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Naidu v Dominion Insurance Ltd [2014] FJHC 171; HBC22.2013 (6 March 2014)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

CIVIL APPEAL NO. HBC 22 OF 2013

BETWEEN:

REENA KRISHNA NAIDU of Nadi
APPELLANT

AND :

DOMINION INSURANCE LIMITED a limited liability company having its registered office at Level 2, 231 Waimanu Road, Suva
RESPONDENT

Appearances: Mr R. Singh for Appellant
Mr A. Narayan for the Respondent

Date of Hearing : 06.03.2014

Ruling

Introduction
1. This is an appeal from the decision of the Resident Magistrate of the Nadi Magistrate Court delivered on the 20th of August 2013 whereby the Honourable Magistrate ordered costs against the appellant in terms of the Notice of Assessment of costs on Solicitor/Client basis filed on 30th July 2013.

2. When the matter was taken up for hearing before me on the 6th of March 2014 the learned counsel for the respondent raised a preliminary objection to the appeal and submitted that there has been substantial non-compliance of order 55 of the High Court Rules and therefore is defective and should be struck out.

3. The Learned counsel objected to the appeal on the following grounds:

i) The application is irregular and incurable.

ii) The application is out of time and therefore deemed abandoned.

iii) The application is in substantial non-compliance and consequently in breach of the Magistrate Court Act Cap 14 and the High Court Act and Rules 1988 Cap 13, and

iv) In the circumstances the application is an abuse of the process of Court.

4. The Learned counsel referred to Order 55 Rule 3 of the High Court Rules 1988 and submitted that the said Rule 3 provides specific provisions on the manner and form in which an appeal is brought.

5. Order 55 Rule 3 Provides:

Bringing of Appeal (O 55 r 3)

3 (1) An appeal to which this Order applies shall be by way of originating motion.

(2) Every Notice of Motion by which such an appeal is brought must state the grounds of appeal and, if the appeal is against a judgement, order or other decision of a court, must state whether the appeal is against the whole or part of that decision, and if against a part only, must specify the part.

6. Order 55, Rule 4 provides

4 (1) The persons to be served with notice of motion by which an appeal to which this Order applies is brought are the following:-

(a) If the appeal is against a judgement, order or other decisions of a court, the Registrar or clerk of the court and any party to the proceedings on which the decision was given who is directly affected by the appeal.

4 (2) The notice must be served, and the appeal entered, within 28 days after the date of the judgement, order, determination or other decision against which the appeal is brought.

7. Respondents counsel submits that since there is no application by way of Originating Motion as provided by Order 55 Rule 3 there is no application before the court and on that ground alone the matter can be dismissed with full indemnity costs.

8. Furthermore, counsel submits it also goes without saying that a Motion is to be accompanied by a supporting affidavit and that the supporting affidavit would be sworn by the appellant or on the alternative someone authorised to swear on behalf of the appellant.

9. He submits that on the absence of an affidavit the court together with the respondent is unaware whether the appellant has actually instructed her counsel to file an appeal.

10. In reply to the submissions of the Counsel for the Respondent Learned counsel for the appellant submitted that Order 55 of the High Court does not apply in terms of procedure to an appeal from the Magistrate Court as the Magistrate Court has clear and concise rules which will apply on appeals from that Court.

Law and Analysis
11. In considering the application of Order 55 to an appeal, Order 55 Rule 1 provides as follows:

(1) "Subject to paragraph (2) and (3), this Order shall apply to every appeal which by or under any enactment lies to the High Court from any Court, tribunal or person.

(2) This Order shall not apply to –

(a) any appeal by case stated; or

(b) any appeal under any enactment for which rules governing appeals have been made thereunder, save to the extent that such rules do not provide for any matter dealt with by these rules."

(Emphasis added)

12. It is clear from Order 55 rule 1 (2) that where the lower Tribunal/Court has an established Rules of Appeal, application of the High Court Rules will be limited to provide for any matter not provided by the Rules of lower Tribunal/Court.

13. Learned Counsel for the respondent has cited paragraph 2 from Patterson Brothers Ltd V Sami (2005) FJHC 752; HBA 0023J 1998 L (8 March 2005) to support the contention that order 55 of the High Court rules applies to appeals from the Magistrate Court.

14. Justice Gates (now the Chief Justice of Fiji) at paragraph 2 of the judgement, stated:

"The jurisdiction and powers of the High Court in matters of civil appeals from the decision of Resident Magistrates are provided for by section 18 of the High Court Act Cap 13 (as amended by Act No. 27 of 1998) and by section 120(3) of the Constitution. Rules 36-40 of the Magistrates Court Rules Cap 14 and High Court Rules Order 55 also have bearing. The High Court's powers are set out at Order 55r.7."

