IN THE HIGH COURT OF FIJI AT LABASA
APPELLATE JURISDICTION

CIVIL ACTION No. HBA 01 of 2016

BETWEEN:

SATISH CHAND
APPELLANT/ORIGINAL APPLICANT

AND:

LAND TRANSPORT AUTHORITY
1ST RESPONDENT/ORIGINAL RESPONDENT

AND:

PARMOD ENTERPRISES LIMITED
2ND RESPONDENT

COUNSEL : Mr. S. Sharma for Appellant.
 Ms. M. Ligabalavu for 1st Respondent

Date of Hearing : 09th March, 2016
Date of Ruling : 31st March, 2016 

RULING

[1] The appellant filed the originating summons (expedited from) on 20th November 2015 seeking enlargement of time to appeal against the decision of the Land Transport Authority Appeals Tribunal dated 23rd January 2015.

[2] The appellant brought the petition of appeal to the High Court Registry of Labasa on 20th February 2015 at 2.30 p.m. and the registry returned the petition of appeal to clarify the correct court in which it should be filed. Twenty-first and twenty-second of February 2015 were Saturday and Sunday respectively and on the 23rd February 2015 the petition of appeal was handed over to the High Court Registry again by the appellant's solicitors. These facts are borne out by the letter issued by the Senior Court Officer of Labasa High Court on 14th September 2015, the relevant paragraph of which reads as follows;

The petition of appeal as per our records was brought at the High Court Registry on 20th Day of February 2015 at 2.30 p.m. The petition was returned for clarification in detecting the right court of origin on the following issues.

[3] On 25th August 2015 the 2nd respondent filed a notice of motion seeking to have the appeal dismissed on the ground that it was filed out of time. On 14th January 2016 the court struck out the appeal upon withdrawal.

[4] The High Court Registry should not have returned the petition of appeal for clarification. Once it was tendered they should have accepted it and referred it to the Master or a Judge for a ruling on the question of jurisdiction. However, the appellant without challenging the mistake made by the registry which led to the delay in sealing the petition of appeal withdrew it. 

[5] As submitted by the learned counsel for the 1st respondent there is a long delay in making this application for enlargement of time. The order sought to be appealed against was made on 23rd January 2015 and the originating summons seeking enlargement of time was filed on 20th November 2015. 

[6] Order 3 Rule 4(1) of the High Court Rules provides as follows;

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required to authorise by these rules, or by any judgment, order or direction to do any act in any proceedings. 

[7] Enlargement of time to file an appeal is granted at the discretion of the court. In the case of Native Land Trust Board v Khan [2013] FJSC 1, the Supreme Court held that in an application for enlargement time to prefer an appeal under Order 3 Rule 4(1) of the High Court Rules the appellate courts consider five factors to ensure a principled approach to the exercise of a judicial discretion. Those factors are: 

(i)	The reason for the failure to file within time.
(ii)	The length of the delay.
(iii)	Whether there is a ground of merit justifying the appellate court's consideration. 
(iv)	Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v)	If time is enlarged, will the respondent be unfairly prejudiced?

[8] In this case there was no delay at all on the part of the appellant in filing the petition of appeal. If the registry accepted the documents filed within time by the appellant he would not have had to make an application for extension of time to appeal. The appeal papers were filed for the 2nd time on the 23rd February 2015 since there was an intervening weekend. The 2nd respondent taking the advantage of the error made by the officials of the registry made an application to strike out the appeal on the ground that it was filed out of time. 

[9] It is therefore, clear that there had been no delay on the part of the appellant in preferring the appeal but due to the mistake of the officers of the court and for no fault of his only the appellant was compelled to seek an enlargement of time file the petition of appeal. 

[10] In the circumstances the grounds set out by the Supreme Court in the case of Native Land Trust Board v Khan [2013] FJSC 1(supra), need not be considered in this case. This is not a case where the appellant waited till the expiry of the period prescribed by law to prefer the appeal and later sought extension of time. 

[11] The learned counsel for the 1st respondent submitted that the appellant withdraw the appeal filed originally and the 2nd application was filed more than eight months after the judgement sought to be appealed against. At the time the appeal was withdrawn the appellant had already tendered his application for extension of time. However, all this delay would not have been caused if the High Court Registry accepted the appeal filed within time by the appellant. The appellant cannot be penalised for the mistake of the officers of the court. 

[12] For the above reasons I make the following orders.

ORDERS.

1.	The application of the appellant for enlargement of time to prefer an appeal is allowed.
2.	The appellant shall file the petition of appeal within Twenty one (21) days from today.

Lyone Seneviratne
JUDGE
31st March 2016