Tausere v Clayton [2015] FJHC 902; HBM141.2014 (18 November 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Miscellaneous Action No: HBM 141 of 2014

BETWEEN:

NEMANI TAUSERE
Applicant

AND:

ELIZABETH CLAYTON
Respondent

COUNSEL : Mr. A. Vakaloloma for the Applicant
Respondent in Person

Date of hearing : 19th October, 2015
Date of Ruling : 18th November, 2015

RULING

[1] The respondent made an application to the Small Claims Tribunal to recover the arrears of rent amounting to $ 3900 from the applicant.

[2] On 04th October 2012 the Small Claims Tribunal ordered the applicant to pay the said amount as arrears of rent to the respondent and the applicant was served with the Judgment Debtor Summons.

[3] The applicant lodged an appeal to the Magistrate's Court against the decision of the Small Claims Tribunal which was struck out by the learned Magistrate on 29th May 2013. On 28th March 2014, after ten months, the applicant through his solicitors filed an application for the extension of time to appeal. The learned Magistrate refused the application for the extension of time. According to the depositions contained in the affidavit tendered by the applicant in support of the notice of motion seeking extension of time, the learned Magistrate, on 11th September 2014 refused the application seeking leave for enlargement of time and struck out the motion.

[4] Against the said order of the learned Magistrate the applicant filed this application on 24th September 2014 seeking extension of time to seek leave to appeal and to file grounds of appeal out of time. The learned counsel for the applicant submitted that the Court must be reminded that the applicant was unrepresented and at all times representing himself since the commencement of this case. The applicant does not give any reason for not retaining a lawyer at the time he preferred his appeal to the Magistrate's Court against the finding of the Small Claims Tribunal. The learned counsel also submitted that the applicant did not know the civil process. If, what the learned counsel means from this statement is that the applicant did not know the law, it cannot be pleaded as an excuse for not preferring an appeal in time. The applicant cannot be heard to say that he did not know the civil process because he has in fact preferred an appeal against the order of the Small Claims Tribunal.

[5] In the case of Toma Beuka v The State [2002] FJHC 110; HAA 0013D.2002S In considering an application for leave to appeal out of time, a Court generally considers the length of delay, the reasons for the delay, whether the appeal has any prospects of success and whether an injustice will arise if leave is refused.

[6] In Delana v The State [2005] FJHC 173; HAM 0034J.2005S it was held that the appeal period can be enlarged for good cause. This may include the appellant's difficulties in obtaining the Court record, lack of legal representations and constraints suffered in custody. The appeal period may also be enlarged where there are obvious merits in the appeal.

[7] In the instant case the explanation offered by the applicant for the delay in coming to Court cannot be considered as reasonable. He has had no difficulty in obtaining the services of a lawyer nor has he had any difficulty in having access to the Court records as held in the cases of Toma Beuka v The State (Supra) and Delana v The State (supra). The applicant, as I have stated earlier in this ruling, had in fact preferred an appeal against the order of the Small Claims Tribunal.

[8] The applicant has averred in his affidavit that the learned Magistrate erred in law and in fact in refusing to grant leave despite the fact that the appellant was not given an opportunity of being heard. There are no materials on record for the Court to form an opining as to what transpired before the Referee of the Small Claims Tribunal. However, it is clear from the ruling of the learned Magistrate dated 29th May 2013 that the Referee who ordered the applicant to pay $ 3900 in three months had later changed it and ordered him to pay $ 200 per month. This would not have been done by the Referee on his own accord without a request from the applicant. Therefore, there cannot be any truth in the allegation that the Referee made the order without hearing the applicant.

[9] The applicant also alleges as a ground of appeal that the proceedings were conducted in a manner that was unfair and very prejudicial to the applicant but except for this bear allegation the applicant has not deposed to in his affidavit the basis for this allegation.

[10] The learned Magistrate in her ruling has considered the law relating to the proceedings before the Small Claims Tribunal and the proceedings had before the Referee, before arriving at the conclusion that the applicant and the respondent had been given equal opportunity of being heard prior to the ordering the applicant to pay $ 3900 to the respondent.

[11] Order XXXVII Rule 1 of the Magistrates' Court Rules provides as follows;

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 the judgment is pronounced.

[12] In the affidavit of the applicant has no deposition to the effect that he gave notice of intention to appeal as required by the above provisions. However, in the submission of the learned counsel for the applicant it says thus;

"In this case we submit that the Appellant was within 7 days allocated above, therefore there was no delay."

[13] It is difficult to understand what the learned counsel meant by saying that they were within 7 days allocated by the above provisions. This cannot be an application for the enlargement of time to file notice of intention to appeal. If it is so the application must fail in limine for the reason that the Court has no power to extend the time period allocated to file notice of intention to appeal.

[14] In Crest Chicken Ltd v Central Enterprise Ltd [2005] FJHC 87; HBA 0013j.2003s it was held that in Order XXXVII Rule 1 there is no provision for extension of time to give notice of intention to appeal, although there is power to extend time to file grounds of appeal.
[15] On a careful perusal of the record of the Magistrate's Court I find that the applicant has not given notice of intention to appeal from the order of the learned Magistrate and the application for extension of time to appeal has been refused by the learned Magistrate on that ground.

[16] Since the applicant has failed to file notice of intention to appeal within the time prescribed by law the issue whether the Court should grant an extension of time to seek leave to appeal and to file grounds of appeal does not arise for consideration.

[17] The applicant has also failed explain the long delay of ten months in making this application.

[18] For the reasons aforesaid I make the following orders.

ORDERS.

1. The application for extension of time to seek leave to appeal and to file grounds of appeal is refused.
   
2. The applicant shall pay the respondent $ 500 as costs (summarily assessed) of this application.
   

Lyone Seneviratne
JUDGE

18.11.2015