Mr K. Bulewa for the Appellant
Mr George Keil for 1st and 2nd Respondent DECISION
(Application in Chambers for Leave to File
Appeal Out of Time)
By Action No. 282 of 1989 the Applicant sued the University of the South Pacific, the 2nd Respondent and another, pursuing 2 separate
and quite disparate claims, one contained in paragraphs 1 to 11 of the Statement of Claim and the other in paragraphs 12-16. In a
written decision delivered on 15th August, 1990 Palmer J struck out the first part of the claim as being frivolous and vexatious.
He held that to allow it to proceed would constitute an abuse of the process of the Court.
On 21/8/91 that is almost a year and a week after delivery of judgment the Applicant filed an application for leave to appeal out
of time and supported it with an affidavit. On 11th September 1991 he followed it up with a supplementary affidavit to which he attached
his proposed grounds of appeal. I heard Mr K. Bulewa in support of the application on 17th September 1991 on which date Mr G. Keil
opposed the motion on the ground that reasons given for the delay were quite irrelevant. As it will become obvious in due course
there is no need for me to refer to the reasons nor to the details of the submissions for or against.
I had reserved my decision but when examining the trial record (to which both Counsel had made reference) I discovered that Palmer
J's judgment had not been perfected. Whereupon at my direction the Registrar of the Court sent the following letter to Mr K. Bulewa:
"I am directed by the Resident Justice of Appeal to refer to the above application in which decision has been reserved. However,
in the meantime his Lordship has noted that the judgment in question has not been perfected or sealed.
If this is so the question arises whether leave to appeal out of time is necessary having regard to the provisions of Rule 16 of
the Court of Appeal Rules.
In short, whether the time for filing appeal has indeed expired. In order to save time his Lordship would like you to file and serve
not later than Friday 27 September 1991 a written submission on the issue raised.
The Respondents will have 7 days thereafter to file and serve a response. A notice of oral hearing will be given if this is requested
or considered necessary.
I am sending a copy of this letter to Mr George Keil for his information and necessary action in due course."
In response Mr Bulewa made the following written submissions:
'Rule 16 of the Fiji Court of Appeal Rules states as follows:
"16. Subject to the provisions of this rule, every notice of appeal shall be filed and served under paragraph (4) of rule 15
within the following period (calculated from the date on which the judgment or order of the Court below was signed, entered or otherwise
perfected), that it to say-
(a) in the case of an appeal from an interlocutory order, 21 days;
(b) in any other case, 6 weeks."
It therefore follows that the time for lodging an appeal starts to run when the judgement or order is perfected. A judgement or order
is perfected when it is drawn up in such a way that it is not within the court's power to withdraw, alter or modify it on application
of the parties or on the judge's own initiative (re: Harrison's share under a Settlement. Harrison -v- Harrison [1955] C.h. 260, C.A; [1955] 1 All ER 195. We submit that the sealing of the order which has not been done in this instance would have perfected
the order of Palmer J.
In the absence of the order being sealed the judgement is not perfected for the above reasons. In the circumstance leave is not required
in Dr Muma's case. For the sake of completion it should be remembered that the words "signed, entered" used in Rule 16
of the Fiji Court of Appeal means the sealing of a formal Order'
Mr Keil obviously agrees that the time for appeal has not run out and has therefore very properly and helpfully made the following
written submission on behalf of his clients -
"Having considered the provisions of Fiji Court of Appeal Rule 16 and the authority cited by the Applicant re: Harrison's share under a Settlement. Harrison -v- Harrison and also Lant -v- Lant 1964 1 WLR 829 it would appear that a reasoned written judgment given by the Court and signed and dated when delivered by a Judge is not sufficient
for the purposes of Rule 16 of the Fiji Court of Appeal Rules."
The ruling given in 1974 by Williams J in John Fong v. John Polotini & Another 20 FLR 15 on the interpretation of Rule 16 was correct. There he held that 'the date of entry and perfecting of a judgment in a Civil Appeal
from the Supreme Court judgment, is not the day on which the judgment is delivered in Court, but the date on which the Registrar
approves, enters, files a draft thereof'. This judgment is in accord with Harrison's Case cited by Mr Bulewa and Lant's Case cited by Mr Keil except that it should be clarified that the time runs from the date of the actual sealing of the judgment or order.
In Lant's Case the English Court of Appeal held that 'a judgment or order which is "otherwise perfected" by sealing as opposed to being
"signed" or "entered" is authenticated when it receives the seal of the Court in which it is pronounced, so that
the time for appealing from such an order under R.S.C., Ord.58, r4(1) runs from the date of sealing, not from the date on which the
judgment or order is made'.
Rule 6 of the Court of Appeal Rules provides as follows:
"Subject to these Rules, the Supreme Court Rules shall apply to proceedings in and before the Court of Appeal in civil causes
and matters".
In Fiji the practice and procedure for drawing up and entry of judgments and orders are now governed by Order 42 r.6 (previously
Rule 5) of the High Court Rules (previously Supreme Court Rules) which came into force on 31st March 1988. Rule 6 of Order 42 reads
as follows:
&q.-(1) Every judgment gent given in a cause or matter and every order required to be drawn up shall be settled by or under the dion
of the Registrar before being entered or drawn up.
(2) The party seeking to enter a judgment or to have an order drawn up may and shall if so required by the Registrar prepare a draft
of the judgment or order and present the draft to the Registrar.
(3) If the party in whose favour a judgment is given or an order is made does not prepare it, have it settled and enter it within
21 days after it is given or made any other party affected by the judgment or order may prepare it, have it settled and entered.
(4) Every judgment when entered shall be endorsed with the date of entry."
No affected party has taken any steps to perfect Palmer J's judgment by having it sealed. In my view therefore the 6 weeks time allowed
by Rule 16(b) of the Court of Appeal Rules (already quoted in full by Mr Bulewa) for filing and service of Notice of Appeal has not
yet begun to run. It will run from the date when the judgment is "otherwise perfected", i.e. sealed. It therefore follows
that this application for leave to appeal out of time is not necessary. It is struck out with costs to the 1st and 2nd Respondent.
Sir Moti Tikaram
Resident Justice of Appeal
Suva
11th October, 1991.
Abu0052d.91s
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