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Narayan v Fiji Gas Limited [2013] FJHC 574; HBJ112.2012 (31 October 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL ACTION NO. HBM 112 OF 2012

BETWEEN:

Hari Narayan
APPELLANT

AND:

Fiji Gas Limited
RESPONDENT

COUNSEL : Mr. Nandan for the Appellant
Ms. M Chan for the Respondent

Date of Judgment : 31 October 2013

JUDGMENT

[1] This is an application by the Applicant seeking an enlargement of time to appeal. The learned Magistrate handed down his Judgment on 13 February 2012 and this instant application has been filed on 19 July 2012 which is four months delayed. The affidavit in support of summons was dated 27 June 2012 but has been filed in July with the summons.

[2] At the hearing of this application, both parties were represented by counsel and made Oral Submissions. Thereafter an opportunity was given for both parties to file their Written Submissions but only the Respondent has filed its Written Submissions.

[3] Chronology of Events

• On 13 February 2012 the Magistrate Court had given a ruling in favour of the Respondent in this application. The Applicant had been granted 30 days to appeal which makes the appealable time to expire by 14 March 2012.
  
• The Applicant had filed a notice of appeal with the grounds of appeal on 23rd February 2012, in the Magistrates Court.
  
• The Notice of Appeal should have been filed in the High Court.
  
• It has been brought to the notice of court that the Applicant's application for stay of execution of the judgment had been struck out. It is noted that from 31 July 2012 the Applicant had been paying the amount in the Judgement by instalments.
  
• As per the case record, the Applicant had filed summons for enlargement of time to appeal on 19 July 2012. However as pointed by the Respondent the summons was dated 24 July 2012 with the supporting affidavit purported to be sworn on 27 June 2012 but filed on 19 July 2012.
  
• The High Court had granted Applicant further 7 days to file Supplementary Affidavit. However when the case was called again on 2 November 2012 the Applicant had not filed the Supplementary Affidavit and had informed Court that he was not filing.
  
• On 4 April 2013 the Applicant's counsel had informed that he was not perusing with the stay application and was only perusing the application for enlargement of time.
  

Facts Briefly

[4] The Plaintiff, Fiji Gas Ltd alleged that it has supplied gas to the Defendant and the Defendant had failed to honour the invoices and hence filed the case to recover these monies due on invoices.

[5] The Defendant disputed the amounts in the invoices, and the quantity supplied. It is to be noted the Plaintiff had failed to challenge the invoices when it was received. The learned Magistrate gave the judgment in favour of the Plaintiff with cost after the trial.

[6] The Applicant had filed his grounds of appeal with Notice of Appeal marked as "HN 2" with the affidavit in support of the motion. However as per the affidavit, he had instructed his solicitors to file an application for stay and for that purpose notice of appeal and grounds of appeal had been filed which is annexed marked as "HN 3". It was pointed out to court that the grounds of appeal marked in as HN 2 and HN 3 differs. Even though the Applicant had been given an opportunity to rectify this by filing supplementary affidavit, he had not availed the opportunity.

[7] However on 4 April 2013 the Applicant's counsel had informed that he was not proceeding with the application for a stay. Accordingly the grounds of appeal filed for the said purpose is disregarded and the court will consider the grounds of appeal marked as HN 2 as the grounds of appeal for this application.

The Law Pertaining to Present Application

[8] The law pertaining to the present application is well laid down and as per Eddis Mc Caig Vi Abh: Mangu CB V000012. FCA No of ABU0050 of 2005 Firstdep Maharaj –v- Burns Philip (South Seas) Company Ltd Civil Appeal No. ABU 51 of 1994 Norwhich and Peter Brought Buildings Society -v- Stead 91 2 ALLER 880. The governing principles in determination of these applications are:

(i) The reason for the failure to file within time.

(ii) The length of delay.

(iii) Whether there are the meritorious grounds for the appeal.

(iv) If there is delay prospect of success of the grounds of appeal.

(v) If the term is enlarged will the respondent be unfairly prejudiced.

Analysis of the Law
The Reason for the Failure to File Within the Time

[9] The Applicant has filed a brief affidavit in support of the summons. He submitted the Notice of Appeal with the grounds of appeal that had been filed in the Magistrate's court. He deposed that he is a layman and was unaware of the rules and therefore filed the same in the Magistrate's court. The Applicant was aggrieved by the judgment of the Magistrate court. In my view, he should be more diligent in finding in which court he should file his appeal.

