IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Suva High Court Appeal No. HBM 57 of 2013
Suva Magistrates Civil Case No. 191 of 2009

IN THE MATTER 
of an appeal from the decision of the Magistrates Court in Civil Action 191 of 2009

BETWEEN:

AS TRUSTEE OF THE CHRISTIAN MISSION FELLOWSHIP, 
a Charitable Organisation, duly incorporated under the provision of Charitable Trust Act, Cap 67.

: SULIASI KURULO 
of Lot 4, Stage 4, Tacirua Plains Sub-Division, President

: VILIAME LOMALOMA 
of Global Mission Bible College, 
Seniwaloa, Labasa, General Secretary

: SANAILA SOQOVATA 
of Waiyavi Sub-Division, 
Lautoka, Executive Member

: MALAKAI MEKE 
of Vatia Sub-Division, Labasa,
Executive Member

: EMOSI TOROCA 
of 44 Batiki Street, Vatuwaqa, 
Executive Member
APPELLANTS

AND:

PERAL CONSTRUCTION LIMITED
a limited company having its registered office Lot 1, Lalita, Bhindi Street, Vatuwaqa
RESPONDENT

BEFORE : Hon. Justice Kamal Kumar
COUNSEL : Mr. A. Naco for the Applicant/Defendant
Mr. A. Reddy for the Respondent/Plaintiff

DATE OF HEARING : 11 July 2013
DATE OF RULING : 31 July 2013

RULING

1.0	INTRODUCTION

1.1	On 28 May 2013 Applicant filed Application by way of Summons for Leave to Appeal out of Time the decision of Resident Magistrate delivered on 19 March 2013 at Magistrate Court Suva in Civil Action No. 191/09 between the Respondent as Plaintiff and Applicant as Defendant.

1.2	On 7 June 2013 when the Application was called before me I granted Applicant time until 27 June 2013 to file Supplementary Affidavit in support and adjourned this matter to 2nd July 2013 for mention only.

1.3	On 2 July 2013 when this matter was called, Applicant sought leave to file Supplementary Affidavit by 4.00pm that day.

1.4	Accordingly leave was granted to the Applicant to file and serve Supplementary Affidavit by 4.00pm on 2nd July 2013 and Respondent was given time until 9 July 2013 to file its Affidavit in Reply and the Application was adjourned to 11 July 2013 at 9.30am for hearing.

1.5	On 11 July 2013 the Counsel for Applicant informed the Court that he has spoken to Respondent's Counsel and by consent both parties be given leave to file written Submissions and matter be adjourned for Ruling.

1.6	In view of the nature of the Application and the fact that no leave for filing of Submissions were sought on 2nd July 2013 I refused the Application for adjournment and directed the Counsel to make oral submissions.

2.0	PRELIMINARY ISSUES

2.1	It is noted that both the Supporting Affidavit and Supplementary Affidavit was signed by Senior Secretary in Applicant's Solicitors' firm.

2.2	The Court had time and again raised its concern regarding the execution of Affidavit by Staff of Legal Practitioners.

2.3	It seems some Legal Practitioners do not take the matters relating to Affidavit seriously which could be quite fatal if Affidavits are removed from file for not complying with the rules and practice for filing Affidavits.

2.4	In this instance the Ms. Cuvatoka in her Supplementary Affidavit deposed to alleged errors of law made by the Learned Magistrate when she does not possess any qualification to make such observation. At best she could have stated that she was informed by Solicitor for the Applicant. Even then, where Affidavits deal substantive issues and merits of case then the Affidavit should be signed by Legal Practitioner or the party to the proceedings on the advise of the party's solicitor.

2.5	I will for the purpose of Application disregard the anomalies in the Affidavit and deal with the Application.

3.0	APPLICATION FOR LEAVE TO APPEAL OUT OF TIME

3.1	It was rightly submitted by both Counsel that this Court has unfettered discretion to grant or refuse leave to Appeal out of Time.

3.2	It is well established that the factors (which of course are not exhaustive) that needs to be taken into consideration when dealing with such applications are:-

(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.

CM Van Stilleveldto B V v. E L Carriene Inc. [1983] 1 ALL ER 699 of 704; Norwich and Peterborough Building Society v. Steed [1992] 2 ALL ER 830 at 83; Ist Deo Maharaj v. BP (South Sea) Co. Ltd. Civil Appeal No. ABU0051 of 1994S – FCA as page J.

3.3	Hence the Court must be given facts, in the form of evidence explaining and/or covering these four factors.

 Latchmi & Anor v. Moti & Ors (1964) 10 FLR 138.

3.4	Length of Delay

In Revici v. Prentice Hall Incorporated & Ors [1969] 1 ALL ER 772 – Lord Dennings M R rejecting the Appellant's submission that time does not matters as long as costs are paid stated as follows:

"Nowadays we regard time very differently from what they did in the nineteenth century. We insist on rules at time being observed. ... so, here although time is not quite so very long, it is quite long enough."

