Crest Chicken Ltd v Central Enterprises Ltd [2005] FJHC 87; HBA0013j.2003s (19 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 13 OF 2003

(On an Appeal from the Magistrate’s Court Nausori Civil Action No. 20 of 2002)

Between:

CREST CHICKEN LIMITED
Appellant
(Original First Defendant)

and

CENTRAL ENTERPRISES LIMITED
First Respondent
(Original Plaintiff)

and

DETECTIVE CORPORAL ATALIFO WISE
Second Respondent
(Original Second Defendant)

Mr. R. Naidu for the Appellant
Dr. S. Sahu Khan for the 1st Respondent

JUDGMENT

This is an appeal against the judgment of the Magistrate’s Court at Nausori delivered by the Resident Magistrate Mr.V. D. Nadakuitavuki on 17 March 2003.

The learned Magistrate ordered that the first defendant/appellant (Crest Chicken Limited) and the second defendant/second respondent (Detective Corporal Atalifo Wise) pay to the plaintiff/first respondent (Central Enterprises Limited & Another) the sum of $7,500.00 each as exemplary damages.

Background

The background to the case is sufficiently stated as follows in the plaintiff’s/Respondent’s submission filed in Magistrate’s Court on 18 December 2002:

The Plaintiff runs a butcher business in a busy part of Nausori Town. The First Defendant being a limited liability company can only act through servants/agents and/or officers. The Plaintiff claims that the First Defendant’s representatives on or about the 16th day of March 2001 accompanied by the Second Defendant, a police officer, without the consent of the Plaintiff unlawfully searched the Plaintiff’s business premises for certain allegedly stolen chicken and wrongfully took away stock of chicken from the Plaintiff’s business premises.

On the first visit a search was made Then later in the late afternoon, the Sales Manager of the First Defendant Simon Zoing accompanied by the Second Defendant came again and wanted to remove the chicken and the Plaintiff demanded to see the search warrant and no search warrant was produced. Instead only a search list document was produced and a copy given to the Plaintiff (See Exhibit 2).

The chickens were then taken away in the First Defendant’s vehicle and that was the last of it.

The Plaintiff was never charged with any offence nor the chicken returned to it.

The Plaintiff claims against the First Defendant for unlawful search and seizure, trespass and in detinue of detaining the Plaintiff’s goods. The claim against the Second Defendant is the same except the additional claim for abuse of office. Accordingly, unless stated otherwise, the submissions herein refer to the conduct of both the Defendants.

The issues (in Magistrate’s Court)

There were four issues, namely;

(i) the joint actions of the first and second defendants
(ii) the issues of Trespass
(iii) the application of the Rule in Browne v Dunn
(iv) Damages

The appeal

The judgment in this case was delivered by the Magistrate on 17 March 2003 against both the defendants in the total sum of $15,000.00 ($7500.00 each).

The Notice of Intention to Appeal and Grounds of Appeal were both filed in the Magistrate’s Court on 4 April 2003.

This meant that the first defendant’s appeal was filed approximately a week and a half out of time. These were accepted by the Magistrate and he allowed a stay of execution of the said judgment on an application made by the first defendant on the said 4 April 2003. The stay was granted on 17 July 2003 on the basis: “(i) Re-assessment of Damages granted by the lower court and (ii) the first defendant to pay into Court the sum of $7,500.00 (Seven Thousand and Five Hundred Dollars), until final judgment by the High Court,” (p.124 of Record).

The said sum of $7,500.00 was deposited into Court on 4 September 2003 as per the said Order of 17 July 2003.

Grounds of appeal

The Grounds of Appeal are as follows:

1. That the Learned Magistrate erred in fact and in law in awarding damages for humiliation in the sum of $15,000.00 (Fifteen thousand dollars).
   
2. The Learned Magistrate failed to consider the contribution made by the First Respondent in relation to the supposed humiliation suffered.
   
3. The Learned Magistrate found the Second Respondent acted unlawfully and then incorrectly awarded damages against the Appellant.
   
4. The Appellant reserves the right to adduce further grounds of appeal once the Court Record is made available.
   

Further Grounds of Appeal were also filed.

The first defendant/appellant abandoned grounds 2 and 3 of the original grounds and ground 5 of the additional grounds of appeal.

The issue for Court’s determination in this appeal, as far as the Respondent is concerned, is whether the judgment of the Magistrate’s Court in accepting the Notice of Intention to Appeal out of time was valid in accordance with Order 37 Rule I of the Magistrate’s Courts Rules, and whether in making that decision the Magistrate was acting within his inherent jurisdiction.

The Respondent’s claim

It is the respondent’s claim that the application by the appellant should not have been accepted by the Magistrate as the provision of Order 37 Rule I does not give a right of extension of time to file Notice of Intention to Appeal out of time.

The respondent wants the action dismissed with costs to the Respondent.

Consideration of the appeal

I have considered the submissions (both oral and written) from counsel.

The issue is very simple. Dr. Sahu Khan says that the Magistrate acted ultra vires in accepting the Notice of Intention to Appeal out of time. It follows that he could not have accepted the Grounds of Appeal followed by application for stay the same day.

As for award of exemplary damages the respondent says that the Magistrate was right in doing so.

