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Meghi v Naisaki [2012] FJMC 255; Misc Case 18.2011 (15 August 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Misc. No 18/2011

BETWEEN

ROMIT MEGHI
Appellant

AND

JIUTA NAISAKI
Respondent

RULING

1. The Appellant filed a notice of motion seeking leave to appeal out of time in respect of an Order made on the 1st April 2011 by the Small Claims Tribunal.
   
2. It appears that the Respondent (Claimant) has applied for a Judgement debtor summons in case No 304 of 2011 following the said Small Claim Tribunal Order made on the 1st April 2011. When the JDS matter was first mentioned on the 29th June 201, the Counsel who appeared for the Judgement Debtor (Appellant) sought a mention date to make an application for leave to appeal out of time.
   
3. Accordingly this notice of motion is filed on the 12th July 2011 seeking leave to appeal out of time.
   
4. The Respondent filed an affidavit in response opposing the application for leave to appeal out of time. Although the Appellant's counsel sought further time to respond to that, no submissions were filed up to date. However I will proceed to consider this application based on the affidavits filed by both parties.
   
5. Section 33(3) of the Small Claim Tribunal Decree provides for a party aggrieved by an order of the Small Claim Tribunal to file a notice of appeal in the prescribed form within 14 days from the Tribunal's order if that party wishes to appeal against the Tribunal order.
   
6. In this case the relevant Tribunal Order has been made on the 1st April 2011. However the Appellant has not taken any steps to file a notice of appeal within 14 days. The JDS is served on the 16th June 2011 and the application for leave to appeal out of time is filed on the 12th July 2011. At a glance it appears that the Appellant has not acted in a diligent manner for three months even after the JDS was served on him.
   
7. Therefore it is the primary obligation of the Appellant to satisfy this Court that he failed to appeal on time due to a justifiable reason and that he took all possible measures to act with due diligence afterwards. Further it should be noted that at this stage the Court will not look into the merits of the claim or the grounds of appeal and the Court is saddled only with the limited task of considering whether the delay is justifiable and if so whether leave can be granted to appeal out of time.
   
8. I have considered the affidavits filed by both parties. The Appellant admits that he received the notice of the claim number 379/2011 which was returnable on 24th February 2011. He further admits that he appeared in the Tribunal on the 24th February and the claim was adjourned to 1st April 2011.
   
9. The Appellant states that he could not appear on the 1st April 2011 as he had to attend to some urgent family commitments. The Appellant thus states that the Tribunal has made the order when he was away in overseas.
   
10. The Appellant further states that he informed the Officer in charge of the Tribunal by the name of Joji that he will not be able to attend the Tribunal. In this regard firstly, it should be noted that there is no system of asking for adjournments in a Tribunal or a Court of law by calling the staff members. If a party needs to make any application, such party has to either make representations personally or an agent has to be authorized to attend the proceedings at the Tribunal. Secondly it appears that there was no officer in charge by the name given by the Appellant. Thus I refuse to accept the submissions of the Appellant that he has informed the Tribunal before he left for the above mentioned reasons.
    
11. Be that as it may, I will now consider whether the fact that the Appellant had to go overseas due to an urgent family commitment can be considered as a reasonable ground to allow this application. Firstly it should be noted that although the Appellant has stated that he had to attend "an urgent family commitment" nowhere in the motion or in the supporting affidavit it has been divulged the nature or the urgency of the family commitment. If a party seeks relief from a Court of law it is of utmost importance that such party divulges all the important facts to the Court. The Appellant failed to disclose how urgent and necessary it was for him to go abroad. In an application of this nature the Court has to strike a balance between the failure to attend the Tribunal and the importance of the overseas trip. In absence of any explanation as to the urgent nature of the purpose he had to go abroad the Court cannot decide whether the Appellant should be excused or not. For instance going on a holiday or paying visit to a family member will not be a reason which will supersede the importance of attending a Tribunal hearing. A court of law will not act on reasons shrouded with secrecy.
    
12. Further the Appellant informs Court that he was abroad on the 1st of April 2011 when the Tribunal made the order. To corroborate his claim the Appellant has annexed a copy of his travel documents as RM2. I have perused the said documents. It appears that the Appellant had been in Australia from 14th March 2011 to 23rd May 2011. However in absence of any explanation to verify the urgency of the matter he had to attend, the Court cannot come to a conclusion that attending the Tribunal can be excused.
    
13. The Appellant has stated in his affidavit that he is a company director. Therefore it appears that the Appellant has at least a minimal education level to understand the importance of defending a claim against him at a Tribunal. If he had such an urgent matter to attend, it would not have been that difficult for him, being a company director to arrange someone else to represent him. It does not appear that even after returning to Fiji he has tried to find out about the status of the claim. Had he done so an application for leave to appeal could have been filed a long before. It should be noted that; "equity aids the vigilant, not those who slumber on their rights."
    
14. It should also be noted that the procedural laws set out time limits to shut out frivolous applications and to avoid laws delays. Unless there are very reasonable and justifiable grounds exist no Court of law will consider relaxing those time limits set out in the legislation.
    
15. I am not satisfied about the explanation for the undue delay on the part of the Appellant. In the circumstances this application seems nothing less than a tactic to delay litigation and to prevent the Respondent from reaping fruits from the order of the Tribunal.
    
16. On the foregoing reasons I strike out this application for leave to appeal out of time with 100 dollars cost.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka
15.08.2012