[10] Further in the submissions, it was brought to the notice of this court that when the stay application was filed in the Magistrates court he was represented. On 24 April 2012 the Magistrate's court has ordered the application for stay of execution to be struck out. The view of the court was that the pleading ignorance of the rules are no excuse and if he intends to appeal, he should have obtained the services of a solicitor or legal advice in pursing his appeal and file the Notice of Appeal in the correct court. As pointed out in the submissions of the Respondent, the Appellant had had enough time, to file his application in the correct court without waiting till 19 July to file his notice of appeal, and the application for enlargement of time in the correct court. By filing the application for enlargement of time in the correct court, he could have shortened the period of default and also shown that he was a bona fide Applicant who had got good reasons to appeal and would have submitted his reason of being a layman. However as the counsel was present in the Magistrate's Court, this court is of the view that the reasons given to explain the failure to file on time is not acceptable and I conclude that the Applicant lacked due diligence in prosecution of his appeal.

The Length of Delay

[11] The learned Magistrate had delivered his order on 13 February 2012. The Appellant had 30 days to appeal but he had filed this appeal only on 19 July 2012. There is a delay of about 4 months. In the supplementary affidavit with the summons dated 19 July 2012 there is no sufficient explanation given by the Applicant to purge this delay. In the case of Arayan Enterprises v Mehak Unique Fashion, H.C Suva Civil Appeal No. 17 of 2008 a period of 19 days delay was held as an excessive delay. The time periods stipulated in the High Court rules are for a purpose and the parties have to abide by the rules unless they can establish exceptional circumstances.

[12] In R v Sunderland [1927] NSWStRp 78; 1927 28 S.R (NSW) 26 New South Wales Court held the exceptional circumstances have to be established before court for granting of an .enlargement. This Court observes that the 4 months delay is a substantial delay and the applicant had failed to satisfy this court in his affidavit in support of the summons that there are exceptional circumstances for court to consider extension of time.

Whether there are Meritorious Ground for Appeal and Prospect of Success

[13] As per the notice of appeal filed and the grounds of appeal submitted, it appears the applicant is relying heavily on facts rather than issues of law. This court is not required at this stage to go through the substantive merits of the appeal or the evidence before the Magistrate's court. I find that as per annexure "HN 1" the Applicant had failed to submit any of the documents to substantiate his submissions and accordingly his grounds of appeal becomes grounds on assumptions.

[14] The Applicant in the affidavit has not deposed the sufficient material for the court to come to the conclusion that there are meritorious grounds in the Notice of Appeal filed.

[15] The Respondent submitted that the Applicant had not challenged the accuracy of the invoices nor the supplied amount of gas and had in fact made a part payment. These facts were not denied. In these circumstances this court is of the view that the Applicant fails to impress court on the probability of success in the appeal.

Prejudice to the Respondent

[16] The Respondent has obtained the judgment in this matter on 13 July 2012. The Applicant had first filed the notice of appeal in the wrong court and thereafter had informed court that they were contemplating an appeal but failed to appeal till the expiry of four months. In Official Receiver –v- Partie Limited FCA29/97 the Court of Appeal held "any delay to a successful party receiving the fruits of the judgment is of course prejudicial".

[17] After careful consideration of facts submitted to court, I am of the view that the Defendant is entitled to see an end to the litigation and to reap the fruits of his judgment. Accordingly I hold that granting an enlargement of time to appeal in this instance will be prejudiced to the Respondent.

Conclusion

[18] The Applicant had failed to file his notice of appeal on time in the correct court.

[19] Even when it was brought to the notice that the appeal was filed in the wrong forum at the time of seeking a stay of execution of the judgment the Appellant was represented, but yet failed to file the appeal in the proper court. If he had done this he would have qualified in due diligence in prosecuting his appeal and shortened the length of delay.

[20] It has taken more than 4 months for the Applicant to file this application for enlargement of time.

[21] The Application has failed to show due diligence in prosecuting his cause as per the time restrictions set out in the High Court Rules.

[22] The Affidavit of the Appellant filed with the summons is of little use in prosecuting his application for enlargement of time.

[23] For the above stated reasons the Applicant has failed to convince to grant an extension of time to appeal.

[24] Accordingly I make the following orders:

[i] Application for enlargement of time to appeal is dismissed.

[ii] A cost in favour of the Respondent summarily assessed at FJ$1,000.00.

Susantha N. Balapatabendi
JUDGE