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Kooline Refrigeration Lautoka Ltd v Air Terminal Services (Fiji) Ltd [2012] FJMC 99; Nadi Civil Action 05.2010 (22 May 2012)

IN THE RESIDENT MAGISTRATE'S COURT
(WESTERN DIVISION) AT NADI

Nadi Civil Action No. 05 Of 2010

BETWEEN:

KOOLINE REFRIGERATION LAUTOKA LMITED
having its registered office at Level 8 Dominion House, Suva.
PLAINTIFF

AND:

AIR TERMINAL SERVICES (FIJI) LIMITED
having its registered office at Cruickshank Road, Private
Mail Bag NOP0356, Nadi Airport.
DEFENDANT

Messrs Lowing & Associates for Plaintiff
Messrs Babu Singh & Associates for Defendant
Date of Ruling: 22 May 2012

RULING

Application

1. This is an application by the Defendant for extension of time and stay of judgment.
   
2. A judgment was entered against the Defendant on 14 June 2011 in the presence of both counsels.
   
3. On 11 August 2011 the Defendant made application by way of notice of motion along with an Affidavit in support, seeking the courts leave to extent the time of filing the notice of intention to appeal and to stay the execution of the judgment delivered by me.
   

The Law

4. Appeals of decisions of the Magistrate Court are regulated by section 36 of the Magistrates Court Act, Cap 14 (hereinafter sometimes may be referred to as "the Act") and by Order XXXVII Rule 1 of the Magistrates' Court Rules (MCR).
   
5. Section 36 of the Act provides as follows:
   

"Subject to the provisions of this Act, an appeal shall lie to the Supreme Court (now High Court) from a resident magistrate in the following cases:-

(a) From all final judgments and decisions; and
(b) From all interlocutory orders and decisions in the course of any suit or matter before a magistrate court.

(2) An appeal shall lie to the Supreme Court (now High Court) from all judgments, decisions or orders of a resident magistrate sitting in its appellate jurisdiction under section 40."

6. Order 37 Rule 1of MCR provides as follows:
   
   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: [Emphasis is added].
      

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

7. In the case of United Truckers v. Makare Investments Ltd, Miscellaneous Case No. HMB 44 of 2010 it was held by Justice Pradeep Hettiarachchi that if a Notice of Intention to Appeal is not filed within 7 days time, then the Magistrate has no jurisdiction to enlarge this time.
   

Determination

8. The judgment the Defendant intent to appeal against was given on 14 June 2011. The Defendant filed his application for leave to extent the time for filing a Notice of Intention to Appeal on 11 August 2011. The Defendant should have filed such notice on or before 21 June 2011 hence the Defendant is out of time by one month and 26 days.
   
9. According to O.37 r.1 of the Magistrate Court Rules the Appellant shall file a Notice of Intention to Appeal within 7 days from the date the decision appealed against was given. The proviso of the said rule further provides that such notice may be given verbally to the court in the presence of the opposite party immediately after judgment is pronounced.
   
10. The Defendant had two possible opportunities to comply with the O.37 r.1. Firstly they had opportunity to give Notice of Intention to Appeal on the day the decision was pronounced. Secondly they could have filed their Notice of Intention to Appeal within 7 days after the day on which decision appealed against was given. The Defendant failed to exercise any of these opportunities.
    
11. Order 37 rule 1 of the Magistrates Court Rule is mandatory hence non compliance with the rule is fatal.
    
12. In the Affidavit of Bob Wilson Tulakepa in Support of Notice of Motion stated that the delay for filing the intention to appeal was due mainly for the management to convene the meeting at the end of July 2011 to make a decision and approve the next cause of action available to the company [paragraph 7 of the Affidavit]. In the Affidavit in Support the Defendant further stated that they had weekly meeting every month. But they waited till end of July 2011 to discuss this issue, whether to appeal against the judgment pronounced on 14 June 2011.
    
13. The Defendant's explanation of the delay in filing a Notice of Intention to appeal, to my mind, is not a satisfactory explanation.
    
14. In any event Magistrate Court does not have jurisdiction to extend the time limit set by Order 37 rule 1 of the Magistrates Court Rules as per decision of United Truckers v. Makare Investments Ltd (supra).
    
15. In the circumstances, I find no merit in this application and this application should be dismissed.
    

Order

16. I dismiss the Defendant's motion seeking extension of time to file Notice of Intention to Appeal with the costs which I summarily fixed at $300.00.
    

M H Mohamed Ajmeer
Resident Magistrate
At Nadi
22.05.2012