IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

Civil Appeal No. HBA 004 of 2009

BETWEEN:

LAWRENCE SANJAY LAL
APPELLANT

AND:

BABITA KUMAR VERMA and SANJAY SINGH VERMA
RESPONDENTS

Appearances: Ms L Goundar for the appellant  
Mr Kunal Singh for the respondents
 
Date of Hearing: 05 March, 2012

JUDGMENT

1.1 The appellant in this appeal, is appealing against a judgment of the Learned Magistrate made in these circumstances. The respondents had filed statement of claim in the Magistrates' Court against the appellant and Rakesh Kumar .The case against Rakesh Kumar was that he had borrowed motor vehicle no DW 570 from the respondents, which then sustained damages in an accident. Rakesh Kumar had agreed to repair the vehicle by an agreement in writing. The respondents had supplied motor vehicle parts to the value of $ 700 to Rakesh Kumar. The statement of claim proceeds to state that the motor vehicle was given by Rakesh Kumar to the appellant for repair. The respondents claimed damages for loss of use of the vehicle and a refund of the sum of $ 700 from Rakesh Kumar . They also advanced a claim of a sum of $ 3700 from Rakesh Kumar and the appellant to repair the motor vehicle.

1.2 The first respondent had in the first instance, filed an ex parte notice of motion in the Magistrate's Court for release of the motor vehicle by the defendants stating that Rakesh Kumar and the appellant had refused to release the vehicle to her. The Resident Magistrate had made Order releasing the vehicle to the respondents.

1.3 The Learned Magistrate, in his judgment dated 9th May,2008, held that the vehicle DW 570 was damaged when borrowed and used by a cousin of Rakesh Kumar. As the vehicle was given with Rakesh Kumar's consent, Rakesh Kumar was held liable in damages to the owner of the vehicle. Rakesh Kumar had agreed in writing to repair the vehicle, but he failed to pay and the repairs were carried out by the respondents. The finding as regard the appellant, was in the following terms:

"The "defendants(appellant and Rakesh Kumar) have agreed to carry out repairs but failed to do so. ..They are liable in damages to the plaintiff".

1.4 Nine months after the judgment was delivered, on 11 February, 2009, the appellant had sought clarification of the Learned Magistrate's judgment. In an Addendum dated 3 July, 2009, the Learned Magistrate confirmed that "both defendants are liable in damages to the plaintiff". The Addendum also provided that the " time for appeal may run from today if any party decides to take the matter on appeal".

2. The appellant has appealed to this court on the following grounds of appeal, namely, 
 
i.	The Learned Trial Magistrate erred in law and in fact in failing to evaluate the evidence adduced by the Appellant/2nd Defendant and the Respondents/Plaintiffs adequately and/or at all.

ii.	The Learned Trial Magistrate erred in law and in fact in making a finding that the Appellant/2nd Defendant was driving the motor vehicle (herein "said vehicle") on the 1st day of July, 2006, which is contrary to the evidence adduced in court.

iii.	The Learned Trial Magistrate erred in law and in fact in finding the Appellant/2nd Defendant liable despite the admission of the Respondents/Plaintiffs that the Appellant/2nd Defendant was only engaged by the 1st Defendant to repair the said vehicle.

iv.	The Learned Trial Magistrate erred in law and in fact in relying heavily on the Statement of Defence and completely failed to consider the evidence adduced by the Appellant/2nd Defendant.

3. The determination

The grounds of appeal raise the issue of whether the appellant has been unfairly held liable in damages. 

Counsel for the respondents, Mr Kunal Singh raised the preliminary issue that this appeal is filed out of time. I proceed to determine this matter.

An appeal to overset a judgment has to be launched within the time limit stipulated under Order XXXVII of the Magistrates' Courts Rules (cap 14) . Order XXXVII, r 1 requires a notice in writing of an intention to appeal to be filed "within seven days after the day on which the decision appealed against was given". There is no provision for extension of time to give notice of intention to appeal. 

In the present case, the Learned Magistrate delivered judgment on 9th May,2008, and one year and two months later on 10th July,2009, notice of intention to appeal was filed by the appellant. The grounds of appeal were filed on 29th July,2009.

Order XXXVII, r 3 requires the grounds of appeal to be filed "within one month from the date of the decision appealed from". There is power to extend the time to file grounds of appeal by the court below or the appellate court under Order XXXVII, r 4.

The provisions of Order XXXVII are mandatory, as held by Pathik J in Crest Chicken Ltd v Central Enterprises Ltd,(2005) FJHC 87. 

In Ratnam v Cumarasamy 1964 3 All E R 933 at 935, the Privy Council stated as follows:

"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". (emphasis added)

Lord Denning M R in Revici v Prentice Hall Incorporated & Others, (1969) 1 AER 772 at 774 stated as follows:

"Nowadays we regard time very differently from the way they did in the 19th century. We insist 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 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 there and a half months 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 any more". 

In my judgment, the Learned Magistrate had no power to depart from the mandatory provisions of Order XXXVII, as he has done in the Addendum to his judgment. He has held that the time for the computation of the time for filing an appeal commences from the date of the Addendum. Moreover, there was no application made to apply for extension of time to give notice of intention to appeal.

I hold this appeal has been filed out of time. Accordingly, the grounds of appeal do not arise for consideration. The respondents are entitled to costs summarily assessed in a sum of $ 750 payable to them by the appellants within 14 days of this judgment.

A.L.B. Brito- Mutunayagam
Judge

07th August 2012