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Khan v Kumar [2006] FJHC 68; HBC014.2006 (25 August 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 014 OF 2006

NO. 165 OF 2006

BETWEEN

KYAIYUM KHAN
1st Appellant/
Original 1st Defendant

AND

SHERIN NAZRUL NISHA
2nd Appellant/
Original 2nd Defendant

AND

MADHUR KANT KUMAR
RESPONDENT
Original Plaintiff

Appearances: Messrs Patel & Sharma for the Appellants
Mr. H. A. Shah for the Respondent

Hearing: 11 August 2006
Decision: 25 August 2006

JUDGMENT

[1] Before me is a motion filed by the appellants for the following orders:

(i) that the notice of intention to appeal dated 19 April 2006 (notice of appeal) be included in the Record of the Nadi Magistrates Court in civil action number 74 of 2005 (the Nadi action)

(ii) that the notice of appeal was duly filed in the Nadi Magistrates Court

(iii) any other order which the Court deems fit on the grounds contained in the affidavit of Sherin Nazrul Nisha filed in support of the application (appellants’ supporting affidavit).

Background

[2] On 21 June 2006, the appellants filed notice and grounds of appeal in this Court against the judgment of the Nadi Magistrates Court (the Nadi court) of 12 April 2006. Six grounds of appeal were raised including that the Nadi court did not have jurisdiction to entertain the claim before it. (Suffice it to say at this stage that the grounds have merit).

[3] The appellant had earlier on 30 May 2006, obtained ex-parte relief in these proceedings. The orders granted were:

(i) that the Court Officer of the Nadi Magistrates Court should provide to this Court its civil action file number 75 of 2005 within fourteen (14) days together with a typed copy of the Court Records; and

(ii) that the Resident Magistrate at Nadi, Mr. Sayed Muktar Shah should provide a transcript of his final ruling in civil action number 74 of 2005 of 12 April 2006 within 14 days.

The orders made got the records prepared and the relevant file to this court.

[4] The proceedings were adjourned to 16 June 2006. On 23 June 2006 the appeal was set down for hearing on 4 August 2006.

[5] On 4 August, learned counsel for the Respondent raised a preliminary objection. He submitted that the appellant had failed to comply with provisions of Order 37 of the Magistrates’ Courts Rules (the Rules). Mr. Shah submitted in effect that the consequence of that failure was that there was no appeal properly on foot in this court and therefore the entire proceedings ought to be dismissed.

[6] The preliminary objection prompted the filing of the present application.

Consideration of Application

[7] At the hearing of the application Mr. Shah conceded prayer (i) – that the notice of appeal dated 19 April 2006 be included in the record of the Nadi action court file. To have argued otherwise would have been an exercise in futility given that annexed in the appellants’ affidavit in support is an issued copy, from the Nadi court registry, of the notice of appeal dated 19 April 2006 and the original receipt issued by the Nadi court on 19 April 2006 in respect of the filing of the said notice. The notice although filed in time does not appear to have been issued until 23 April 2006. Given the circumstances of how these proceedings first came before this Court, it is not surprising that there is no record of the notice of appeal being filed, in the Nadi court file now with this Court. However the original receipt issued by the Nadi Court Registry evidences that the notice of appeal was duly filed in the Nadi court.

[8] The respondent contends that O. 37 r. 1 of the Rules requires the appellant to give notice in writing of intention to appeal to a respondent and the appellants have not complied with the requirement. Service is said to have not been effected. The respondent also submits that the Rules require that the Grounds of Appeal be filed in the Nadi court, which has also not been done.

[9] Learned counsel for the appellants, Ms. Draunidalo, submitted that O. 37 rules 18 and 19 of the Rules gives the appellate court a wide discretion to cure any irregularities pertaining to filing and service of the Appeal papers. She also submitted that the appellant’s failure to strictly comply with the provisions of O. 37 of the Rules has been sufficiently explained and that given the circumstances of the commencement of these proceedings, justice requires that I exercise my discretion in favour of her clients. I agree.

[10] The appellants have satisfied me, that in all the circumstances the justice of the case requires that they be given an opportunity to attack the judgment from which they wish to appeal. The non-compliance with the Rules has been sufficiently explained. They were compelled to come to this Court to obtain a written judgment from the Nadi court which should have been given to them, as of right, when the judgment was delivered by virtue of O. 34 r.4 of the Rules as amended by the Magistrates’ Courts (Amendment) Rules 2000. It was not until Justice Connors granted the orders he made on 30 May 2006 that the appellants could properly prosecute an appeal against the Nadi court’s judgment of 12 April 2006.

[11] In Reddy –v- Lata [1994] FJHC 153, Justice Pathik when considering the exercise of discretion on an application to appeal out of time in the Magistrates Court cited the principle expressed in Weldon –v- Be Bathe 3 TLR 1986-87 and I quote:

"...... the Court ought not to fetter its discretion as to extending the time for appealing by laying any strict definition on the point, the Court would always exercise its discretion for the purpose of doing justice."

[12] In the circumstances of these proceedings, it is that principle which I apply in the exercise of my discretion in this matter. I am satisfied that the appellants have satisfied the onus of establishing that the justice of the case requires that they be given an opportunity to appeal against the Nadi court judgment in these proceedings. They have been prejudiced by the failure of the Nadi Court to:

(i) issue the notice of appeal when it was filed in a timely manner

(ii) make available to them a written judgment when it was delivered on 12 April 2006.

[13] The appellants were compelled to file proceedings in this Court, to have a written judgment made available to them. They have incurred unnecessary legal expenses when a written judgment should have been provided to them when it was delivered and they have already suffered the consequences of delay in prosecuting their right of appeal. The amended Rules aforesaid are there to ensure efficiency, transparency and accountability and hence justice – this court will not readily allow non-compliance of procedural rules to defeat those ends.

[14] It is patently obvious to me and especially given the absence of any record whatsoever of the notice of appeal in the Nadi court file that the non-compliance complained of was not a consequence of failure on the appellants’ part alone. They were prevented from doing all the necessary to comply with the Rules, which are mandatory, by their inability to obtain a written judgment from the Nadi court coupled with the Nadi court registry’s delay in issuing the notice of appeal.

[15] In the exercise of my discretionary powers under 0.37 rules 18 and 19 of the Rules, and in the exercise of my inherent jurisdiction I have granted the orders sought in the appellants’ application. Time is extended to serve the notice of appeal and grounds of appeal. The grounds of appeal filed herein, are deemed to have been filed in the Nadi court and now forms part of the record of appeal. It would serve no useful purpose whatsoever, other than further delay these proceedings if I were to order the re-filing of the grounds of appeal in the Nadi court given that the original Nadi court file is now before me and any further delay in hearing the appeal is likely to prejudice both parties. The notice of appeal and grounds of appeal herein are to be served on the respondent’s solicitor by 4 pm, Tuesday 29August 2006.

[16] I will now fix a hearing date to hear the appeal and order costs in the cause.

Gwen Phillips
JUDGE

At Lautoka
25 August 2006