IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Appeal No 01/ 09

BETWEEN

MINISTRY OF HEALTH
APPELANT

AND

SEMESA NACANIELI
RESPONDENT

RULING

1.	This is an appeal made out of time by the Attorney General on behalf of the Ministry of Health against an order made by the Small Claim Tribunal on the 16th November 2005.

2.	Semesa Nacanieli, the original Claimant of the Small Claim Tribunal case has lodged his claim on the 13th October 2005 at the Small Claim Tribunal Lautoka for the recovery of 1 441.98 dollars from the Ministry of Health original 1st Respondent in that case.

3.	The original respondents according to Form I of the Small Claim Tribunal appears to be;

a)	Ministry of Health, Ra Sub Division Hospital

b)	Attorney General of Fiji.

4.	However it appears in the Notice of Hearing issued by the Registrar of the Small Claim Tribunal that the respondent has been named as "Ministry of Health and Attorney General".

5.	It should be noted that although the claimant has named the Attorney General as the second respondent in his original claim, according to the Affidavit of Service only the Sub Divisional Medical Officer of the Ra District Hospital has been noticed. Further it appears that a notice has not been served on the Attorney general regarding the claimant's application.

6.	Upon the perusal of the report of the Registrar of the Small Claim Tribunal dated 16th November 2005, it appears that although the claimant had appeared, the respondents have not appeared on the 16th November 2005 at the Small Claim Tribunal.

7.	However the Registrar has recorded in that report that the service is in order. This seems to be a clear irregularity as the second respondent has not been given notice of hearing.

8.	In the absence of the both respondents the Referee has taken up the matter and an order has been made on the same day based on the claimant's submission of facts.

9.	Accordingly the Small Claim Tribunal has ordered the Ministry of Health to pay 1 441.98 dollars before the 30th November 2005.

10.	On the 19th February 2009 the Ministry of Health filed a notice of motion regarding an application for leave to appeal out of time against the Order made by the Small Claim Tribunal on the 16th November 2005.

11.	The Appellant tendered an affidavit by one Saras Lal, Acting Manager Finance and Divisional Medical Officer Wester Office, Lautoka in support of the motion filed on the 19th February 2009.

12.	It has been stated in that affidavit that one Dr. S. Dasi, the Sub Divisional Medical Officer, Ra Hospital has failed to attend the Small Tribunal Case for hearing on the 16th November 2005 due to heavy work commitment. To support this position a letter dated 03rd March 2009 written by Dr. Sravaniya Dasi is filed and the letter says that; 

"I have notified the court clerk in Rakiraki that I could not attend to it as I had to attend to patients in the emergency ward the same day and due to work commitments could not attend"

13.	Although with reluctance, I am compelled to note that this conduct of the officer amounts to nothing less than sheer negligence and it cannot be considered as a reasonable excuse to grant leave to appeal out of time.

14.	When a notice from a Court of Law or a Tribunal is served on a person, even regarding a patently frivolous claim, the law requires the person so served with notice to appear before the Court or the tribunal. At least in this case if the relevant officer was not available I do not see any reason as to why proper arrangements could not have been made as a responsible public servant.

15.	Be that as it may, on the 22nd April 2009 a Counsel from the Attorney General's office has appeared on behalf of the Ministry of Health. Subsequently on the 23rd of December 2009 this case was fixed for the hearing regarding the leave to appeal out of time. On the 11th January 2010 the grounds of appeal as well were filed by the Attorney General on behalf of the Ministry of Health.

16.	The Respondent has filed an Affidavit in response saying that this application for leave to appeal out of time is merely a delaying tactic and the application should be dismissed with costs.

17.	Apparently in an application of this nature the Court has to primarily consider whether the Appellant should be granted leave to appeal out of time and secondly the court has to consider the grounds of appeal. 

18.	As it was stated before the original excuse put forward by the Appellant regarding the non appearance at the Small Claim Tribunal has to be treated as a highly untenable ground.

19.	However at the hearing the Counsel who appeared on behalf of the Ministry of Health highlighted two issues which need to be analysed in this order. First issue is the failure to give notice to the Attorney General as required under the Crown Proceedings Act. The second issue is the reasons for delay in lodging the appeal.

20.	Firstly I prefer to deal with the question of delay in making this appeal. The Appellant in there written submissions has mentioned a decided authority regarding the law on appeal out of time. 

21.	Accordingly in Ali V. Ilitia Boila and Chirk Yam, Fiji Development Bank and Merchant Bank of Fiji Civil Appeal No. ABU 0030 of 2002, it has been stated that;

"The power to extend the time for appeal is discretionary and has to be exercised judicially having regard to established principles…. The onus is on the Appellants to satisfy the Court, that in the circumstances, justice of the case requires that they be given the opportunity to attack the Order… the following factors are normally taken into account in deciding whether to grant an extension of time;

1.	The length of delay
2.	The reasons for delay
3.	The chances of the appeal succeeding if time is extended.
4.	Prejudice to the respondent". 

