Uluimoala v Gideon [2015] FJHC 713; HBA01.2015 (29 July 2015)

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

HIGH COURT APPEAL NO.: HBA 01 OF 2015
JDS CASE NO.: 64 OF 2014

BETWEEN:

APAKUKI ULUIMOALA
APPELANT

AND:

SURENDRA KUMAR GIDEON
RESPONDENT

Appearances : The Appellant in Person
The Respondent in Person

Date of Hearing : 29th July, 2015
Date of Judgment : 05th October, 2015
Coram : Hon. Justice R. S. S.Sapuvida

JUDGMENT

[1]. This is a record of appeal [as the "memo" describes] forwarded to the Deputy Registrar of the High Court of Fiji, Lautoka, by MenaniVatucicila [Ms], Senior Court Officer - 1, of the Magistrate's Court of Lautoka, by her "memo" dated 11 February 2015.

[2]. The original case record has been received by the High Court of Lautoka, along with a table of content as follows:

"TABLE OF CONTENT

PAGE NOS

1. Notice of Intention to Appeal 1 - 3
2. Magistrates Minutes 4 - 10
3. Judgment Debtor Summons (03.04.14) 11
4. SCT Order (13.03.14) 12
5. Supplementary Affidavit 13 – 14
6. Warrant to Arrest 15
7. Bail Undertaking (29.10.14) 16
8. Medical Certificate (13.08.14) 17
9. Ruling (03.12.14) 18 – 22
10. Letter (Apakuki to do payment) 23 – 24
11. Payment Voucher 25
12. Order for Release of Cash Bail 26"
    

[3]. The case then having been assigned, referred to me by the Senior Court Officer of the High Court of Lautoka, with a minute for my directions.

[4]. The minute reads: "Sir, Respectfully submitted herewith is a matter appeal from the magistrate's court appealing the decision of the magistrate, for your lordship's directions".(Emphasis added)

[5]. Having presumed that the pre-hearing steps have properly been followed by the appellant and the respective Registries, I made directions to the Registry of the High Court to dispatch notice on all parties to appear in court for mention on 6 July 2015 to fix a date for the hearing.

[6]. The appellant in the meantime had requested for an adjournment on 06 July 2015 by way of an undated letter addressed to the Deputy Registrar of High Court, Lautoka to call the matter on the 20th of July 2015, with no notice to the respondent of his letter.

[7]. Since the appellant's request regarding the postponement was without notice to the respondent, the matter was mentioned in court on 06 July 2015 as scheduled, and fixed for hearing on 29 July 2015 with notice to the appellant through the Registry. The respondent appeared in person and opposed to an adjournment being so considered on the request of the appellant.

[8]. Having explained to the respondent of his right to incur his costs against the appellant, and also the reason for calling on 06 July 2015, I set up the date for hearing of the appeal as mentioned above.

[9]. Then the matter was taken up for hearing on 29 July 2015. The appellant appeared in person and did implore court to conclude the hearing by way of written submissions for which the respondent too extended his agreement reserving his right to file his reply within 7 days thereafter.

[10]. The date for the ruling was then fixed on 03 September 2015.

[11]. The appellant had not filed his written submissions, for me to settle the ruling. The respondent too had not filed and correctly remained silent obviously since he had no basis to reply.

[12]. When the matter was mentioned on 03 September 2015, the appellant begged for one further date to file his written submissions with respondent's agreement to file his submissions within 14 days thereafter.

[13]. Having invited my attention to the fact that the both parties were appearing in person, and having given due regard to the fact that it is not appropriate to look at the short cuts to dispose lawsuits of this nature, only why I considered those applications for extension of time to have their submissions filed and to make the ruling.

[14]. The day was downed for me to prepare the judgment, and yet the appellant had not filed his written submissions for the second time, so did the respondent who in deed has the right to linger silent.

[15]. Having given ample time for the appellant to file his submissions, and for the respondent his right to reply thereafter, I find the noncompliance of the directions given to the appellant is, as if he has abandoned his appeal.

[16]. However, without summarily dismissing the appeal for noncompliance of the directions, and in view of placing further steps hereinafter take place in the lower court in the proper order, I put my thoughts in the following manner before transmitting the case back to the lower court.

[17]. I prefer to begin the chronicle from the day that Learned Magistrate delivered her Judgment in favor of the respondent. This runs back to the 3rd day of December 2014.

