IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION		
	High Court Civil Appeal No. HBM  04/2013
[Civil Action No. 254 of 2011]
	
BETWEEN	:	AMBIKA PRASAD of Field 5 Sabeto Nadi.
	
		Applicant
	
AND	:	ELIKI KINIVALE  of Carreras Road, Votualevu, Nadi. 
	
		Respondents	
Appearances	:	Mr E. Maopa for Applicant	
		Respondent in Person
	
R U L I N G

INTRODUCTION
1.	Before me is a Summons dated 08 August 2013 and amended on 03 September 2013 seeking the following:

(i)	That leave be granted to extend time to appeal the Judgement delivered by His Worship Mr. Samuela Qica on 11th May 2013 in Nadi Magistrates Court Civil Action No. 254 of 2011. 
(ii)	That leave be granted to appeal out of time.
(iii)	That the execution of the Judgement/Order be stayed forthwith
(iv)	That costs be in cause 

2.	The application is supported by an affidavit of Ambika Prasad sworn on 01st August 2013 and filed on 08 August 2013 and by a supplementary affidavit filed on 23 October 2013. 
3.	The Respondent has not filed any affidavit in opposition. He has only appeared once, in person, on the first call over date on 10 September 2013. After that, he never again appeared in Court.

DISCUSSION

4.	Order XXXVII Part 1 of the Magistrates Court Rules provides that an appellant must give notice of intention   to appeal   within 7 days after the decision was given and under Part III and file at the Magistrates Court his grounds of   appeal   within one month from the date of the decision:

I. Notice of Intention   to Appeal  
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  :

Provided that such notice may be given verbally   to   the court in the presence of the opposite party immediately after judgment is pronounced.

II. Security for Payment of Costs

2.- (1) Upon receiving notice of intention   to appeal, the court below may in its discretion order the appellant   to   give security,   to   the satisfaction of the court if the parties differ, in such sum as the court shall direct, either by deposit, or by bond in Form 35 of Appendix A, for the payment of all such costs as may be awarded   to   any respondent by the appellate court. 

(2) Where the security is by bond-

(a) the bond shall, unless the court otherwise directs, be given   to   the respondent;

(b) If the appellant is unrepresented, the bond shall be prepared by the court.

III. Grounds of   Appeal  

3.- (1) 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   appeal to   be served on the respondent.

(2) At the   time   the appellant files the grounds of his   appeal   he shall deposit with the clerk of the court below such sum as the clerk shall consider sufficient   to   cover the fees prescribed in Appendix B for the preparation, certification and copying of the record.

5.	Clearly, the appellant has failed to comply with Order XXV II of the Magistrates Court Rules. 
6.	In any given case, whenever an intended appellant fails to comply with the above stipulated time, it becomes a matter of discretion for the court whether or not   to   grant   leave to appeal out   of   time. The onus falls heavily on an intended appellant   to   convince the court   to   grant   leave.
7.	In Herbert Construction Company ( Fiji ) Ltd v  Fiji  National Provident Fund [2010] FJCA 3; Miscellaneous Case 020  of  2009 (3 February 2010) the court there stated:-
"It is well settled law that once the rules are not followed it is the discretion  of  the court   to   grant   leave to  appeal  out    of   time    and that the onus rests upon the appellant   to   satisfy the court that in all circumstances the justice  of the case requires that he be given an opportunity   to  appeal  out    of   time    against the judgment he wishes   to  appeal   "

8.	The above suggests that a party's right of   appeal   exists while   time   runs for the filing of the requisite   appeal   documents. Once   time   runs   out it then becomes a matter of judicial discretion whether or not to grant leave to appeal out of time.  Of course, that discretion must still be exercised judicially. 
9.	Mr. Justice Callanchini sitting as a single judge of the Supreme Court, reiterated the same principles in Naba v Tower Insurance (Fiji) Ltd [2011] FJSC 9; CBV0002.2011 (24 June 2011):
Principles

[7] The power   to   extend the   time   for an   appeal   is discretionary, and has   to   be exercised judicially, having regard   to   established principles. The following factors are usually considered when determining an application for an extension  of   time  , namely (a) the length  of  the delay, (b) the reasons for the delay, (c) whether there is an arguable case on the    appeal    and (d) the degree  of  prejudice   to   the respondent if    time    is extended.

ANALYSIS
Length of Delay & Reasons
10.	The appellant filed his summons in this court on 08 August 2013. The ruling of the Learned Magistrate had been delivered some three months earlier on 11 May 2013.  To   explain the delay, the appellant deposes as follows at paragraphs 3 to 13 of his affidavit. He says that a ruling of this matter was first handed down on 20 November 2012 which was received by his solicitor. The ruling was not in his favour. He then instructed his lawyer to file an appeal. It appears that his solicitor then filed an appeal at the High Court. However, the High Court then returned the appeal and advised the solicitor to file the same at the Magistrates Court Registry. Apparently, on 28 February 2013, the solicitor filed the appeal at the Magistrates Court. However, he was only to be told that the ruling had yet to be delivered. This caused much confusion to the solicitor who had actually received a judgement on the matter earlier on 20 November 2012.
11.	His solicitor then left the matter at that and simply awaited the ruling. In due course, the solicitor would receive a NOAH from the Magistrates Court Registry returnable 08 May 2013. However, on 08 May 2013, the ruling was further adjourned to 11 May 2013.
12.	On 11 May 2013, “a second ruling” was delivered. He says that his solicitor “overlooked this matter to file the necessary document” as a result of “the confusion they had in regards to the two rulings”.
13.	He deposes that he has genuine grounds of appeal. He asserts that the notice of intention to appeal was filed on time but was refused by the Magistrates Court Registry due to the pendency of the second ruling.
14.	Both the earlier and the latter ruling at issue in this case were written by the Learned Magistrate Qica. The findings and conclusions in both rulings were the same. The only difference are as follows:
(i)	whereas in the first ruling, the Magistrate had awarded interest on the judgement sum at 10% p.a., he had reduced this to 5% in the second ruling.
(ii)	the first thirteen paragraphs are the same verbatim. These are paragraphs which deal with the evidence taken at trial. 
(iii)	however, there are some slight differences from paragraphs 14 right through to the remainder of the ruling. These are the paragraphs wherein the Learned Magistrate was attempting a more in depth analysis and was expanding on his earlier ruling in terms of his evaluation of the evidence and fact.

