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Savona v Seruvatu [2025] FJHC 75; Civil Appeal 21 of 2024 (27 February 2025)

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

Civil Appeal No. 21 of 2024

Magistrates Court Case No. 1 of 23

SCT Claim No. 508 of 2022

BETWEEN: PETER SAVONA

Applicant

AND: SERUPEPELI SERUVATU

Respondent

Representation:

Applicant: Present - In Person

Respondent: Not Present

Date of Hearing: 18^th February 2025

Ruling

1. Introduction

[1] The Applicant has filed a notice of motion for enlargement of time and that the execution of the Ruling dated 17^th January 2024 be stayed pending the determination of the appeal out of time, that leave be granted to file a notice of appeal and grounds of appeal out of time and any other orders this court deems just and proper.

[2] The motion is accompanied by an affidavit of the Applicant. The Respondent was served the motion. He appeared in Court on 11^th December 2024. He sought time to seek legal advice. He wished to represent himself. I gave him 2 weeks to get legal advice and file response. He has not appeared in Court after that date. Neither has he filed a response.

B. History of the Matter

[3] The matter commenced in the Small Claims Tribunal (SCT) in February 2022. Where the Applicant was the Respondent and the current Respondent was the Claimant. On 6^th April 2022, the Tribunal ordered in favour of the Claimant.

[4] On 31^st August 2023 a motion was filed on behalf of the Applicant in the Magistrates’ Court seeking leave to appeal the SCT Ruling out of time and stay the JDS and other proceedings. On 17^th January 2024 the Learned Magistrate delivered a Ruling and dismissed the application and ordered no costs.

100. Determination

[5] In Katafono v. Brown unreported Civil Action No. HBC 135 of 2014 and Jans Rental Cars (Fiji) Limited v. Nand and Lutz, unreported Civil Action No. HBM 147 of 2014, His Lordship Justice Kamal Kumar (as he then was) looked at the issues of leave to appeal out of time. Justice Kumar opined that under Order 3 Rule 9 of the Magistrates Court Rules, the High Court and the Magistrates’ Court has jurisdiction and discretion to extend time for filing notice of intention to appeal and grounds of appeal.

[6] Nand v. Famous Pacific Shopping (NZ) Limited (2010) FJHC 619; Civil Appeal No. 6 of 2009 and Loks Crane and Contractors Limited –v- Clutch Systems (Fiji) Limited unreported Civil Appeal 31 of 1999 Lautoka delivered 17 July 2002 per Gates J (as he then was)) set out the four issues the Court must deal with when it is exercising its discretion in dealing with the issue of enlargement or leave to appeal out of time. These are:
(a) the length of the delay,

(b) the reasons for the delay,
(c) the merits of the proposed defence, and
(d) any prejudice likely to result to the Respondent.

[7] The length of the delay is about 11 months. The reasons for the delay is mainly the Applicant relying on the advice he received from the court personnel. He has been self-represented. The time lines have not been adhered to. No emphasis has been placed on the timelines and as a result the timelines were not followed. I have perused the Applicant’s grounds of appeal. Without dwelling deeper into it I find that the grounds have merit. I find that there will be no prejudice to the Respondent if the Applicant is granted leave and time for appeal is extended. The matter is stayed pending the hearing of the appeal. I give the Applicant 7 days from today to file the grounds of appeal. The Applicant is to serve the Respondent the grounds of appeal. There will be no orders as to costs.

D. I Order as follows:

(a) That the time for appeal be extended.

(b) The Applicant is given 7 days from today to file the Grounds of appeal. He is to serve the Respondent the grounds of appeal.

(c) The matter is stayed pending the determination of the appeal.

(d) There will be no orders as to costs.

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Chaitanya S.C.A Lakshman

Puisne Judge

27^th February 2025