In Revici's case time for appeal had expired by one month.

Order XXXVII Rule 2 of the Magistrates Court Rules provides that:- 

"1. Every appellant shall within seven days after the day on which the decision appealed against was given, give to the respondent and to the court by which such decision was given (hereinafter in this Order called "the court below") notice in writing of his intention to appeal."

In this instant Ruling by the Learned Magistrate was delivered on 19 March 2013 as such time for giving notice of intention of appeal expired on 27 March 2013.

The Application for Leave to Appeal out of time was filed on 28 May 2013 that is two months after the expiry date.

I find that there has been inordinate delay by the Intended Appellant in filing the Application.

3.5	Reasons for delay

Lord Davies in Revici's case stated that:-

"... rules are there to be observed and if there is non-compliance (other than a minimal kind), that is something which has to be explained away.

Prima Facie if no excuse is offered, no indulgence should be granted" (at 747 para F).

Application was refused in Revici's case as no explanation for delay was given.

In 1st Deo Maharaj – the Court of Appeal adopted with approval the following quote from Gallo v. Dawson [1990] 64 ALJR 458 at 459.

"Case needs to be exceptional before a Court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he/she had researched the issues involved. In Hughes v. National Trustees Executors & Agency Co. of Australasia Ltd [1978] VR 257, Mclnerney J pointed out (at 263) that one object of fixing times under court rules is "to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations." When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a "vested right to retain the judgment". It would make a mockery of 0 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of knowledge is a misfortune, not a privilege."

In Tevita Fa v Tradewinds Marine Ltd. & Anor – Civil Appeal No. ABU0040 of 1994 (FCA) – His Lordship Justice Thomson (as then he was) in dismissing Appellant's application for extension to appeal made four days after the expiration of time to appeal stated:-

"The application for leave to appeal was fixed only 4 days after the end of the period of six weeks. That is a very short period but time-limits are set with the intention that they should be observed and even lateness of only a four days requires a satisfactory explanation before an extension of time can properly be granted. In this case, as stated above, the applicant has given no explanation at all. That he may have been confused is merely an inference that Mr. Patel has asked me to draw from his statement of present belief that time began to run only from 8 August, 1994." 

In Tevita Fa's case, it was submitted by the Appellants' counsel that there had been a misunderstanding on the solicitor's part as when time started running for Appeal.

The following explanation for delay has been held to be unsatisfactory and not a basis for granting extension by the Fiji Court of Appeal:-

•	Oversight by instructing solicitor due to Appellant's commitment in Australia even when the Appellant's solicitor was engaged in a Supreme Court (now High Court) criminal trial at relevant time for filing appeal. Jawant Singh v. Peter Francis (Action No. 57 of 1973 FCA (cyclostyled judgment) – Marsack JA (referred to in 1st Deo's case at page 3).

•	Misunderstanding as to when time for appeal started running.

[Tevita Fa's case]

•	a misunderstanding of the effect of Court of Appeals judgment concerning the Special Damages.

Attorney General of Fiji & Anor v. Paul Praveen Sharma – Civil Appeal No. ABU0041/93S – FCA.

•	Applicant's solicitor mistakenly thought they had 30 days in which to appeal from the date on which judgment was served (Applicant's solicitors to be blamed – not applicant).

[Latchmi's case]

The reason for delay in the Application before this Honourable Court stated in paragraphs 2 to 6 of Affidavit in Support of Litiana Cuvatoka sworn on 27th May 2013 as follows:-

"2.	THAT our office had appeared on the Hearing of this matter where we had acted for the Defendants and directives were given by the Court for the filing of submissions by both parties.

3.	THAT due to an administrative oversight by our office, the dates for filing were completely overlooked and we missed out on filing the relevant submissions.

4.	THAT we only became aware of the decision by the Learned Magistrate when we made enquiries after becoming aware of the failure on our part in complying with the directives of the Court.

5.	THAT we realise that the decision had been made two months ago and that our office was totally unaware of it.

6.	THAT the learned Magistrate proceeded to making her decision without the benefit of our submissions and subsequently ruled against our clients, the Defendants."

At paragraph 4 of her Ruling the Learned Magistrate stated as follows:

"The Court gave sufficient time to both parties to make written closing submissions. Twenty one days was given to the Defendant's Counsel for him to file and serve his closing submissions on the Plaintiff's Counsel for the latter to file and serve his closing submissions. The Defendant's Counsel failed to file his closing submissions. This matter was adjourned for another forty two for the same reason. The Defendant's Counsel yet again failed to file his closing submissions."

Trial of the Magistrates Court action was commenced on 14 October 2011.

The Applicant in the Affidavit in Support does not mention the extension of time granted by the Learned Magistrate for filing of the submissions.

