that the affidavit filed by the defendant does not disclose any valid reason for the failure to comply with the time limit within which the appeal shall be made.

Following authorities would throw lights as to how the court should approach in deciding the issue of delay.

In C.M.Stillevoldt B v. E.L.Carriers (1983) 1 WLR 207 the court allowed an extension where the applicant's solicitors were 2 weeks late in setting down the appeal where as in R v. Rhodes (1910) 5Cr App 35 a month was considered a substantial interval of time. In R.v. Marsh (1935) 25 Cr. App.R 49, two months were referred to as considerable delay. In both cases the application was refused.

In Rawashdeh v.Lane (1988) EG109 six weeks delay was referred to as lengthy.

In Revici v. Prentice Hall Incorporated and Others (1969) 1 All. E.R.772 it was held that:

1. The rules of the court must be observed and it mattered not that the plaintiff had offered to pay the costs and that no injustice would be done to the other side.
   
2. If there was non-compliance of the rules it must be explained; and prima facie if no excuse was offered, no indulgence should be granted.
   

In that case Lord Denning M.R. dealt with the issue of delay and non compliance with rules as follows:

"Nowadays we regard time very differently from what they did in the 19th century. We insist on the rules as to time being observed. We have had occasion recently on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the rules as to time. So here, although the time is not so very long, it is quite long enough. There was ample time for considering whether there should be an appeal or not. (I should imagine it was considered.) moreover (and this is important), not a single ground or excuse is put forward to explain the delay and why he did not appeal. The plaintiff had three and half month in which to lodge his notice of appeal to the judge and he did not do so. I am quite content with the way in which the judge has exercised his discretion. I would dismiss the appeal and refuse to extend the time anymore".

The grant of leave to appeal out of time is entirely a matter for the discretion of the court.

The following passage from the judgment of Privy Council in Ratnam v. Comaraswami and Another [1964] 3 All.E.R 933 at 935 amply demonstrate the courts reluctance to grant leave to appeal in a case of this nature in the absence of substantial reasons.

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.

'Though the court has power to extend the period of fourteen days under the above rule even when that period has expired, the power will not be exercised unless there is some good and reasonable excuse for the applicant having failed to act within the prescribed period.'

In the instant case, the delay was one year, which is not excusable in the absence of any reasonable explanation by the defendant.

In the Magistrates Court the defendant failed to file his written submission on the due date. But the defendant managed to get the consent of the plaintiff to file it. By that time the magistrate had written the judgment.

It was the duty of the defendant to file written submission on time. The defendant's allegation is that the registry refused to accept the defendant's submission on the ground that the judgment had already been written. Having failed to file the written submission on time, the defendant asks the court to say that an extension of time ought to be granted to him.

When the defendant failed to file written submission on the due date the Magistrate was not required to wait without writing the judgment.

Furthermore, had the defendant been prejudiced due to the non acceptance of the written submissions by the court, the defendant should have filed his grounds of appeal within the stipulated time.

Merely because the defendant states that he has an arguable issue, court is not bound to grant enlargement of time. The defendant must explain the delay. In order to do that the defendant must give cogent reasons. If the court grants enlargement of time disregarding the length of delay in filing the grounds of appeal, it would frustrate the purpose of Order xxxvii of the Magistrates Court Rules.

Therefore, in my view, no ground for acceding to the defendant's application has been shown.

Having regard to the above, I conclude that the defendant has failed to establish that substantial injustice was caused to him by the Magistrate's failure to consider the written submission. Also the intended appeal does not raise any vital point of law requiring the attention of the High Court.

The defendant appellant has also failed to show sufficient cause or merit to justify his application for leave to appeal out of time.

I, therefore dismiss the defendant appellant's application for leave to appeal out of time and also dismiss the application for stay the Magistrate Court's judgment and order.

The plaintiff respondent is awarded cost which is summarily assessed in the sum of $500.00.

Pradeep Hettiarachchi
JUDGE

At Suva
29th November, 2010