15. I am of the view that the reference made to Magistrate Court Rules 36-40 and Order 55 of the High Court rules in the said judgement is in relation to the jurisdiction and powers of the High Court in matters of Civil appeals from the decisions of Resident Magistrates and not with regard to the procedure to be followed in bringing an appeal.

16. Section 38 of the Magistrate Court Act provides the Conditions precedents to appeal

"Subject to the provisions of section 39, the Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal imposed by the magistrates' court or by the Supreme Court, as prescribed by rules of court."

(Emphasis added)

17. When order 55 Rule 1 (2) of the High Court Rule and Section 38 of the Magistrate Court Act are read together it is clear that the Order 55 of the High Court Rules will apply only when the magistrates Court Rules do not provide for circumstances which may arise in the appeal process of the particular appeal.

18. Order 37 of the Magistrate Court Rules provide the conditions precedent in bringing an appeal to High Court from a judgement of a Resident Magistrate.

(i) Order 37 Rule 1 provides:

That every appellant shall within seven days after the day on which the decision appealed is given should give notice of intention to appeal to court and the Respondent.

(ii) Order 37 Rule 3 (1) provides:

That within one month from the date of the decision appealed from file in the Court below grounds of appeal and shall cause a copy to be served on the Respondent.

(iii) Order 37 Rule 7 provides:

That within seven days from filing of grounds of appeal the court below shall without application of any party make up the record of appeal and when completed forward to the Chief Registrar or clerk of the appellate court.

(iv) Order 37 Rule 8 (1) provides:

That the Chief Registrar or clerk of the appellate court shall cause a copy of the record of appeal to be made at the cost of the appellant for the use of the appellate court.

(v) Order 37 Rule 12 provides:

That if the appeal is from a final judgement or decision the Chief Registrar or clerk of the court of the appellate Court as the case may be, shall give notice of the date of hearing to the parties to the appeal.

19. The full reading of Order 37 of the Magistrate Court Rules revels that the said rules clearly lay down the procedure of bringing an appeal to the High Court from a decision of a Resident magistrate. In summarising the provisions it provides for:

i) The appellant to give Notice of Intention to appeal within seven days after the day on which the decision appealed against was given.

ii) The appellant to file grounds of appeal in the court below within one month from the date of the decision appealed from including the day of such date and shall cause a copy to be served on the Respondent.

iii) within seven days of filling the grounds of appeal the court below to make up the record of appeal and shall forward it to the Chief registrar or clerk of the appellate court.

iv) The Chief Registrar or clerk of the appellate court to cause a copy of the appeal to be made at the cost of the appellant for use of the appellate court certified by the trial Magistrate.

v) The Chief Registrar or clerk of the appellate court to give notice of the date of hearing to the parties.

20. As mentioned in the above paragraph it is clear that the Magistrate Court rules provides the conditions that the appellant has to fulfil in bringing an appeal to High court on a decision of a Resident Magistrate.

21. As such the High Court Rules will apply only to the extent that Magistrate Court Rules do not provide for any matter dealt with by the High Court Rules as per Order 55 Rule (2) (b) of the High Court Rules.

22. The Magistrate Court Rules does not require an appellant to file an Originating Motion in bringing an appeal of this nature. Therefore the Court must consider whether that condition should be fulfilled by an appellant in bringing an appeal to High Court.

23. Under the Magistrate Court Rules Notice of Intention to appeal must be filed in the Magistrate Court within seven days of the judgement appealed against with notice to the Respondent and under High Court Order 55 Rule 4 (1) the Notice of Motion must be served to the Registrar or clerk of the court and any party to the proceedings within 28 days after the date of the judgement.

24. If the appellant is to follow rules of the Magistrate Court along with the High Court Rules he will have to submit grounds of appeal twice, once to the Magistrate court within 30 days of the judgement appealed against and again to the High Court within 28 days of the judgement by stating the same in the Notice of Motion.

25. When comparing the conditions precedent to an appeal provided in the Magistrate Court Rules and the High Court Rules as above it is evident that they are not parallel to each other and an appellant cannot fulfil the conditions imposed by rules of the Magistrate Court as well as the High Court in brining an appeal.

26. As the Magistrate Court rules provides the conditions precedent to bringing an appeal to High Court it is mandatory for the appellant to fulfil those conditions and he has no way of ignoring those rules in order to fulfil the conditions provided by the High Court Rules.

27. I find that in this matter the appellant has fulfilled the conditions precedent provided by the Magistrate Court Rules in bringing this appeal.

Conclusion

28. In view of the above reasoning, I conclude that the Preliminary objection raised by the Respondent should be dismissed.

29. Accordingly, I make the following orders;

a) The preliminary objection raised by the Respondent be dismissed

b) The matter to take its normal course.

c) Parties to bear their own costs.

L.S. Abeygunaratne
Judge

25/03/2014