The Applicant's Counsel apologized for this oversight when it was raised by the Court.

I find the reason for delay advanced by the Applicant to be totally unsatisfactory. 

3.6	Chance of Success of Appeal

His Lordship Justice Richmond in Avery v. No. 2 Public Service Appeal Board & Ors [1973] 2 NZLR 86 stated as follows: 

"Once an appellant allows the time for appealing to go by then his position suffers a radical change. Whereas previously he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal." 

In Tevita Fa's case his Lordship Justice Thomson stated as follows: 

"However, as important as the need for a satisfactory explanation of the lateness is the need for the applicant to show that he has a reasonable chance of success if time is extended and the appeal proceeds."

It is the Applicant's contention that the monies claimed by the Respondent in Court below was Value Added Tax ("VAT") whereas Respondent claimed it was retention money.

Applicant submitted that the contract price between the parties and subject to the Court proceeding was VAT exclusive which meant that each party pay their own VAT to Fiji's Revenue and Custom Authority - ("FRCA"), whereas Respondent claimed that the monies claimed were retention monies and payment of VAT was Respondent's responsibility. 

It is the responsibility of the service provider ("supplier") to collect VAT and pay to FRCA as prescribed in the VAT Decree.

Where a price quoted stated as "VAT Exclusive" it simply means that price quoted does not include VAT. This does not relieve the supplier from his/her duty to collect VAT from the receiver of the service and pay to FRCA in terms of provision of VAT Decree.

In others words price exclusive of VAT means that the receiver of the service has an obligation to pay to the provider of the service the invoiced price plus an amount equivalent to service provider's VAT liability.

Only exception is where the supply made is "zero rate supply" for which parties have to obtain written confirmation from FRCA or where Minister of Finance grant an exemption to the receiver of service from paying VAT.

Unless and until the Applicant/Defendant had been exempt from paying VAT as aforesaid the Respondent/Plaintiff was legally obliged to pay the VAT on the contract price to FRCA.

The Applicant also raised the issue that they were not given further time to file submission. The Learned Magistrate did what she was supposed to do. In fact she extended the time for filing of the submission by another 21 days each to both parties (in total by 42 days).

The Respondent's counsel submitted that the Applicant has failed to annex the proposed grounds of Appeal to the Affidavit filed. Even though the Applicant is not obliged to annex the proposed grounds of appeal they must state in the Affidavit as to what the grounds of appeal are and what the prospect of success of the Appeal is if leave is granted. In this instance the Applicant has failed to meet this requirement.

The Learned Magistrate must be commended for delivering her Ruling on the basis of pleadings filed and evidence heard by her, in absence of written submission from the parties.

The fact that the Learned Magistrate found that the monies claimed were due to Respondent/Plaintiff it does not matter whether amount claimed was for VAT (as claimed by the Applicant/Defendant) or retention monies (as claimed by Respondent/Plaintiff).

Accordingly I find that Applicant has no reasonable chance of success on appeal if leave to Appeal out of Time is granted.

3.7	Prejudice to Respondent/Plaintiff

It is well established principle that a litigant should not deprived of fruits of his judgment. 

In Avery's case his Lordship Justice Richmond at page 92 further stated:-

"The rules do not provide that the Court may grant leave if satisfied that no material prejudice has been caused by the failure to appeal in time. Everything is left to the discretion of the Court on the wide basis that leave may be granted in such cases as the justice of the case may require. In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant on the one hand for leave to be granted together with the effect which the granting of leave would have on other persons involved."

His Lordship Justice Marsack JA in Latchmi's case stated:-

"In deciding whether justice demands that leave should be given, care must, in my view, be taken to ensure that the rights and interests of the Respondent are considered equally with those of the Appellant."

Respondent Counsel submits that the action in Magistrates court was commenced in 2009 and was only heard in November 2012. He also submits that it was the Applicant/Defendant who contributed to the delay in delivering of the Ruling in Magistrates Court. He relied on Avery's case in support of his submission.

I note from the ruling in Magistrates court action that; 

(i)	the contract was completed sometimes in the year 2006;

(ii)	legal action was instituted for recovery of monies owning by the Applicant/Defendant in 2009;

(iii)	Magistrates court matter was part-heard on 14th October 2011 and was continued on 28 November 2012.

I am of the view that Respondent/Plaintiff should no longer be deprived of the fruits of the Judgment delivered by the Learned Magistrate on 19 March 2013.

4.0	CONCLUSION

4.1	I make the following orders:-

(i)	Applicant's/Defendants' Summons for Leave to Appeal Out of Time dated 27 May 2013 and filed on 28 May 2013 is dismissed and struck out.

(ii)	Applicant/Defendant is to pay Respondent/Plaintiff's costs of the Application assessed in the sum of $500.00.

KAMAL KUMAR
JUDGE

At Suva
31 July, 2013