iTaukei Land Trust Board v Pacific Shores Ltd [2012] FJHC 951; HBA2.2012L (16 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL APPELLATE JURISDICTION

Civil Appeal No: HB A 2 of 2012L
Appeal from the Nadi Magistrates Court Civil Action 569/2010

BETWEEN:

iTAUKEI LAND TRUST BOARD
Applicant

AND:

PACIFIC SHORES LIMITED

Respondent

JUDGMENT ON AN APPLICATION TO EXTEND TIME TO APPEAL

Judgment of: Inoke J.

Counsel Appearing: Mr P Nayare (Applicant)

Mr S Ram (Respondent)

Solicitors: In-house solicitors (Applicant)

Rams Law (Respondent)

Dates of Hearing: 14 March 2012

Date of Judgment: 16 March 2012

INTRODUCTION

[1] This is an application to extend the time to appeal from a Nadi Magistrates Court decision. The judgment was delivered on 18 October 2011 in favour of the respondent. The application was filed on 1 February 2012 which is about two months late.

THE BACKGROUND

[2] The respondent was the plaintiff in the lower Court. Its claim was for the return of $20,000 which it alleged to have been paid under protest to the applicant under a lease agreement for what it says was compensation for an alleged breach of the lease contract which breach did not take place. The action went to trial and on 18 October 2011, the learned Magistrate delivered a judgment in favour of the respondent for $20,000, interest and costs. The relevant parts of the judgment are as follows:

[21] The plaintiff in evidence told (the Court) that the Defendant never informed him about any breach of condition of the lease during the 9 years period he held the lease under the Defendant. It was only when the Plaintiff sought consent for the assignment of the lease to a third party, (that) the Defendant demanded $20,000 as compensation for breach of the lease condition.

[22] If there were any breach(es) of the lease conditions on the part of the Plaintiff, the Defendant should have informed and afforded an opportunity to the Plaintiff to explain the alleged breach(es). This was not done by the Defendant.

[23] It is true that the Defendant may impose lease condition and penalty for breach of any such condition in terms of section 4 of the Native Land (Leases & Licenses) Regulation, Legal Notice No 98 of 1984. However, this power must be exercised fairly. No notice of breach of the lease condition was given to the Plaintiff by the Defendant.

[24] The Plaintiff stated that he provided all the evidence regarding the training but the Defendant failed to review the payment of compensation till today.

[25] It was not disputed fact that the Defendant received the sum of $20,000 form the Plaintiff. This is not denied by the Defendant in the Statement of Defence. Now the Defendant cannot ask for a receipt in proof of the payment.

[26] The Defendant did not adduce any evidence, documentary or other wise, to establish the alleged breach of the lease condition by the Plaintiff.

[27] In the circumstances (I) hold that the Defendant had recovered the sum of $20,000 from the Plaintiff without any legal justification hence the Plaintiff is entitled to refund of it on the basis of money had and received.

[3] Following that judgment the defendant filed a motion in the Magistrates Court for leave to appeal out of time. Another Magistrate heard the application on 19 December 2011 and ruled on 11 January 2012 that the Magistrates Court had no jurisdiction to extend the time to appeal and dismissed the motion. That ruling appears to be correct according to the decision of Pathik J in Crest Chicken Ltd v Central Enterprises Ltd [2005] FJHC 87; HBA0013j.2003s (19 April 2005). That is not being challenged in this Court so I need not say anymore about it.

[4] The defendant now makes the same application to this Court. The application is made pursuant to the provisions of Part V of the Magistrates' Courts Act.

THE CURRENT APPLICATION

[5] It is not contested, and I think rightly, that this Court has no jurisdiction to entertain this application to extend the time to appeal. No grounds of appeal have been filed. The time set for filing such grounds is within one month from the date of the decision appealed from: O 37 r 3(1) of the Magistrates' Courts Rules. That time has passed but O 37 r 4 allows this Court to extend time as it sees fit.

[6] As to the defendant's right of appeal, s 36(1)(a) of the Magistrates' Courts Act allows it to appeal as of right and s 39 vests this Court with the power to entertain the appeal on any terms which this Court thinks just.

[7] As it often happens, this application was heard without the Magistrates Court record being available. However, I feel that the application can be decided without the record because the learned Magistrate had set out fully in his judgment the evidence and the reasons for coming to his verdict.

[8] The delay in the filing of the appeal was said to be due to counsel being under a heavy workload leading him to "overlook the time required to appeal".

[9] In Vimal Construction and Joinery Works Ltd v Vinod Patel and Company Ltd (2008) FJCA 98; ABU0093.2006S (15 April 2008); affirmed in Woodstock Homes Fiji Ltd v Rajesh (2008) FJCA 104; ABU0081.2006S (18 April 2008), the Court of Appeal said:

[15] ... in 2008 litigants should not assume that leave will be given to bring or maintain appeals or other applications where those appeals or applications are out of time unless there are clear and cogent reasons for doing so. A contention as to incompetence of legal advisers will rarely be sufficient and, where it is, evidence "in the nature of flagrant or serious incompetence" (R v Birks (1990) NSWLR 677) is required.

[16] In this Court's view it is difficult to see why "merit" of the appeal or proceeding, without more, would justify an extension of time except where the delay was minimal and no prejudice was occasioned by a respondent.

[10] Does the appeal have merit? The defendant has put forward 8 grounds of appeal. They all relate to the Magistrates' exercise of discretion in the conduct of the trial and his findings of fact. The grounds also refer to findings of law, but Counsel for the applicant could not point to any such findings in the judgment which were said to be wrong at law. Indeed, some of the findings of fact which Counsel said the Magistrate made were not in fact made.

[11] I cannot find any fault in the judgment of the learned Magistrate. It is well settled that an appeal Court would be reluctant to overturn a decision of a lower Court founded on the exercise of that Court's discretion unless the decision is shown to be clearly wrong at law or on the facts: Ali v Ali [2009] FJCA 66; ABU0029.2006 (3 December 2009).

[12] It is also said that the appellant must have a good arguable appeal and the burden lies on him to satisfy the court that, in the circumstances of the case, justice requires that it be given the opportunity to attack the judgment despite the delay: Silver Beach Properties Ltd v Jawan [2009] FJCA 40; Miscellaneous Action 08.2009 (2 December 2009).

CONCLUSIONS

[13] I am not convinced that the learned Magistrate was wrong at law or on the facts of this case that there was a breach of the lease contract. Further, there was no evidence tendered at the trial by the defendant to quantify any loss amounting to $20,000 or at all. I think the proposed appeal has no merit and the circumstances of this case do not justify extending the time to appeal.

COSTS

[14] I think no order as to costs should be made in that the defendant has paid the judgment sum into the Magistrates Court.

ORDERS

[15] The application to extend time to appeal is refused.

[16] No order as to costs.

............................................................
Sosefo Inoke
Judge