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Naidu v International Embroidery Co Ltd [2025] FJMC 70; Appeal Case 9 of 2023 (13 November 2025)

IN THE MAGISTRATES COURT AT NADI CIVIL JURISDICTION

Appeal No. 9 of 2023 Magistrate Court Case No.267 of 2023 SCT Case No. 1863 of 2022

BETWEEN : ROHITESH NAIDU

APPELLANT AND : INTERNATIONAL EMBROIDERY CO LIMITED

RESPONDENT

RULING ON LEAVE TO APPEAL OUT OF TIME

This is an application filed on 5 October 2023 seeking leave to appeal out of time against the decision of the Small Claims Tribunal made on 13 April 2023. The application is brought pursuant to Order 37 Rule 4 of the Magistrates Court Rules 1945.

Order 37 Rule 4 provides that where an appellant fails to file grounds of appeal within the prescribed time, the appeal shall be deemed abandoned unless the court sees fit to extend time.

An affidavit in support was filed, and both parties have filed submissions which the Court has considered.

The law governing appeals from the Small Claims Tribunal is set out in Sections 31 and 33 of the Small Claims Tribunal Act 1991. The scope of such appeals is extremely limited: an appeal may only be brought where (a) the proceedings were conducted unfairly and prejudicially affected the result, or (b) the Tribunal exceeded its jurisdiction. There is no appeal on the merits, even if there is an error of law. (Nabalarua v Alfred [2014] FJMC 44; Pratap v Singh [2012] FJMC 291; Sheet Metal and Plumbing (Fiji) Ltd v Deo HBA 7 of 1999).

The principles applicable when determining an application to file an appeal out of time are well settled (Chans Long Chang v Yen Yain Kai [1999] FJHC 107; Gunac (South Pacific) Ltd v Modern Aluminium & Glass (Fiji) Ltd [2012]):

1. The length of the delay;
   
2. The reason for the delay;
   
3. The chances of success if leave is granted; and

4. The degree of prejudice to the Respondent.
   

I turn to each in turn.

1. Length of Delay

The Tribunal’s order was made on 13 April 2023. Under Section 33(3), the appeal ought to have been filed within 14 days, that is by 27 April 2023. This application was not filed until 5 October 2023, some 161 days later, being about 23 weeks or more than 5 calendar months out of time. This is a very substantial delay and weighs heavily against the Applicant.

2. Reason for the Delay

The Applicant explains that he had personal and work commitments which he prioritised and only sought legal advice in July 2023. He also claims that he was not served with the Tribunal’s order until 2 May 2023, by which time the 14-day period had already expired. He was not present when the Tribunal delivered its decision.

Even if the Court accepts that service only occurred on 2 May 2023, the Applicant did not act promptly. He waited a further five months before filing this application. Such prolonged inaction cannot be excused. A litigant has a duty to act diligently and to follow up with the Tribunal for outcomes when absent at hearing. Personal and work commitments are not sufficient reasons to explain such delay.

3. Chances of Success

The proposed grounds of appeal largely challenge the merits of the Tribunal’s findings regarding delivery of shirts, authenticity of documents, and the Respondent’s performance of the contract. However, as noted above, there is no appeal on the merits from the Small Claims Tribunal. The only permissible grounds are procedural unfairness or excess of jurisdiction. The affidavit and submissions filed do not identify any procedural unfairness in the manner the proceedings were conducted, nor do they establish that the Tribunal acted beyond its jurisdiction. Accordingly, the prospects of success of any appeal are extremely poor.

4. Prejudice to the Respondent

The Applicant asserts there is no prejudice to the Respondent. However, litigation must come to an end. The Respondent is entitled to the benefit of the Tribunal’s order and has already resorted to enforcement proceedings. To reopen the matter after such lengthy delay would cause prejudice in terms of cost, delay, and uncertainty.

Conclusion

Having regard to all four factors, this Court finds that:

● The delay of 161 days is excessive;

● The explanation offered is inadequate, even taking into account late service;

● The proposed appeal has no realistic prospects of success, being in substance an appeal on the merits; and

• ● Granting the application would cause prejudice to the Respondent.
  

The discretion to grant leave to appeal out of time must be exercised sparingly. On the facts of this case, the Applicant has not met the threshold required.

Order

The application for leave to appeal out of time is dismissed. The interim stay on the Judgment Debtor Summons proceedings is discharged. Costs awarded to the Respondent, summarily fixed in the sum of $300.

Any party aggrieved by this decision has the right to appeal.

............................
Setavana Saumatua
Resident Magistrate
13 November, 2025.