IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION

Civil HBM 22 of 2015

BETWEEN:

SURESH MANI of 11 Bau Place, Jamuna Street, Lautoka, Sales and Marketing Agents.
PLAINTIFF/APPLICANT

AND:

SATISH PRASAD and ANSHU MALA both of Vomo Street Lautoka, School Teachers
DEFENDANT /RESPONDENT

Appearances 
Plaintiff in Person
Defendant in Person 

Date of Hearing: 27.8.2015
Date of Decision: 27.8. 2015 

REASONS FOR DECISION

Introduction

[01] On 27 August 2015 I refused leave to appeal out of time for the reasons to be delivered later, which I now do.

[02] This is an application to enlarge time to appeal a judgment of the Magistrate sitting at Lautoka. The judgment was delivered on 6 August 2014.

[03] On 17 August 2015 the applicant filed a notice of motion for leave to file grounds of appeal out of time ('the application').

[04] The applicant relies on the affidavit sworn by him on 15 August 2015.

[05] The respondents did not file any objection to the application. Only first named respondent was present at the hearing of the application.

The application

[06] The application seeks the following orders:

1.	That leave be granted to file the Grounds of Appeal out of time against the Judgment [of his].

2.	That there be a stay of execution of all the orders made therein pending the determination of this application and/or until further order of this Honourable Court.

3.	That the costs of this application be cost in cause.

Background

[07] Briefly the background facts are as follows: The applicant was the plaintiff in the Magistrates' Court action. He was unsuccessful in the action. The respondents were defendants in that action. The learned Magistrate entered a judgment in favour of the respondents on their counterclaim in the sum of $17,000.00. The judgment was delivered on 6 August 2014. On 3 September 2014 the applicant filed a notice of intention to appeal. He was represented by a solicitor in the lower court. He did not file his grounds of appeal. On 20 February 2015 the respondents took out Judgment Debtors Summons ('the JDS') against the applicant. The applicant failed to appear before the Magistrates' court to answer the JDS. The court issued a bench warrant against the applicant. He later appeared in court. The bench warrant was recalled. The JDS is coming up before the Magistrate for means test on 19 September 2015. The applicant has filed the application for leave to appeal out of time in this court. He is nearly a year out of time to appeal the impugned judgment.

The Law

[08] The Magistrates' Court Rules ('the MCR') Order XXXVII regulates appeals in relation to Magistrates' Court decision. Rules 1, 3 & 4 of Order XXXVII are relevant to the present purpose. I will reproduce them for convenience.

[09] In accordance with rule 1, the appellant must give to the respondent and to the court within 7 days after the day on which the decision appealed against was given, notice in writing of his intention to appeal. However, such notice may be given verbally to the court in the presence of opposite party immediately after the judgment was pronounced. Rule 1 provides that:

'Notice of intention to appeal

1. Every appellant shall within seven 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 (hereinafter in this Order called "the court below") notice in writing of his intention to appeal: 

Provided that such notice may be given verbally to the court in the presence of the opposite party immediately after judgment is pronounced.'

[10] After filing the notice of intention to appeal within 7 days, the appellant must file his grounds of appeal within one (1) month from the date of the decision appealed from, and at the same time cause a copy of such grounds of appeal to be served on the respondent as required by rule 3 (1) which provides that:

'Grounds of appeal to be filed

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 of appeal to be served on the respondent.'

[11] Pursuant to the MCR rule 4, if the appellant fails to file his grounds of appeal within the relevant appeal period he will be deemed to have abandoned the appeal, unless the Magistrates' Court or High Court extended the time. Rule 4 states:-

'Effect of failure to file grounds of appeal

4. On the appellant failing to file the grounds of appeal within the prescribed time, he shall be deemed to have abandoned the appeal, unless the court below or the appellate court shall see fit to extend the time.' (Emphasis provided)

General principle

[12] The general principles governing the granting of leave to appeal out of time are as follows:

(i) Length of delay;
(ii) Reason for the delay;
(iii) Chance of appeal  succeeding if time for appeal  is extended; and
(iv) Degree of Prejudice to  the Respondent if application is granted.
(See, Herbert Construction Company (Fiji) Ltd v Fiji National Provident Fund [2010] FJCA 3; Miscellaneous Case 020.2009 (3 February 2010), Nair v Prakash [2013] FJCA 147; Misc. Action 10.2011 (30 October 2013) & Tora v Housing Authority [2002] FJCA 16; ABU0036.2002S (15 November 2002)).

Discussion

[13] I will now consider the application. The applicant applies for leave to appeal judgment of the learned Magistrate delivered on 6 August 2014. It is to be noted that applications on extending time for appealing decisions made by Magistrates' Court may be made to that court or to the High Court, see the MCR, rule 4 above. For one reason or other the applicant has preferred to make his application to this court.

[14] The court has discretion to enlarge the time to appeal outside the appealable period.

[15] Length of delay & reason for the delay: The application seeking leave to appeal out of time is made to this court on 17 August 2015. The impugned judgment was delivered on 6 August 2014. The applicant should have filed his appeal before 6 September 2014, for he had one month to file the same. So, he is nearly one year out of time. 

[16] The applicant's only explanation for such a long delay is that his solicitor had delayed and failed to file the ground of appeal and he was totally relaying on his lawyers. It appears that the applicant blames his solicitor for the delay. He must take responsibility for his solicitor's action. Blaming one's solicitor for the delay would not be a good sufficient explanation for the purpose of granting leave to file appeal out of time.

[17] The delay in this case is quite very long, and such long delay was not sufficiently explained by the applicant.

[18] Chance of appeal succeeding if time for appeal is extended: This is the third criterion that must be considered in an application for leave to appeal out of time. Unfortunately, the supporting affidavit filed by the applicant fails to include or attach any proposed grounds of appeal. It follows that the applicant has failed to show that he has any chance of appeal succeeding if time for appeal is extended.

[19] Prejudice to respondent: The application to extend time for appealing the decision of the Magistrate is being made at the execution stage and after the respondents filed the JDS to enforce the judgment. Each application must be viewed by reference to criterion of justice, and it is important to bear in mind that time limits are there to be observed, and that justice may be seriously defeated if there is laxity in this regard. In my view prejudice will be caused to the respondents if leave granted to appeal a judgment out of time after one year of the date of the delivery of that judgment at execution stage especially when the JDS is set down for means test in the court below. The respondent is entitled to enjoy the fruit of the judgment.

Conclusion

[20] The application to extend time for appealing the judgment of the Magistrate is being made after one year. One year delay is quite very long, and sufficient to refuse the application. The long delay was not satisfactorily explained. The court is unable to form any view in respect of success of appeal if leave is granted in the absence of proposed grounds of appeal. The respondent will be prejudiced if leave is granted at the execution stage, and particularly when the JDS is set down for means test. I would therefore, in the circumstance, refuse leave to appeal out of time.I note that the respondent does not make any application for costs. I would therefore make no order for costs, 

Final Outcome

1)	The application for leave to appeal out of time is refused.
2)	There will be no order as to costs.
3)	Orders accordingly.

..........................................
M H Mohamed Ajmeer
JUDGE
At Lautoka
08.9.2015