[18]. The appellant has then filed the Notice of Intention to Appeal on 05 December 2014. It was well within the provisions of Order XXXVII, rule I, of the Magistrate's Court Act which provides provisions as follows:

ORDER XXXVII.-CIVIL APPEALS

I. Notice of Intention to Appeal

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.

[19]. The notice of intention to appeal was not given by the appellant to the court in the presence of the opposite party (respondent) immediately after the judgment was pronounced. If that was so, the mandatory rule of giving notice to the opposite party stands as comply with by the appellant. The appellant filed the notice of intention to appeal in writing two days after the judgment was pronounced. However, there is no evidence in the case record to prove the fact that whether or not the notice was given to the respondent in writing by the appellant, though the notice of intention to appeal was filed. This is where the Registry of the lower court has made its first wrong turn.

[20]. Moreover, upon receiving the notice of intention to appeal, the court below may in its discretion order the appellant to give security, to the satisfaction of the court.

[21]. The rule II, provides provisions for this as follows:

II. Security for Payment of Costs

Security for payment of costs.

Appendix A. Form 35

2. (1) Upon receiving notice of intention to appeal the court below may in its discretion order the appellant to give security, to the satisfaction of the court if the parties differ, in such sum as the court shall direct, either by deposit, or by bond in Form 35 of Appendix A, for the payment of all such costs as may be awarded to any respondent by the appellate court.

(2) Where the security is by bond:-

(a) the bond shall, unless the court otherwise directs, be given to the respondent;

(b) if the appellant is unrepresented, the bond shall be prepared by the court.

[22]. Of course the security for payment of costs is a matter for the court to impose if it may think fit to do so which is in other words, totally a matter of discretion.

[23]. Now I move on to the most important segment of the whole process of this appeal.

[24]. The rule III explains the grounds of appeal as follows:

III. Grounds of Appeal

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.

(2) At the time the appellant files the grounds of his appeal he shall deposit with the clerk of the court below such sum as the clerk shall consider sufficient to cover the fees prescribed in Appendix B for the preparation, certification and copying of the record.

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.

Amendment of grounds of appeal

5.The appellant may, at any time, by leave of the appellate court, amend or add to the grounds of his appeal upon such terms, as to payment of Costs or otherwise the appellate court may prescribe.

[25]. Having perused the original case record and the copy record sent by the Registrar of the magistrate's court, observe that no grounds of appeal filed by the appellant nor he has made any application for extension of time to file the same.

[26]. Hence, the appeal filed by the appellant on 05 December 2014 should have been considered by the lower court as abandoned since he has failed to file the grounds of appeal within the prescribed time. Then the transmission of the case record to the appellate court does not arise with the Registry of the court below.

[27]. The court below shall transmit the case record to the appellate court, only when the filing of grounds of appeal, and that is within seven days from filing the grounds of appeal.

[28]. The rule V explains the above position.

V. Transmission of Record

Contents of record of appeal

7. Within seven days from the filing of grounds of appeal, the court below shall, without the application of any party, make up the record of appeal, which shall consist of the writ of summons, the pleadings (if any), all documents admitted as evidence or tendered as evidence and rejected, the notes of the evidence, the judgment or order of the court below and the grounds of appeal. The record of appeal, when completed, shall be forwarded to the Chief Registrar or clerk of the appellate court as the case may be.

[29]. Therefore, the case record along with the other bundle of documents speaks in rule V, should not have transmitted to this court by the court below without the appellant's grounds of appeal, being filed of record.

[30]. The appeal filed by the appellant by way of only a notice of appeal dated 05 December 2014 should have been considered by the court below as abandoned.

[31]. Nevertheless, the appeal record is now placed before me stand still without the grounds of appeal, without the appellant's submissions, and with appellant not taking any interest on the same.

[32]. All in all I see that on the appellant failing to file the grounds of appeal within the prescribed time, he shall be deemed to have abandoned the appeal. He did so when he failed to file it on or before 03rd January 2015.

[33]. For the reasons explained, I dismiss the appeal with costs summarily assessed $ 500 to be paid by the appellant to the respondent within fourteen [14] days from this order.

[34]. I shall now direct the Deputy Registrar of this court to transmit the case record back to the court below for prompt & expeditious enforcement of the judgment delivered by the lower court including the recovery of the costs ordered in this court against the appellant.

[35]. I further direct the Deputy Registrar of this court to endorse these orders in his certificate when the case record is transmitted to the court below.

R.S.S. Sapuvida
Judge

5th day of October 2015.
At Lautoka.