Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

Nand v Jans Rental Cars (Fiji) Ltd [2014] FJMC 148; Civil Action94.2013 (21 October 2014)

IN THE MAGISTRATE’S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION

Civil Action No: 94 of 2013

Prema Nand
Plaintiff

v

Jans Rental Cars (Fiji) Limited
First Defendant

Roger Lutz
Second Defendant

Appearances and Representations
For Plaintiff: Mr V Prasad (VP Lawyers)
For First Defendant : Mr M. Anthony (Neel Shivam Lawyers)
For Second Defendant : Mr K. Jamnadas (Jamnadas & Associates)

Ruling

Introduction

In this matter the Plaintiff had filed a Writ of Summons seeking judgment in the sum of $41,000.00 together with post judgment interest as provided for under the Magistrates Court Act, costs incidental to the proceedings, such further and other relief as the Court deems just and expedient (all to be within the jurisdiction of the Court).

Following a hearing on 25th June 2014 this Court ordered that the Defendants pay the Plaintiff as follows:

(a) A sum of $24,656.00 for repair and restoration cost of the vehicle.
(b) A sum of $750.00 for loss of income.
(c) A sum of $500.00 for miscellaneous expenses.
(d) A sum of $250.00 for towing charges.
(e) A sum of $2000.00 for storage charges.
(f) A sum of $1000.00 being legal costs.
(g) The total sum being $29156.00.
(h) Interest at a rate of 6.5% from date of judgment.
(i) The total sum to be paid by the Defendant is limited to the jurisdiction of this Court.

The First Defendant on 7th July 2014 filed a Notice of Motion with an affidavit of Nilesh Sharma seeking:

1. an order that the time within which a notice of intention to appeal and grounds for appeal are to be filed be extended and the 1st Defendant do have leave and be at liberty to lodge an appeal against the decision of this Court.
   
2. An order that the execution of the judgment of 25th June 2014 and all proceedings thereunder be stayed until the determination of this application.
   
3. Costs be in cause.
   
4. Such further orders as the Court deems just and expedient.
   

The First Defendant, The applicant in the motion wanted to file a notice of intn to appeal&#1al on 4th July 201e Civil Cour Court Officer referred the file to me and I informed her to "refuse to accept. Need to file leave to appeal out of time". The reason for refuso acche notice of inte intention to appeal was because it was duas due to be filed on 2nd July 2014.

The matter was heard by way of written submissions. This Court has noted the submissions that are in file.

The Law

Order 37, Rule 1 of the Magistrates Court Rules (Cap 14) is the pertinent section for notf intention to appeal&#1al . It s that: "Every appellapellant shall within seven days after the day on which the decision appealed against was given, give e resnt and to the court by which such decision was gias given (hereinafter in this Order calledalled "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."

Analysis

This Court on 25th June 2014 delivered its judgment. The First Defendant wanted to file the notice of intention to appeal on 4th July 2014. The First Defendants submission is that the counsel for the First defendant miscalculated the time period. The First Defendant does not dispute the Courts calculation of time and that it is out of time with the filing of the notice of intention to appeal.

The extension of time to file notice of intention to file appeal has been extensively dealt with 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 Intenti Appeal&#1al and Grounds of Appere both both filed in the Magistrate's Court on 4 April 2003.

For ease of reference this Court would like to quote what Justice Pathik stated in the Crest Chicken case –

"It is Or 37 Rule I of I of the Magistrate's Courts Rules which sets out the time within which Notice of Intention to Appeal shall be given. The Order reads 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:

Provided that such notice may be given verbally to the court in the presence of the opposite party immediately after judgment is pronounced. (Substituted by Rules 20th November, 1946, and amended by Rules 6th November, 1950.)

This is a mandatory Rule and it does not give the Magistrate power to extend time. Even if he had, no application was made by the appellant for extension for it was already late in filing or giving Notice of Intention to appeal within the seven days after judgment was pronounced.

Had the legislature intended it could have specifically provided for application to extend time. It did not do so in Or. 37 R.1 but Or. 37 R.4 which provides as follows, gave the Magistrate's Court power to extend time to file grounds of appeal.

On the appeal failing to file the grounds of appeal within the prescribed time, he shall be deemed to have abandoned the appeal, unless the court below or the appellate court shall see fit to extend the time.

On Grounds of Appeal under Or 37 R3(1) it is stated: 3. - (1) The appellant shall within one month from the date of the decision appealed from, including the day of such date, file in the court below the grounds of his appeal, and shall cause a copy of such grounds of appeal to be served on the respondent.

It is accepted by the appellant that the Intention to Appeal was filed out of time but the grounds of appeal were within time.

Order 37 r1 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.

In Taylor v Waikohu County Council [1922] N.Z.L.R it was held that the 'formalities required by the statute must be complied with'. There Reed J said that 'the objections to the appeal are well founded, and that the appeal should be dismissed'.

In Crowe v McWatt (Vol.XXXIII – Invercargill N.Z. 1913) a similar issue was raised, namely, whether the appellant has complied with the provisions of s303 of the Justices of the Peace Act (similar to Or 37 r1 supra). There notice was given a day after the 7 days allowed. The Court (Williams J) held that:

the 'provisions of s303 are mandatory, unless compliance therewith is excused by reason of the default of the respondent, or unless the appellant after doing all in his power to comply with the section, is prevented from so doing by the absence or conduct of the Magistrate'.

Williams J said that 'this Court has no general jurisdiction to dispense with the provisions of the statute'. The Court said that 'the matter is one involving an important principle, and I am afraid that I have no jurisdiction'.

When the application was made by the appellant before the Magistrate for stay of judgment the respondent opposed it stating that the Notice of Intention to appeal was out of time. Despite that the learned Magistrate accepted the Notice and Grounds of Appeal and allowed a conditional stay.

In the light of the statutory provisions particularly Or 37, since no extension of time has been applied for or granted to the giving of Notice of Appeal or the Grounds of Appeal, the steps taken by the appellant to obtain the stay are irregular and cannot be cured. Hence, it was ultra vires the Magistrate to hear the application for stay.

In Or. XXXVII r. 1 there is no provision for extension of time to give Notice of Intention to Appeal, although there is power to extend to file Grounds of Appeal under Or .37 r. 4."

In Ratnam v Cumarasamy 1964 3 All E.R. 933 at 934, the 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".

For the above-mentioned rationale and observations this Court notes that it has no power to extend the time for filing of intention to appeal. It is explicit that the Magistrate's Court which is a creature of the statute relies on the law and the rules. It cannot work outside the laws and the rules that have been formulated to guide its function.

This Court therefore orders as follows:

a) The notice of intention to appeal is out of.

b) The Cohe Court has no jurisdiction to extend the time.

c) Notice of motion seeking the listed orders dated 11ly 2014 is hereby dismissed.

e) Cost of this application is summarily assessed as $2as $200.00 which is to be paid by the First Defendant to each other party within 7 days.

Chaitanya Lakshman
Resident Magistrate
21st October 2014