22.	It should be noted that the length of delay is too significant in this case. The Order of the Small Claim Tribunal has been made on the 16th November 2005. The Appellant has come to court on the 19th February 2009 i.e. after about three years and three months. It appears that one major cause for the delay has been the lackadaisical approach of the officer who had the knowledge about the Small Claim Tribunal case. Yet it should not be forgotten that the Court can not allow the interests of the State to be jeopardized due to a negligent conduct of a single public servant. Therefore I decide that although the length of delay has apparently prejudiced the rights of the Respondent the circumstances of this case do not warrant this court to hold the length of delay to be a material bar to this application. 

23.	Secondly the court has to consider the reasons for the delay. Apart from the failure on the part of the relevant officer to take proper steps, the fact that the Attorney General was not given notice has also been a contributory factor for the delay. 

24.	According to the Rule no 5 of the Small Claim tribunal Rules 1994, Magistrate's Court's rules apply to the service of process in the tribunal. Rule no 5 provides that;

"These rules about service of process in a small claim tribunal are to be generally the same as in a Magistrate's Court; and accordingly the provisions of Order VII of the magistrate's Court rules apply to the service of process in a Small Claim Tribunal" 

25.	According to Section 12(2) of the Crown Proceeding Act civil proceedings against the Crown shall be instituted against the Attorney General. Section 13 of the Crown proceedings Act provides that;

"All documents required to be served on the Crown for the purpose of or in connection with any civil proceedings by or against the Crown shall be served on the Attorney General."

26.	Thus it is clear that there would not have been a delay had the Attorney General been duly served with notice of hearing. However it should be noted that the failure to service notice on the Attorney general cannot be solely considered as a fault of the Respondent.

27.	The small Claim Tribunal by over sight or by mistake of fact has proceeded without serving notice on the Attorney General who was the 2nd Respondent in that case. It is manifestly an omission which amounts to irregularity of the proceedings. 

28.	Another main issue that has to be addressed by this court is the chances of succeeding the appeal if the time is extended. According to Section 33(1)(a) of the Small Claim Tribunal Decree, a party can appeal against an order made by the tribunal if the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings.

29.	It was earlier discussed that although the Attorney General had been named as a party in the original application, no notices were served on the 2nd respondent namely the Attorney General. Thus it is clear that the Referee has conducted the proceedings in a manner unfair to the Appellant and it has prejudicially affected the result of the proceedings. In this back drop it is very much evident that the Appellant has a very good ground to succeed in the appeal.

30.	The other aspect the Court has to consider is the prejudice to the respondent if time is extended for the appeal. It should be noted that the Court is mindful of the fact that the original Claimant (the Respondent) has been waiting nearly for five years to reap the benefit of the Order given in his favour.

31.	The Respondent was unrepresented in this case and the Court cannot reasonably expect a lay man to be conversant with technicalities in a case of this nature. However the crux of the matter in this appeal is not whether the claimant (the Respondent) can rightfully claim the specified amount. That aspect would have to be tried again if this Court orders a re hearing. But the issue is if this court allows the leave to appeal out of time, whether it could prejudice the respondent.

32.	Although it appears that the long delay has affected the rights of the respondent at this juncture the court has to strike a balance between the prejudice caused to the State and to the Respondent as far as the out come of this case is concerned. Wittingly or unwittingly the Small Claims Tribunal has breached the fundamental principal of audi alteram partem at the tribunal proceedings. It is doubtful in absence of representations by the State, whether the Tribunal has assessed the rightful entitlement of the claim of the claimant. Thus I believe that the potential prejudice to the Appellant is far greater than the prejudice caused to the Respondent if this application is not allowed. 

33.	In these circumstances I decide that the Appellant should be granted leave to appeal out of time.

34.	As it was discussed before this case has taken unreasonably a long time. It appears that there should be finality in any matter within the shortest possible time. Also it is the paramount duty of the Court to avoid duplicity of matters. Any more delay in this matter would not be beneficial to either of the parties to this suit. 

35.	In this case both parties have put forward their submissions regarding the appeal out of time. I have considered all the material submitted by both parties.

36.	I have already discussed a fundamental irregularity which runs in to the core of this case. The failure to notice the Attorney General undoubtedly amounts to an unfair manner of conducting proceedings at the Small Claim Tribunal. 

37.	Hence I do not see any reason to look in to the matter all over again. The facts are very clear and the findings already made by this Court requires a re hearing of the claim put forward by the Claimant, with due notice to both respondents in that case.

38.	Accordingly I quash the order of the Small Claim Tribunal dated 16th November 2005.

39.	I order a re hearing of the claim in the Small Claim Tribunal with proper notice to parties. However since this case has taken a long time I further order to conclude the re hearing within the shortest possible time.

40.	Further I order the Appellant to pay 300 dollars as cost to the Respondent.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
03.03.2010