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Land Transport Authority v Sahid Logging Suppliers [2011] FJHC 582; HBM69.2011 (1 September 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION
Civil Action No: HBM 69 of 2011

BETWEEN:

LAND TRANSPORT AUTHORITY
[Plaintiff]

AND:

SAHID LOGGING SUPPLIERS
[Defendant]

Counsel: L/O LTA for the Plaintiff.
Mr. R. Chand for the Defendant.

Date of Judgment: 1st September, 2011

JUDGMENT

1. This is the plaintiff appellant's (hereinafter referred to as the appellant) Notice of Motion for leave to file its notice and grounds of appeal out of time.
   
2. By its inter-partes motion the appellant seeks following relief:
   
   1. That leave be granted to the appellant to file its notice and grounds of appeal out of time;
      
   2. That a stay be granted on the execution of the judgment until the determination of the appeal;
      
   3. That the court determines a legal issue on the matter in light of the applicant's status as an agent of the State;
      
   4. That the costs of this application be costs in the cause; and,
      
   5. Any other and further order that the court may deem just.
      

Background to the Action:

3. On 30.07.2010, in the Magistrates' Court of Nausori, a judgment was given in favour of the respondent in Civil Action No. 77/2007 for a sum of $12,600.00 inclusive of costs and interest thereon.
   
4. The Court Sheriff had converged at the appellant's Valelevu Office on 24.5. 2011 to take inventory of the appellant's assets on satisfaction (in fulfilment) of the said judgment.
   
5. Consequently, the Court's Sheriff has acquired vehicle number FG 374 in satisfaction of the above judgment sum.
   
6. In support of the Notice of Motion, the legal officer of the appellant has filed an affidavit.
   
7. In that affidavit, it is deposed that the appellant had filed its Notice of Appeal with Nausori Magistrate Court but had failed to file its Grounds of Appeal.
   
8. It is further stated that since there was no written judgment forwarded by the Magistrate, the appellant failed to file its grounds of appeal and while the appellant awaiting the written judgment, a Writ of Fieri Facias was issued.
   
9. Furthermore, it is stated that a Writ of Fieri Facias is not the proper mode of enforcing the judgment in light of the appellant's status as an agent of the state.
   
10. Opposing the appellant's Notice of Motion, the respondent filed an affidavit. In the affidavit, the respondent admits that the appellant had filed the Notice of Intention to appeal on 27.08.2010.
    
11. It is further deposed that after 27.09.2010, no action has been taken by the appellant to proceed with the appeal and therefore the respondent's solicitors were instructed to institute a Writ of Fieri Facias in the respondents favour.
    
12. The respondent admits there was no written judgment by the Magistrate, but states that the appellants had not made any attempt to obtain any abstracts of the judgment after the filing of its Notice of Appeal.
    
13. Further, the respondent admits that the execution of the Writ of Fieri Facias may not be the proper cause of action but states that it is not fatal.
    
14. Since the appellant had not been diligent almost for a period of 1 year from the date of the delivery of the judgment, the respondent moves court to dismiss the appellant's Notice of Motion.
    

Relevant Legal Principles

15. Since the appellant seeks leave to file grounds of appeal out of time, the onus of satisfying the court of the need for enlargement of time is on the appellant.
    
16. In A.G & Another v. Paul Praveen Sharma, Fiji Court of Appeal, Civil App: No. ABU00041/93S 17 May 1995 five factors were identified for consideration in applications of this nature. These factors were reiterated by justice Gates (as he then was) in Loks Crain and Constructors Ltd V. Clutch Systems (Fiji) Ltd [2002]FJHC 306
    
17. They were:
    
    • The reason for the failure to comply;
    • The length of delay;
    • A question justifying serious consideration;
    • In light of the substantial delay, existence of any other grounds it that they would probably succeed; and,
    • The degree of prejudice to the respondent in enlarging time.
      
18. Following authorities would throw light as to how the court should approach in deciding the issue of delay.
    
19. In Ratnam v. Cumarasamy [1964] 3 All E.R 933 it was held:
    
    1. "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."
       
20. In Crest Chicken Ltd v. Central Enterprises Ltd [2005] FJHC 87 Justice Pathik having cited the above case went on to state as follows:
    
    1. "It has been stated time and time again that the Rules are there to be obeyed and non compliance with them could prove fatal as shown by decided cases."
       
21. In C M Stillevoldt B V v. E L Carrieres(1983) 1 WLR 207, the court allowed an extension where the applicant's solicitors were 2 weeks late in setting down the appeal whereas in R v. Rhodes (1910) 5 Cr App 35 a month was considered a substantial interval of time. In R.V.Marsh (1935) 25 Cr. App.R 49, two months were referred to as a considerable delay. In both cases the applications were refused.
    
