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Kumar v Narayan [2011] FJMC 106; Civil Action 82 of 2009 (27 September 2011)

IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Action No. 82 of 2009

MUKESH KUMAR
Plaintiff

v

SHIU KIRAN NARAYAN
Defendant

Mr. Sunil Kumar for the Plaintiff
Mr. Raman Singh for the Defendant

Ruling on refusal of notice of intention to appeal

[1] The Plaintiff filed this action seeking vacant possession and damages arising out of the Defendants unlawful possession of the land. He claims vacant possession and seeks $12,990.03 as damages.

[2] This court granted judgment in favour of the Plaintiff against the defendant on 12th July 2011.

[3] The Defendant filed notice of intention to appeal on 20th July 2011. The civil court clerk referred the case record to me on that day saying "the defendant is filing notice of intention to appeal this morning and appeal period has lapsed by one day. The notice of intention to appeal should have been filed yesterday. The defendant is requesting if they can file their application today. Respectfully submits your worship's perusal and directive".

[4]The court then made directive under order XXXVII Rule 1 of the Magistrate Court Act Cap 14 notice of intention to appeal should have been filed within 7 days of delivering the judgment, thus notice must be refused. The court clerk acted on that direction accordingly.

[5] On 28th July 2010 (As sealed, but dated 21 July 2011) the defendant filed notice of motion and order of extension of time to file notice of intention to appeal. It was supported by affidavit of Ms. Nalini Nandani Prasad. On that the defendant says the magistrate erred in law in refusing notice of intention of appeal because he should exclude the day the event happens or the act or thing is done. In plain text, the contention is that date of delivery of judgment to be excluded under section 51 of Chapter 7, Laws of Fiji. Thus their notice of intention to appeal is within the time frame and magistrate erred in law. Alternatively, they sought extension of time to file Notice of intention to appeal.

[6] I now deal with the law. ORDER XXXVII.-CIVIL APPEALS of Magistrates Court Act (Cap 14) (Order 37: Rule 1) is the pertinent section for notice of Intention to Appeal. It says;

"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."

[7] The case was called on 12th July 2011 for Judgment. Judgment was delivered on the same date and notice of appeal was filed on 20th July 2011. It was refused by the court and later notice of motion for cancellation of this order was filed and served to the Plaintiff. This matter was argued on 23rd August 2011. The main contention of the defendant was that judgment date to be excluded and therefore, notice well within the time. This was opposed by the plaintiff and further said that Magistrate has no powers to extend the filing time in line with the Crest Chicken Case.

[8] Law on Computation of time is given in section 51 of the Interpretation Act [Cap 7]. It says;

"51. In computing time for the purpose of any written law, unless a contrary intention appears-

(a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;

(b) if the last day of the period is a Saturday, Sunday or a public holiday (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;

(c) where any act or proceeding is directed or allowed to be done or taken on a certain day, then, if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;

(d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time."

[9] Court admits that the delivery of judgment is date to be excluded. That means 12th should be excluded. I now compute the time for clarity. 13th Wednesday(Day 1), 14th Thursday(Day 2), 15th Friday(Day 3), 16th Saturday(Day 4), 17th Sunday(Day 5), 18th Monday(Day 6), 19th Tuesday( Day 7). 19th July 2011 is the 7th day within the delivery of the judgment. Under Section 51(b) of said Interpretation Act says "if the last day of the period is a Saturday, Sunday or a public holiday the period shall include the next following day, not being an excluded day". This section is not applicable to this court as the last date was Tuesday (19th) is not a Saturday, Sunday or a Public Holiday. When computing the time, I have already excluded delivery date; that is 12th July. Therefore, notice of intention of appeal was filed on 20th July morning and it is clearly out of time.

[10] Alternatively, Mr. Singh asked extension of time. He did not support this request. The learned Counsel for the Plaintiff opposed for this application relying on Crest Chicken Case. It is good law indeed.

[11] I now deal with this issue. The extension of time to file notice of intention to file appeal has been extensively dealt in Crest Chicken Ltd v Central Enterprises Ltd [2005] FJHC 87; HBA0013j.2003s (19 April 2005) by his Lordship Justice Devendra Pathik. In that case the judgment was delivered by the Magistrate on 17 March 2003 against both the defendants in the total sum of $15,000.00 ($7500.00 each). The Notice of Intention to Appeal and Grounds of Appeal were both filed in the Magistrate's Court on 4 April 2003.
This meant that the first defendant's appeal was filed approximately a week and a half out of time. These were accepted by the Magistrate and he allowed a stay of execution of the said judgment on an application made by the first defendant on the said 4 April 2003. The stay was granted. The concerning several English and New Zealand's authorities that the court held Order 37: Rule 1 is a mandatory provision and it does not give the Magistrate power to extend time. His Lordship differentiated the Oder 37: Rule 3(1) and went on saying;

"Order 37 Rule 1 of the Magistrate's Courts Rules is abundantly clear that 'every appellant shall within 7 days after the day on which the decision was given' give notice in writing of intention to appeal."

[12] This is a formality to be strictly observed by the Appellant. In Taylor v Waikohu County Council [1922] N.Z.L.R, Reed J held that the 'formalities required by the statute must be complied with'.

[13] In Ratnam v Cumarasamy 1964 3 All E.R. 933 at 934, court held that:
"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation" (underlining is mine)

[14] Rules may be not observed as prescribed in a matter of urgency. This is because that law does not force to do impossible things. The legal maxim for this is "impotentia excusat legem- Impossibility is an excuse for non compliance with an absolute provision". In this issue I cannot see any difficulty to file the notice of intention to appeal within time. As I said earlier computation of time this court is correct. Even though the appellant good cause to extension of time that is matter for Appeal Court and not for trial court as Magistrate has no power to extend the time whatsoever.

[15] It should be noted that this is a rule to be observed by every appellant. No one can claim that they do not know the rule. The legal maxim is "Ignorance of Law excuses nobody- Ignorantia Legis Neminem Excusat". Though this is a one day delay, it is fatal to the case and my hands are tightened.

[26] I therefore make following orders;

1. The notice of intention to appeal is out of time.
2. The Court has no jurisdiction to extend the time.

100. Notice of motion for extension of time dated 21-July 2011 is hereby dismissed.

4. As there is no appeal, the plaintiff has liberty to execute the judgment.
5. Cost of this application is summarily assed and fixed for $100.
   

Orders accordingly.

On 27th September 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate