MAGISTRATES’ COURT
NAUSORI
CIVIL JURISDICTION

Civil Action No. 6 (B) of 2015

BETWEEN :

SANJAY SINGH VERMA of Vusiya Road, Raralevu, Nausori, Fiji.

PLAINTIFF
[Respondent in Motion]

AND :

RAJESHWAR SINGH t/a SINGHS VIDEO LIBRARY of Vusiya Road, Raralevu, Nausori, Fiji.

DEFENDANT
[Applicant in Motion]

COUNSELS : Mr K Singh for the Plaintiff/Respondent 
                       Ms N. Raikaci for the Defendant/Applicant

RULING

(Application for Leave to Extend Time To
File Notice of Intention To Appeal and Grounds of Appeal)

Introduction

On 23rd July 2015, the Applicant filed a notice of motion with an affidavit of the Applicant seeking following Orders:

"1.	THAT the Respondent be granted leave to appeal the decision of the Magistrate out of time.

2.	THAT execution of Writ of Fieri Facias issued on the 22nd of June 2015 be stayed pending the determination of the application.

3. 	THAT costs of the application be costs in the cause."

The Plaintiff/Respondent in motion had filed a writ of summons in Court on 28th January 2015. On 1st call on 18th February 2015 both parties appeared in Court. The Defendant waived right to legal counsel and informed the Court that he had been properly served the summons and agreed with the claim. He offered to pay $50/week to the Plaintiff. The Plaintiff sought FIFA. The Court noting that the Defendant did not dispute the claim ordered judgement by consent. 

On 27th July 2015 the Defendant/Applicant in Motion filed the notice of motion which this Court in dealing with in this Ruling. The Parties were given time to file affidavit in response and reply accordingly. 

The motion was heard on 21st October 2015. The parties have also made written submissions which have been considered by this Court.

Preliminary Issue

In this matter this Court has noted that the Applicant/Defendant has not filed any notice of intention to appeal or any grounds of appeal. 

The preliminary issue that is to be determined by this Court is whether this Court has jurisdiction to deal with application to extend time to file Notice of Intention to Appeal if the Appellant fails to file Notice of Intention to Appeal within seven (7) days after the decision was given pursuant to Order 37 Rule 1 of the Magistrate Court Rules.

This Court has noted the decision of Justice Kumar in Katafono v. Brown unreported Civil Action No. HBC 135 of 2014 and Jans Rental Cars (Fiji) Limited v. Nand and Lutz, unreported Civil Action No. HBM 147 of 2014, His Lordship Justice Kamal Kumar looked at the issues of leave to appeal out of time. The Ruling in these cases was delivered in January 2016. On the issue of leave to appeal out of time Justice Kumar decided as follows: “… Magistrates Court has jurisdiction/discretion to extend time for filing of notice of intention to appeal and grounds of appeal under Order 3 Rule 9 of the Magistrates Court Rules, even if Application to enlarge time is made after prescribed time has expired.” 
Having noted that this Court has jurisdiction/discretion to extend time for filing of notice of intention to appeal and grounds of appeal this Court will now look at the following (a) the length of the delay, (b) the reasons for the delay, (c) the merits of the proposed defence and (d) any prejudice likely to result to the Respondent which have been established in Loks Crane and Contractors Limited –v- Clutch Systems (Fiji) Limited unreported Civil Appeal 31 of 1999 Lautoka delivered 17 July 2002 per Gates J (as he then was)) and later applied in Nand v. Famous Pacific Shopping (NZ) Limited (2010) FJHC 619; Civil Appeal No. 6 of 2009 as factors to consider when dealing with the issue of leave to appeal out of time.

(a) Length of Delay

In Revici v. Prentice Hall Incorporated & Ors [1969] 1 ALL ER 772 – Lord Dennings M R rejecting the Appellant's submission that time does not matter as long as costs are paid where he stated as follows:

 "Nowadays we regard time very differently from what they did in the nineteenth century. We insist on rules as at time being observed….. So, here although time is not quite so very long, it is quite long enough."

In Revici's case time for appeal had expired by one month.

Judgment by consent was given by this Court on 18th February 2015.

Pursuant to Order 37 Rule 1 of Magistrates Court Rule, Notice of intention to Appeal should have been filed by 25th February 2015. The notice of motion seeking leave to appeal the decision was filed on 23rd July 2015. This is about 5 months from the time the notice of intention to appeal was due. A writ of Fieri Facias was issued against the Defendant on 22nd June 2015. According to the affidavit of the Defendant/Applicant it is clear that he only sought legal advice when the Bailiffs went to him with the writ of fifa. 

(b) Reasons for delay

Lord Davies in Revici's case stated that:-

"... rules are there to be observed; and if there is non-compliance (other than a minimal kind), that is something which has to be explained away. Prima Facie if no excuse is offered, no indulgence should be granted" (at 747 para F).

Application was refused in Revici's case as no explanation for delay was given. In 1st Deo Maharaj – the Court of Appeal adopted with approval the following quote from Gallo v. Dawson [1990] 64 ALJR 458 at 459.

"Case needs to be exceptional before a Court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he/she had researched the issues involved. In Hughes v. National Trustees Executors & Agency Co. of Australasia Ltd [1978] VR 257, Mclnerney J pointed out (at 263) that one object of fixing times under court rules is "to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations." When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a "vested right to retain the judgment". It would make a mockery of 0 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of knowledge is a misfortune, not a privilege."