22. In Rawashdeh v. Lane (1988) EG 109 six weeks delay was referred to as lengthy.
    
23. It is accepted now that where the delay is slight, it is generally unnecessary to go into merits, but when the delay is very much longer much more merit was required to overcome it.
    
24. This principle is enunciated by Lord Donaldson MR in Norwich and Peterborough BS v Steed [1991] 2 All ER 880 at p 886 when he commented on the issue of delay by comparing Palata Investments vs Burt and Sinfield [1985] 2 All E.R 517 (when the delay was 3days) with Rawashdeh v. Lane [1988] EG 109 (where the delay was 6 weeks) as follows:
    
    1. "In Palata's case the delay was as short as could be and was wholly excusable. The merits therefore played little part. In Rawashdeh's case the delay was very much longer-it was six weeks in fact- and was not wholly excusable. Much more merit was required to overcome it."
       
25. In Revici v Prentice Hall Incorporated and Others (1969) 1 All E.R. 772 it was held that
    
    • (i) The rules of the court must be observed and it mattered not that the plaintiff had offered to pay the costs and that no injustice would be done to the other side.
      
    • (ii) If there was non- compliance of the rules it must be explained; and prima facie if no excuse was offered no indulgence should be granted.
      
26. In that case Lord Denning M.R dealt with the issue of delay and non-compliance with Rules as follows;
    
    • (i) "Nowadays we regard time very differently from what they did in the 19th century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the Rules as to time. So here, although the time is not so very long, it is quite long enough. There was ample time for considering whether there should be an appeal or not. (I should imagine it was considered.) Moreover (and this is important), not a single ground or excuse is put forward to explain the delay and why he did not appeal. The plaintiff had three and half month in which to lodge his notice of appeal to the judge and he did not do so. I am quite content with the way in which the judge has exercised his discretion. I would dismiss the appeal and refuse to extend the time anymore.'
      

The appellant's reasons for the failure to comply and the length of delay:

27. In the present case the length of delay is 9 months, which warrants more explanation by the appellant. However, in considering the circumstances, which prevented the appellant from filing its grounds of appeal in the instant case, it is my considered view that a more liberal approach should be adopted by the Court when it deals with the issue of delay in deciding the present application.
    
28. Both the appellant and the respondent admit that there was no written judgment by the magistrate. Hence, it is quite difficult if not impossible for the appellant to file his grounds of appeal without knowing exactly the grounds upon which the learned Magistrate held in favour of the respondent in trial at the Magistrate Court.
    
29. It is Order 37 Rule 1 of the Magistrate's Court Rules which sets out the time limit within which Notice of Intention to Appeal shall be given. The Order reads as follows:
    

Every appellant shall within 7 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 notice in writing of his intention to appeal:

1. Provided that such notice may be given verbally to the court in the presence of the opposite party immediately after judgment is pronounced.
   
30. Order 37 Rule 3 sets out the time within which grounds of appeal to be filed. The Order reads as follows:
    
    • (i) 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 appeal to be served on the respondent.
      
31. In the present case the notice of appeal has been filed and issued in time. The reason of delay in filing grounds of appeal was due to the non availability of the written judgment of the magistrate court, without which the applicant could not file its grounds of appeal. Therefore, the applicant has shown that the circumstances beyond its control had prevented it from taking necessary steps in the case in time.
    
32. It seems abundantly plain therefore that the applicant could not file its grounds of appeal due to an administrative laxity of the court, which in my view is sufficient to persuade Court to dispense with compliance of Order 37 rule 3 of the Magistrate Court Rules.
    
33. It must be further emphasized that a litigant should not be made to suffer due to an administrative laxity of the Court.
    
34. Upon consideration of the above facts, I conclude that the reasons advanced by the applicant in support of its motion are very genuine and can be accepted.
    
35. The applicant further argued that a Writ of Fieri Facias is not the proper mode of enforcing the judgment.
    
36. The Land Transport Authority is an agent of the state. The section 20 of the Crown Proceedings Act specifically provided for the procedure to be followed in executing a judgment against the state organs. Therefore, the judgment should have been entered under the section 20 of the Crown Proceedings Act.
    
37. However, in the present case a Writ of Fieri Facias has already been issued. Hence, I am not inclined to cancel the Writ of Fieri Facias at this stage because that issue can be determined in the substantive appeal.
    
38. The orders are therefore as follows:
    
    1. The leave is granted to the appellant to file its Notice and grounds of appeal out of time;
       
    2. The execution of the judgment is stayed until the conclusion of the appeal;
       
    3. Costs shall be in the cause.
       

....................................
Pradeep Hettiarachchi
JUDGE

01.09.2011