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Prasad v Prasad [2012] FJMC 60; Civil Appeal 12.2011 (14 February 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil appeal No 12/11

BETWEEN

UDAY PRASAD
Appellant

AND

AMRICA PRASAD
Respondent

RULING

1. The Appellant filed a motion on the 25th May 2011 along with a supporting affidavit seeking leave to appeal out of time against an order dated 21st February 2011 made by the Small Claim Tribunal.
   
2. The Appellant informs Court that there was a hearing in respect of a claim filed by him in the Small Claim Tribunal on the 18th February 2011 and he left the country pending the ruling which was set for 21st February 2011. The Appellant has instructed his son to obtain the ruling on the 21st February on his behalf. The Appellant states that;
   

"On my arrival back to Fiji I decided to engage a solicitor to appeal against the ruling of the Tribunal because I feel the Tribunal was unfair in summarily dismissing my claim against the respondent by its order made on the 21st February 2011."

3. The Respondent filed an affidavit opposing this application. Later both parties were requested to file written submissions. However only the Respondent filed written submissions.
   
4. Be that as it may, now I will proceed to consider the application by the Appellant. At the very out set it should be stated that in an application of this nature, a party who could not come within the prescribed time period should primarily satisfy the Court that the delay was due to a reasonable cause and it was unavoidable. Section 33(3) states that;
   

"an appeal shall be brought by a party by the filing of a notice of appeal in Form 6 of the First Schedule to this Decree together with the fee prescribed in the Second Schedule in the High Court or in the Magistrate's Court (as the case may be) within 14 days of the Tribunal's order".

5. I have considered the affidavit filed by the Appellant. It is very clear that the Appellant was very well aware of the date on which the ruling was to be delivered regarding his claim at the Small Claim Tribunal. Further he had even arranged his son to obtain the ruling on the 21st February 2011. However the Appellant does not explain as to why he did not take steps to file the notice of appeal if he was aggrieved by the said order of the Tribunal.
   
6. Secondly, the Appellant does not explain as to why he had to go out of the country without taking steps regarding the ruling of the Tribunal. If a party had to leave the country due to an unavoidable reason such as for medical treatments, the Court could have considered it as an excusable ground to grant this application. But in this case the Appellant did not mention any urgency of going out of the country pending the ruling of the Trubunal.
   
7. The law has prescribed time limits for a reason and the Court has the discretion to extend those limits only for just and fair reasons. But in this case I am not satisfied regarding the explanation given by the Appellant about the delay. Further it does not appear that the Appellant has acted in a timely and a diligent manner. The Appellant failed to satisfy this Court as to why this application for leave to appeal out of time should be granted.
   
8. In the circumstances I decide to dismiss this motion for leave to appeal out of time. Further I order the Appellant to pay 100 dollars cost to the Respondent.
   

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

14.02.2012