In Tevita Fa v Tradewinds Marine Ltd. & Anor. – Civil Appeal No. ABU0040 of 1994 (FCA) – His Lordship Justice Thomson (as then he was) in dismissing Appellant's application for extension to appeal made four days after the expiration of time to appeal stated:-

 "The application for leave to appeal was filed only 4 days after the end of the period of six weeks. That is a very short period but time-limits are set with the intention that they should be observed and even lateness of only a four days requires a satisfactory explanation before an extension of time can properly be granted. In this case, as stated above, the applicant has given no explanation at all. That he may have been confused is merely an inference that Mr. Patel has asked me to draw from his statement of present belief that time began to run only from 8 August 1994."

In Tevita Fa's case, it was submitted by Appellants' Counsel that there had been a misunderstanding on the solicitor's part as when time started running for Appeal. The following explanation for delay has been held to be unsatisfactory and not a basis for granting extension by the Fiji Court of Appeal:-

•	Oversight by instructing solicitor due to Appellant's commitment in Australia even when the Appellant's solicitor was engaged in a Supreme Court (now High Court) criminal trial at relevant time for filing appeal. Jawant Singh v. Peter Francis (Action No. 57 of 1973 FCA (cyclostyled judgment) – Marsack JA (referred to in 1st Deo's case at page 3).

•	Misunderstanding as to when time for appeal started running. [Tevita Fa's case]

•	A misunderstanding of the effect of Court of Appeals judgment concerning the Special Damages. Attorney General of Fiji & Anor v. Paul Praveen Sharma – Civil Appeal No. ABU0041/93S – FCA.

•	Applicant's solicitor mistakenly thought they had 30 days in which to appeal from the date on which judgment was served (Applicant's solicitors to be blamed – not applicant). [Latchmi's case] 

Even where delay has not been inordinate Applicant needs to provide satisfactory reason for the delay.

The reasons for the delay in this matter is basically explained by the Applicant as that he did not know the implications of the consent orders and the other orders made by the Court and by the time he received all the information the time had expired.

This Court has noted that lack of knowledge is a misfortune not a privilege and finds that the reasons given for delay in its entirety is unsatisfactory. This Court has further noted that the Applicant in the submissions stated that the reason for the delay was that he had financial difficulties in filing his appeal. This is not stated in his affidavit. This Court will therefore disregard such submissions which are not supported by sworn evidence. 

(c) Merits of Appeal

His Lordship Justice Richmond in Avery v. No. 2 Public Service Appeal Board & Ors [1973] 2 NZLR 86 stated as follows:

"Once an appellant allows the time for appealing to go by then his position suffers a radical change. Whereas previously he was in a position to appeal as of right, he now becomes an applicant for a grant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all the circumstances the justice of the case requires that he be given an opportunity to attack the judgment from which he wishes to appeal."

In Tevita Fa's case his Lordship Justice Thomson stated as follows:

"However, as important as the need for a satisfactory explanation of the lateness is the need for the applicant to show that he has a reasonable chance of success if time is extended and the appeal proceeds."

From the proposed grounds of appeal it can be noted that the Applicant's proposed grounds of appeal is that the plaintiff is an illegal moneylender, circumventing the money lending act by charging default fee of $20.00 per day which indirectly represents interests, an unlicensed money lender, the Plaintiff has no enforceable action in any court of law, and that the order of the Court was ultra vires.

This Court is of the view that the Applicant's proposed grounds of appeal genrally lacks merit. The Applicant does not deny any agreement or dealing with the Plaintiff.  The Court finds that the argument that one needs licence to lend money to another and any money lent otherwise cannot be recovered through the Court to be debatable. Main emphasis is on the Money Lending Act.     

(d) Prejudice to the Respondent

In Avery's case his Lordship Justice Richmond at page 92 further stated:-

"The rules do not provide that the Court may grant leave if satisfied that no material prejudice has been caused by the failure to appeal in time. Everything is left to the discretion of the Court on the wide basis that leave may be granted in such cases as the justice of the case may require. In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant on the one hand for leave to be granted together with the effect which the granting of leave would have on other persons involved."

His Lordship Justice Marsack JA in Latchmi's case stated:-

"In deciding whether justice demands that leave should be given, care 	must, in my view, be taken to ensure that the rights and interests of the Respondent are considered equally with those of the Appellant."

It is not doubted that a successful litigant is entitled to fruits of litigation without undue delay.

The applicant in Para 19 of his affidavit states that:
"… that the Plaintiff will not be prejudiced if leave is granted … as the Plaintiff is a man of substance as indicative by the many people obtaining loan from him and number of motor vehicles he possesses and the regular income received by his wife…" 

The fact that one party is better off is not the issue. Every litigant has a right of appeal and given the fact that Applicant's delay in filing application for enlargement of time was inordinate, the reason for delay is unsatisfactory; the proposed ground of appeal lacks merits.  The Applicant in this action has taken things lightly. He came to Court and agreed to settle the sum owed to the Plaintiff. He did not settle the sum. When the Plaintiff pursued the claim and served FIFA the Applicant literally “woke up”. His arguments in this Court basically showed that he did not take the matter seriously and did not act within the stipulated time therefore for these reasons his application to seek leave to appeal out of time is refused. 

As for costs the Applicant should pay the Cost for Application to extend time as stated in Order 3 Rules 9 of the Magistrate Court Rules.

This Court hereby Orders as follows:

(ii)	Applicant/Defendant is refused leave to appeal out of time. 

(iii)	Applicant/Defendant to pay Plaintiff/Respondent cost of this action assessed in the sum of $500.00 by 11th August 2016. 

Chaitanya Lakshman
Resident Magistrate
11th July 2016