15.	It is hard to accept the applicant’s explanation. In spite of the first ruling, his solicitor was clearly anticipating the second ruling. He should have been on guard then because his point of reference in terms of time calculation should have been the date of the second ruling.
16.	Accordingly - it is hard to imagine how the fact of the earlier ruling could have led to his not filing the requisite appeal documents on time. 
17.	I would have been prepared to give the applicant the benefit of the doubt on account of this factor alone. However, I would not do the same on account of the other factors. 
Whether there is an Arguable Case on Appeal   & Chances of  Succeeding If Time Extended
18.	The issue in terms of the plaintiff’s claim at the Magistrates Court was narrowly couched. It was based on the allegation that the defendant had wrongfully impounded a vehicle registration number Ea855 for eighty days and the claim was for special and general damages allegedly suffered as a result. 
19.	The defendant had pleaded that he had lent money to the plaintiff to buy the car. The plaintiff was to have paid him back in full with interest.
20.	The learned Magistrate had recorded in his ruling that in cross-examination, the plaintiff could not establish that he had borrowed money from his wife’s account. Nor was there any conclusive evidence that he had borrowed money from the defendant.
21.	The evidence given for the defendant included two from police officers namely one Sgt Jaynendra Singh and Constable Jitendra Prasad who both gave evidence that the plaintiff had come to see them at the station to lodge a complaint about the defendant impounding the vehicle. The dispute was over the payment of the vehicle. 
22.	The latter had said in Court that the plaintiff had told him that the plaintiff had told him that he and the defendant had a mutual agreement and that he (plaintiff) had borrowed money from the defendant to buy the van. Both said they did not see any written agreement.
23.	I have perused the proposed grounds of appeal. In my view, they are only to do with the credibility of witnesses. Although the applicant’s counsel has applied some drafting skill to make it appear so, there is no issue raised about how the Learned Magistrate has applied or misapplied the law.
24.	In Langsam v Beachcroft LLP [2012] EWCA Civ 1230, the Court said:
It is well established that, where a finding turns on the judge’s assessment of the credibility of a witness, an appellate court will take into account that the judge had the advantage of seeing the witnesses give their oral evidence, which is not available to the appellate court. It is, therefore, rare for an appellate court to overturn a judge’s finding as to a person’s credibility. Likewise, where any finding involves an evaluation of facts, an appellate court must take into account that the judge has reached a multi-factorial judgment, which takes into account his assessment of many factors. The correctness of the evaluation is not undermined, for instance, by challenging the weight the judge has given to elements in the evaluation unless it is shown that the judge was clearly wrong and reached a conclusion which on the evidence he was not entitled to reach. In other cases, where the finding turns on matters on which the appellate court is in the same position as the judge, the appellate court must in general make up its own mind as to the correctness of the judge’s finding (see Datec Electronic Holdings v United Parcels Service [2007] UKHL 23, [2007] 4 All ER 765, [2007] 1 WLR 1325 at 46 per Lord Mance).

25.	I observe that, at the trial before the learned Magistrate, the applicant only had two witnesses. He himself was the first of those two witnesses. The other one was his own son.
26.	The defendant on the other hand had called five witnesses, including himself and the two police officers named above. 
27.	The defendant’s third witness was one Rajendra Prasad, the motor mechanic from whom the car in question was bought by the plaintiff. Prasad confirmed that it was the defendant who gave him the money from which the vehicle was purchased.
28.	I observe that according to the evidence of the plaintiff’s own son, the defendant had impounded the vehicle when the plaintiff’s son had taken the vehicle to the defendant’s compound.
29.	If one were to read between the lines of the Magistrates reasoning, he appeared to favour that the defendant, by virtue of his having financed the purchase of the vehicle in question, and considering the fact that the balance of the money owed to him was outstanding, had an equitable interest in the vehicle which gave him a right to impound it when it was brought to his home. 
Degree of Prejudice to Respondent if Application is Granted	

30.	This court is ill placed to re-evaluate the findings of fact by the Learned Magistrate or to reassess the credibility of the witnesses. On the balance of prejudice, I am of the view that the defendant will be more greatly prejudiced of the two.

CONCLUSION

31.	In the final, I dismiss the application. Costs to the respondent which I summarily assess at $500-00 (five hundred dollars only).

…………………………..
Anare Tuilevuka
JUDGE
11 May 2016