Statutory provision for Time to file Notice of Intention of appeal

It is Or 37 Rule I of the Magistrate’s Courts Rules which sets out the time within which Notice of Intention to Appeal shall be given. The Order reads as follows:

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. (Substituted by Rules 20th November, 1946, and amended by Rules 6th November, 1950.)

This is a mandatory Rule and it does not give the Magistrate power to extend time. Even if he had, no application was made by the appellant for extension for it was already late in filing or giving Notice of Intention to appeal within the seven days after judgment was pronounced.

Had the legislature intended it could have specifically provided for application to extend time. It did not do so in Or. 37 R.1 but Or. 37 R.4 which provides as follows, gave the Magistrate’s Court power to extend time to file grounds of appeal.

4. On the appeal 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.
   

On Grounds of Appeal under Or 37 R3(1) it is stated:

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.

It is accepted by the appellant that the Intention to Appeal was filed out of time but the grounds of appeal were within time.

Order 37 r1 of the Magistrate’s Courts Rules is abundantly clear that ‘every appellant shall within 7 days after the day on which the decision was given’ give notice in writing of intention to appeal.

In Taylor v Waikohu County Council [1922] N.Z.L.R it was held that the ‘formalities required by the statute must be complied with’. There Reed J said that ‘the objections to the appeal are well founded, and that the appeal should be dismissed’.

In Crowe v McWatt (Vol.XXXIII – Invercargill N.Z. 1913) a similar issue was raised, namely, whether the appellant has complied with the provisions of s303 of the Justices of the Peace Act (similar to Or 37 r1 supra). There notice was given a day after the 7 days allowed. The Court (Williams J) held that:

the ‘provisions of s303 are mandatory, unless compliance therewith is excused by reason of the default of the respondent, or unless the appellant after doing all in his power to comply with the section, is prevented from so doing by the absence or conduct of the Magistrate’.

Williams J said that ‘this Court has no general jurisdiction to dispense with the provisions of the statute’. The Court said that ‘the matter is one involving an important principle, and I am afraid that I have no jurisdiction’.

When the application was made by the appellant before the Magistrate for stay of judgment the respondent opposed it stating that the Notice of Intention to appeal was out of time. Despite that the learned Magistrate accepted the Notice and Grounds of Appeal and allowed a conditional stay.

In the light of the statutory provisions particularly Or 37, since no extension of time has been applied for or granted to the giving of Notice of Appeal or the Grounds of Appeal, the steps taken by the appellant to obtain the stay are irregular and cannot be cured. Hence, it was ultra vires the Magistrate to hear the application for stay.

In Or. XXXVII r. 1 there is no provision for extension of time to give Notice of Intention to Appeal, although there is power to extend to file Grounds of Appeal under Or .37 r. 4.

It is to be noted that the questions of time to appeal or to file grounds of appeal are not automatic. Under Order XXVI of the Magistrate’s Courts Rules an application has to be made by motion supported by an affidavit. In this case there was no such application.

The abovementioned issue was raised by the respondent before the Magistrate. Even at that stage no such application was made by the appellant. Dr. Sahu Khan emphasizes that the appellant was thus put on notice of the invalidity of the Appeal. It ignored this and proceeded with this matter maintaining that the appeal was not out of time when it clearly was to the contrary.

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. In Ratnam v Cumarasamy 1964 3 All E.R. 933 at 934 that:

“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” (underlining mine for emphasis)

In this case although the appeal was out of time and there was no application to extend time the Learned Magistrate went ahead and granted a stay.

On delays in filing and the importance of complying with the Rules, in Tevita Fa t/a Tevita Fa & Associates and Tradewinds Marine Ltd and Oceanic Developers (Fiji) Ltd (Civ. App. No. 40/94 FCA) Thompson J.A. said:

“The application for leave to appeal was filed only 4 days after the end of the period of six weeks. That is a very short period but time-limits are set with the intention that they should be observed and even lateness of only a few days requires a satisfactory explanation before an extension of time can properly be granted. In this case, as stated above the applicant has given no explanation at all. That he may have been confused is merely an inference that Mr. Patel has asked me to draw from his statement of present belief that time began to run only from 8 August 1994.” (emphasis added)

Dealing with the subject of delay and non-compliance with Rules, Lord Denning M.R. expressed his view clearly in Revici v Prentice Hall Incorporated & Others (1969 Q.B. D. p157 at p.159) as follows:

“Nowadays we regard time very differently from the way 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 a half months 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 any more.” (emphasis added)

Conclusion

In the outcome for the above reasons the appeal before the Court is invalid for non-compliance with the mandatory provisions of Or. 37 r. 1 of the Magistrate’s Courts Rules. There was never at any time an application to apply for extension of time to give Notice of Intention to Appeal out of time or to file Grounds of Appeal. This was a sine qua non to enable the learned Magistrate to consider the stay application herein.

This being the case, as I have found, and in view of the orders which I will make I do not consider it necessary to deal with the Grounds of Appeal or the appeal.

It being an irregular appeal and one not capable of being cured in the light of the authorities referred to hereabove, I dismiss the appeal with costs which I summarily assess at $500.00 to be paid within 21 days.

(D. Pathik)
Judge

At Suva
19 April 2005